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Adoption: Suitability, the Independent Review Mechanism [IRM] and financial support

Mary Lane looks at the lessons for adoption decision making arising from the recent case of R v Newham

Picture of Mary Lane

Mary Lane, Independent Adoption Law Consultant

The Queen [on the application of A.T and S] and the London Borough of Newham EWHC 2640 (Admin] 27th October 2008

This judicial review is a valuable addition to the growing volume of case law about adoption. It is the first to address issues in the assessment of prospective adopters, decision - making about suitability to adopt, and the contribution of the IRM to these processes.

The judgment also clarifies the law and local authority duties in assessing the need for financial support to families adopting ‘looked after ‘children.

The London Borough of Newham’s decision not to approve the claimants as
prospective adopters after a unanimous positive recommendation of suitability by the IRM panel was quashed by the Administrative Court on the grounds of
’Wednesbury’ unreasonableness. LJ Bennett commented that Newham’s
decision was "bordering on the bizarre’.

The facts
The claimants Mr and Mrs T were approved foster carers for Newham when they adopted their foster son S in 2003.This adoption was originally opposed by Newham, although their opposition was latterly withdrawn.

Mr and Mrs T ceased to foster for Newham and are currently foster carers for a private agency - Parents for Children. They asked Newham to assess them as adopters of S’s half sister K when she was born in 2006.

In agreement with Newham’s adoption panel recommendation, the decision - maker refused their approval as adopters. Mr and Mrs T exercised their right to apply to the Secretary of State for an independent review of that decision. The IRM panel unanimously recommended approval, and upon the decision returning to Newham the decision – maker again refused approval. Although Mr and Mrs T’s claim was in respect of Newham’s decision not to approve them as adopters for K specifically, the judicial review ordered the local authority to reconsider Mr and Mrs A's suitability to adopt any child, for the reasons set out below.

The Independent Review Mechanism (IRM)
The IRM operates under the Independent Review of Determinations (Adoption) Regulations 2005 SI 3332. Prospective adopters can apply for a review when a ‘qualifying determination’ is made - i.e. their adoption agency, after taking into consideration their panel’s recommendation, proposes not to approve them as suitable to adopt any child, ceases an assessment before completion, or terminates an existing approval of prospective adopters. The IRM panel does not have the legal power to consider any aspect of ‘matching’ between prospective adopters and children.

The IRM review is conducted by a panel whose membership mirrors that of agency adoption panels, but the panel members are independent of the agency whose qualifying determination is under review. IRM panels receive their own medical, legal and social work advice.
The IRM panel undertakes a fresh consideration of the suitability to adopt of the applicants for the review and makes a recommendation to the agency. The review includes looking at the agency’s reasons for the qualifying determination, but is not confined to them - any other aspect of the suitability of the applicants can be considered by the IRM panel. After taking into account the IRM recommendation, the agency makes its final decision. It is not obliged to follow the IRM recommendation.

Approval of suitability to adopt must be in general
The duties of an adoption agency, when considering suitability to adopt a child, are set out in the Adoption Agencies Regulations 2005 Sl.389. This judgment confirms that decisions about suitability to adopt under Regulation 27 must be distinguished from decisions about suitability to adopt a particular child under Regulation 32. The court rejected Mr and Mrs T’s claim of procedural error in this respect. Newham’s reasons for the qualifying determination were confined to issues of suitability to adopt generally. Since Newham’s decision did not include suitability to adopt K, the Administrative Court also rejected Mr and Mrs T claim that S’s Article 8 Rights to a family life with K had been breached by Newham.

Panels recommend, agencies decide
Decisions about suitability to adopt are made by the agency, not their adoption panel. The panel, with its statutory element of independence from the agency, makes recommendations, but these are not determinative of the decision, which rests with a senior manager of the agency  known as the decision - maker. It is open to the decision - maker to disagree with panel recommendations.

However, R v Avon County Council, ex parte M [1994] 2 FCR 259 and R(Raines) v Orange Grove Foster Care Agency [2006] EWHC 1887 (Admin [2007] 1 FLR 760 are cited in this judgment as authority that the decision - maker’s reasons for departing from panel recommendations must be substantial.

LJ Bennett extends that principle to agency decisions made after recommendations by the IRM panel. Newham’s decision was unreasonable because their decision - maker had ‘not met the weight of the IRM panel's reasoning head on and dealt with it by giving clear and cogent reasons for rejecting it’.

Financial support
One of Newham’s reasons for the qualifying determination was that of Mr and Mrs T’s financial insecurity.  If Mr and Mrs T had been approved and K placed with them, their income may have been adversely affected by limitations on their employment opportunities. Newham’s view was that this could not have been remedied by financial support from the local authority, as ‘no allowance was available for babies’.

Mr and Mrs T claimed successfully that this was a misunderstanding of the Adoption Support Services Regulations 2005.

As approved adopters, Mr and Mrs T would have had legal entitlement to an assessment of their family’s support needs, including financial, to overcome obstacles to a suitable adoption. Regulation 8 [2] provides that financial support can be paid by a local authority to an adoptive family where it is necessary to facilitate a child being placed with the same adoptive family as a sibling. In consequence, LJ Bennett found that Mr and Mrs T should not have been refused approval as adopters on financial grounds. Newham argued subsequently that  financial support to an adoptive family must be means tested - Regulation 15(3] –the implication being that the amount paid may not be adequate to make up the deficit. However Mr and Mrs T countered successfully that Regulation 15[5] gives a local authority the discretion to disregard the outcome of means testing to facilitate an adoption in the circumstances of Regulation 8 [2].

Newham’s other concerns about the couples’ financial circumstances were examined by the IRM panel and found to have been resolved.
Other reasons to refuse approval
Newham also found Mr and Mrs T to be unsuitable to adopt because of their attitude to corporal punishment - Mr T admitted smacking S on one occasion for swearing. He also threatened to use "the belt" to stop S from doing something, although there was no evidence that he actually used it. The agency decision maker’s statement to the Judicial Review said ’Any such indications would normally mean that an adoption application would be refused’. There were also safety concerns in relation to S travelling alone, concerns about motivation to adopt and a lack of understanding of the difference between adoption and fostering.

LJ Bennett found that the IRM panel had examined these issues thoroughly, including with Mr and Mrs T, had been reassured by their responses and unanimously recommended their suitability as adopters.

Part of Newham’s reasons for its final decision to refuse approval was Mr and Mrs T’s negative attitude towards the local authority as recorded in the IRM panel minutes .LJ Bennett said that Newham’s decision maker ‘seems to have given little, if any weight to the Claimants’ understandable feelings that, to put it bluntly, the Defendant was against them and has been since 2001’.

Procedural unfairness
The claim for Judicial Review was brought on the grounds of procedural error and unfairness, which also breached their Article 6 Right to fair hearing. LJ Bennett found unfairness to Mr and Mrs T in the assessment and approval process. The incorrect interpretation of the Adoption Support Regulations was one instance, and withholding from the Claimants two negative reports to the adoption panel written by Newham social workers was another. The Adoption Agencies Regulations require that prospective adopters are given copies of all reports to panel [except confidential personal references] so that they have the opportunity to make representation about any points raised in them.

The IRM was introduced as part of the reform of adoption law intended to increase the numbers of adopters of looked after children. The public’s confidence in the assessment and approval process for prospective adopters had been undermined by media reports [many of them very inaccurate] about people refused approval because of smoking, being overweight, ‘too middle class’, and other ‘political correctness’ factors. There was also a need to redress considerable inconsistencies between adoption agencies in their practice in assessment of prospective adopters.

Some have expressed disappointment that the IRM is not an appeal process - its jurisdiction is to make recommendations, but it cannot force agencies to overturn their decisions. Nevertheless, the statistics over the past 4 years [available from] demonstrate that more than 40% of the IRM’s recommendations have resulted in agencies reversing their qualifying determinations. In some cases, children have now been placed with adopters originally refused approval by their agencies. The independent review of the IRM commissioned by the DCFS and published in June 2008 concluded that the IRM

‘does meet its aim of being an alternative route for prospective adopters when challenging their agency’s qualifying determination, and does support the efforts to build confidence in the adopter assessment process and to encourage more people to come forward to adopt.’

LJ Bennett’s judgment lends significant weight to the IRM’s contribution as an independent ‘second opinion’ to agency decision - making about suitability to adopt. It also emphasises the importance of fairness and transparency in this sensitive work, and should serve as a reminder to legal advisers to scrutinise their agency’s compliance with Article 6 Rights as well as checking for legal and procedural errors.