West Law Report

Court cannot cure defects in adoption procedure

Posted in Times Law Report by mrkooenglish on September 3, 2008

From The TimesAugust 21, 2008

Court cannot cure defects in adoption procedure
Court of Appeal
Published August 21, 2008
MJ and Another v Neath Port Talbot County Borough Council
Before Lord Justice Thorpe, Lady Justice Arden and Lord Justice Wall
Judgment July 17, 2008

Flaws in an adoption panel’s decision-making process could not be cured by a subsequent hearing in court.

The Court of Appeal so held in a reserved judgment in allowing an appeal brought by MJ and LB, the parents of a child, M, and setting aside a placement order made by Mr Recorder Gareth Jones, in Swansea County Court on February 28, 2008.

Mr Stephen Cobb, QC and Mr Graham Jones, solicitor, for the parents; Miss Ruth Henke, QC and Mr Matthew Rees for the local authority; Mr Michael Keehan, QC and Mr David Prosser, solicitor, for the child.

LORD JUSTICE WALL said that it was conceded by the local authority in a frank and welcome acknowledgment that it had committed a serious error in the process of making its application for a placement order under section 22 of the Adoption and Children Act 2002 in relation to the youngest of three children, M.

It remained of the utmost importance that the process established by Parliament in the 2002 Act and the consequential regulations was followed, particularly since public access to adoption proceedings was, almost exclusively, restricted to those cases which reached the Court of Appeal.

The parents’ case was that the placement order in relation to M should never have been made and that the recorder should have remitted the adoption panel’s recommendation that M be adopted to the panel for reconsideration.

The recorder was of the view that the information provided to the adoption panel had been deficient. He was of the view, however, that the defects had been rectified in and by the hearing in front of him.

He rejected the application to adjourn and remit the adoption panel recommendation to the panel for reconsideration. He then went on to consider the merits of of the application for a placement order in relation to M, which he granted.

While his Lordship had considerable sympathy for the recorder in the dilemma in which he found himself, he had reached the clear conclusion that the recorder was wrong not to remit the adoption panel’s recommendation to that panel for urgent reconsideration. Had he taken that course, the delay would have been minimal and the statutory framework followed.

The recorder was wrong for the simple reason that the framework laid down by Parliament could not be by-passed or short-circuited.

An application for a placement order could not properly be made by an adoption agency unless the agency decision-maker was satisfied that the child in question should be placed for adoption, and Parliament had laid down that the decision-maker could not be so satisfied unless he had previously considered the recommendation of the adoption panel.

It therefore followed that if the decision of the adoption panel was flawed in any material respect then the decision-maker could not properly consider the recommendation and be satisfied that the child in question should be placed for adoption.

What should have occurred was that the recorder should have adjourned the care proceedings relating to M in order for the addoption agency as a matter of urgency to reconstitute the adoption panel and for the panel to reconsider its recommendation in the light of all the information which was available and which should have been before it when it first considered M’s case.

Had it done so, the matter would have been clarified. The recorder’s conclusion that remission would have involved unacceptable delay was untenable.

Equally, his Lordship did not think that the recorder was right to consider that the hearing before him had rectified the deficiencies in the process.

What the recorder did was to make an order under section 22(1) of the 2002 Act in circumstances in which the due process laid down by Parliament had not been followed.

That was not the right course to adopt. Any future court, faced with this same dilemma, should also adjourn to enable the adoption panel to reconsider and for the adoption agency’s decision-maker also to reconsider.

Lady Justice Arden delivered a concurring judgment and Lord Justice Thorpe agreed.

Solicitors: Smith Llewelyn & T. Llewellyn-Jones, Swansea; Ms Kay Waldron, Port Talbot; David Prosser & Co, Bridgend.

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