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Somerset County Council v NHS Somerset Clinical Commissioning Group & Ors [2022] EWFC 31

Guidance on the proper approach where there has been a breach of the medical requirements of the Adoption Agencies Regulations 2005

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Having conducted an internal review, Somerset County Council ("SCC") identified twelve children who had been placed for adoption in circumstances in which the medical requirements of the Adoption Agencies Regulations 2005 ("AAR 2005") had not been complied with. SCC applied to the Family Division under Part 18 of the Family Procedure Rules 2010 seeking a declaration that the placement order made with respect to each child "was lawfully made," which Mrs Justice Roberts granted in respect of ten of the children (two of the children's placements had broken down and so this was no longer a live issue).

SCC subsequently identified 200-300 other children – either at an earlier stage in the adoption process, prior to the making of a placement order, or had actually been adopted – where similar breaches of the AAR 2005 had occurred, and sought similar declarations from the court. The reporting of the initial case in front of Mrs Justice Roberts prompted local authorities across the country to review their own compliance with the regulations, with many discovering that they, too, had been in breach of the medical requirements of the AAR 2005. As such, SCC's case was transferred to the President in order to provide guidance in anticipation of other, similar cases coming to court.

After conducting a thorough analysis of the law, the President determined that although there had been breaches of the AAR 2005, namely regulations 15/17, an application for a declaration as to the validity of existing placement orders or adoption orders was "neither appropriate nor required" because such orders remained valid unless and until set aside; placement orders or adoption orders that have been made, but have not been set aside or varied by the court, are therefore valid and do not require further validation by a declaration or other means. Where, on the facts of any particular case, a party to the original proceedings is concerned that a breach of the AAR 2005 may go to the validity of a placement order or an adoption order, then the appropriate challenge is by application for permission to appeal out of time. However, the court noted that it would be rare for there to be a significant health issue unknown to the Agency Decision Maker's and/or the court, that could undermine the orders' validity. The President therefore dismissed SCC's applications.

Case summary by Dr Bianca Jackson, Barrister, Coram Chambers

For full case, please see BAILII