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Re B and the importance of the role and process of the adoption panel

Deborah Cullen analyses the guidance on the role and procedure for adoption panels set out in the recent Court of Appeal judgment in Re B

Deborah Cullen, recently retired Legal Consultant, BAAF

The Court of Appeal has been kept busy in recent months with cases which are important in clarifying areas of doubt about the way in which adoption decisions should be approached by both agencies and the courts. In Re B [2008] EWCA Civ 835 (judgment 17 July 2008) Thorpe, Arden and Wall LJJ allowed an appeal against the making of a placement order. The key messages from the case are that the local authority acting as an adoption agency must ensure the accuracy of the information it presents to its adoption panel and that, where the panel has made its recommendations on the basis of material misinformation, the court hearing the resulting placement order application cannot itself rectify the deficiencies in the decision making process.

The parents appealed against the making of a placement order in respect of the youngest of their three children, M. The order had been made at the conclusion of the care proceedings relating to M and his two older siblings, C and A, and the parents also sought to appeal against the making of final care orders in respect of all three children. The Court of Appeal found - as in Re T [2008] EWCA Civ 542 - that the care orders were ‘inevitable’ and had been rightly made, again making the clear distinction between the ‘adoption’ and ‘care’ decisions.

As far as the placement order was concerned, however, it was clear – and acknowledged by the local authority – that the adoption panel had been given misleading information, in particular a serious misrepresentation of the views of the experts instructed within the proceedings. At first instance, the recorder had accepted the argument of the local authority and the children’s guardian that, in the interests of avoiding delay, it was open to the court, if it considered on the evidence that M’s welfare required adoption, to disregard the imperfections in the local authority’s decision making process and grant the placement order. The Court of Appeal, reluctantly in the light of the delay this would involve for M for whom prospective adopters had been identified since the making of the placement order, held that it could not be right for the court effectively to by-pass the framework laid down by Parliament for decision making in adoption.

The facts
The three children were accommodated and made the subject of care proceedings in May 2007 following allegations of physical abuse. Initially the care plan was for re-unification, but by the time of the final hearing the local authority had concluded that there was no prospect of the children’s returning to the care of their parents (who had now separated). The care plan was for M to be placed for adoption separately from his siblings and for A and C to be placed together, possibly for adoption, but in the likely event that  no adoptive parents could be found, for long-term fostering (a ‘dual plan’ as accepted by the court in  Re P (A Child) [2008] EWCA Civ 535 ). M’s case was presented to the adoption panel in January 2008, some six weeks before the final hearing of the proceedings. The panel recommended that M should be placed for adoption and the agency decision maker endorsed their recommendation the following day, whereupon (as required by section 22 (2) of ACA 2005 and as had been provided for in previous directions) the local authority immediately issued a placement order application.

Early in the care proceedings, three experts had been instructed: a consultant paediatrician, a clinical psychologist whose brief was to assess the parents, and Dr Arnon Bentovim, a retired consultant child and adolescent psychiatrist who, together with his wife, a psychiatric social worker, was asked to assess the children’s needs and to express a view, among other things, on the appropriate placement for them and future contact arrangements. Although the reports were prepared before the panel meeting in January, no copies, nor any written summary of their recommendations or conclusions, were supplied to panel members (apart, possibly, from the medical adviser). Minutes of the panel meeting showed that panel members had made enquiries of the social worker about the experts’ reports but the answers she gave were not an accurate representation of their views, in particular those of Dr Bentovim.

At the hearing before the recorder, counsel for the parents argued that the placement order application should be adjourned to allow M’s case to be referred again to the adoption panel on the basis that the decision in favour of adoption was procedurally flawed, since the panel recommendation had been made after the members had been given a false impression of Dr Bentovim’s views. The recorder however decided that, since in the hearing before him the questions relating to the children’s welfare had been fully debated and he had reached the reasoned conclusion that it was in M’s best interests to be adopted, little would be achieved by allowing the panel an opportunity to reconsider the case. In the interests of avoiding delay for M he concluded that it was open to him to make the placement order.

The Judgment
The Court of Appeal held that the Recorder had been wrong because it was not open to the court to by-pass or short circuit the framework laid down by Parliament. As Re P-B (Placement Order) [2006] EWCA Civ 1016 showed, a local authority cannot make an application for a placement order until it has reached the conclusion that the child should be placed for adoption  after following the process set out in the Adoption and Children Act 2002 and the relevant regulations, The regulations provide that it cannot make such a decision without taking into account the recommendation of its adoption panel (whether or not the recommendation is in favour of adoption). Where, as in this case, the panel recommendation is flawed in a material respect, the agency decision maker cannot properly consider it and cannot therefore decide that the child should be placed for adoption. It was also significant that (as had been pointed out in a written opinion requested by the court from CAFCASS Cymru legal advisers) the court could not make a placement order without an application. If the application had been wrongly made, as the Court of Appeal concluded it was, then even if the court itself believed that the child should be adopted, it could not make a placement order. It could under the Children Act 1989 make a care order with a care plan for adoption, but that was not a basis on which the provisions of the Adoption and Children Act 2002 could be by-passed. The placement order would be set aside; the local authority should refer M’s case to the adoption panel anew, and, if they still reached the same conclusion, a fresh placement order application should be issued and considered by the court.

Implications for practice
The judgment explicitly sets out guidelines for good practice to be followed. The key messages are the importance of ensuring that accurate information is provided to the adoption panel and agency decision maker. Where there are expert reports either the reports themselves should be circulated to panel or, where these are voluminous, accurate written summaries of their conclusions, agreed with the legal representatives of the parties, should be supplied. The minutes of the panel meeting should be full, clear and accurate, and should ensure that they clearly record what documentation was considered by the panel and the questions asked and answers given by the social worker(s) attending the panel, with an opportunity for the social worker(s) to approve the record of these questions and answers. The Court also considered that there should be a formal minute of the decision by the decision maker following the panel meeting. If it becomes clear to a court hearing an application for a placement order that the decision making process has been flawed because of material misinformation, the case should be adjourned so that the proper process can be followed. There is an important role for the agency legal adviser here.

It is to be hoped that inaccurate representation of expert opinions to an adoption panel is rare, but this judgment highlights the importance of ensuring that agency decisions regarding adoption, which are subject to the exceptionally detailed regime set out in the Adoption Agencies Regulations 2005 – or, as in this case, the Adoption Agencies (Wales) Regulations 2005, are properly complied with. As well as the specific reports and information set out in the regulations and schedule, the agency must refer to the panel ‘any other information it considers relevant’ and the panel may itself request any additional information it considers necessary. Where expert reports have been commissioned on the child’s development and needs, it is clear that the information they contain should be available to the panel.

However this causes concern about dovetailing the panel process with the court timetable. The panel, like the court, has to await the completion of the assessments and since Re P-B makes clear that the local authority cannot issue a placement order application prior to the completion of the panel’s consideration and the decision maker’s decision, there is a risk that any delay in provision of reports and will de-rail both the panel process and the court timetable causing the adjournment of the final hearing. The Family Justice Council has encouraged courts and local authorities to work together to minimise this risk, especially by scheduling the adoption panel meeting and the prior receipt of expert reports into the court timetable. However, given the narrow window often available between the completion of reports and the date of the panel meeting, the task of gathering and summarising the reports and getting them agreed by the other parties could be a testing one.

Another potential cause of delay could be the scrutiny within the court proceedings of the minutes of the panel meeting and the agency decision maker’s decision. It has become more common in recent years for production of these minutes to be requested, but it would be unhelpful if the panel minutes in every case were to be subject to minute scrutiny, with parents seeking to have cases referred back to panel and the placement order application adjourned or dismissed on the basis of incomplete of inaccurate information provided to the panel. There is also a distinction to be made between incomplete - as opposed to inaccurate - information being given to the panel.

The Court acknowledged the inevitability that sometimes additional information will only come to light after the panel meeting and agency decision, perhaps during the course of the final hearing or perhaps when experts are cross examined; it is not suggested that in such circumstances the case should be referred back to the panel.

Interestingly, the statutory guidance issued by the National Assembly for Wales (paragraph 102) states that ‘Cases should be referred to the panel [for a ‘best interests’ recommendation) [1]  when the local authority has ruled out the option of rehabilitation, even if the plan is contested by the parents and they have commissioned further reports and assessments.’ (my emphasis) (There is no equivalent statement in the English statutory guidance.) This sentence of the guidance was not criticised by the Court of Appeal, yet it would appear to allow for a referral to panel while some further assessments are still outstanding. In this case, the reports appear to have been jointly commissioned, as, indeed, will most often be the case, but this paragraph of the guidance does appear to allow for the possibility of the local authority, convinced of the appropriateness of its adoption plan and having formed the view that further assessments commissioned by the parents will not persuade it otherwise, taking the case to the adoption panel without awaiting the outcome of those assessments.

It is interesting to reflect on what would be the position in ‘free-standing’ placement order applications. In a situation where a child is already in care, and the local authority, some time after the making of the care order considers that the child should be placed for adoption, any question of further assessments being undertaken at the request of the parents is only likely to be considered once the placement order proceedings have been started. In these circumstances it would be a matter for the court to make its decision in the light of any expert evidence admitted, but there would be no expectation that the matter should be referred back to the panel for it to reconsider the case in the light of those views. It would also, I would argue, be open to the local authority itself to decide that it, too, was persuaded by the expert view that adoption was inappropriate and to withdraw the placement order application. Good practice would suggest that the adoption panel should at the very least be kept informed but the regulations, while they provide that an adoption agency can only make a decision that a child should be placed for adoption after it has considered the recommendation of the adoption panel, impose no such obligation in respect of a decision against adoption.

The Court of Appeal first acknowledged the ‘statutory puzzle ‘of achieving a placement order in Re P-B [June 2006] – agencies and courts are required to read statute, regulation, and statutory guidance together in the process of making a decision about whether a child should be placed for adoption – and in the majority of cases, where care and placement proceedings are heard together – these must be integrated with the court protocol [now the PLO]. Curiously, it remains the law that the local authority can file a section 31A care plan for adoption before the panel meeting (and often is required by the court to do so - Re P-B) and indeed cannot refer to adoption panel until it has decided on adoption as the permanence plan for the child (English statutory guidance), but cannot apply for the placement order until after the panel recommendation and the agency decision that the child should be placed for adoption.

Re P-B, Re T and Re P all provide assistance in negotiating the maze and this judgment adds a further signpost in ensuring the adoption panel and agency decision processes are given their place in time and significance. However, some commentators are of the opinion that this judgment raises the significance of the adoption panel too high, bearing in mind that it has power only to make recommendations and cannot determine the agency decision.

It is clear that nearly three years on from implementation of ACA 2002, there remain difficult areas of interpretation of the law and procedure in permanence planning for children, as well as the practical challenges posed by the need to comply with requirements of two statutory processes when care and placement order proceedings are combined.

[1] The Welsh guidance retains the use of the term ‘best interests’ recommendation/decision which was used in the 1983 Adoption Agencies Regulations, even though the 2005 Regulations refer to recommendations or decisions that the child ‘should be placed for adoption’.