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Re N (Children) [2021] EWCA Civ 785

Appeal against the making of a placement order. Breach of the Adoption Agency Regulations 2005. Placement order set aside.

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Background

M (now 6) and her older brother, T (13), were made subject to care orders in June 2020.  The placement order application was deferred. The mother applied to discharge the care order for M. HHJ Richards heard the applications together. He dismissed the mother's application and made a placement order on 21 December 2020.

Mother appealed. Permission was given on the ground that the judge had not demonstrated that adoption was the only option for M in the circumstances.  The LA and guardian contested this ground of appeal. 

Appeal

The parties agreed that the placement order should be set aside for procedural reasons.  There had been a breach of the Adoption Agency Regulations 2005. When she made her decision, the ADM did not have a health report from the medical adviser as required by Regulation 15, or advice that no such report was required. In addition, the Child Permanence Report did not include a medical summary by the medical adviser as required by Regulation 17. The local authority sought to withdraw the underlying placement order application and intended to present M's case to the ADM again and issue a new application.

The Court took a pragmatic course and discharged the placement order. The outcome reflected the unique circumstances that arose. It does not have any implications for future decisions about M or other cases.  

Not every breach of regulations will justify the upsetting of an order Re B (Placement Order) [2008] 2 FLR 1404.  The Court did not enter into any discussion of the issue.  It appears the breach may not be restricted to this case and it may be necessary for the High Court to rule on the consequences in other cases.

Case summary by Victoria Roberts, Barrister, Coram Chambers

For full case, please see BAILII