Apologies Surrey, you just happen to be one of the few Councils in the country that have a name that lends itself to song titles.
Surrey County Council v S 2014
I’ll zip in and out of this one, because it is an appeal that raises only minor points (though they might BECOME more significant). This from Ryder LJ
- As the judge records, the care proceedings were pursued at the final hearing on the basis of proposed care plans which included placement for adoption. There were no placement order proceedings before the court relating to the two children with whom this court is concerned and to date none have been issued. That is because the local authority’s ‘agency decision maker’ has not made the decision that is necessary to allow such proceedings to be issued. As I described in LB v LB Merton and LB (A Child)  EWCA Civ 476, there is a statutory duty upon a local authority to make an application for a placement order in the circumstances set out in section 22 of the 2002 Act. By section 22(1) (c) and (d) those conditions were met in this case i.e. the local authority considered that the threshold conditions in section 31 of the 1989 Act were met and the local authority was satisfied that the children ought to be placed for adoption.
- There was no reason why the local authority could not have obtained the agency decision maker’s decision in this case. They could then have commenced placement order proceedings to run concurrently with the care proceedings. That would have been fairer to the mother who has no automatic legal aid to oppose placement order proceedings. A concurrent hearing of care and placement order applications also helps to prevent the error of linear decision making because the court has all of the evidence about the welfare options before it. Indeed, I would go further: in order for the agency decision maker to make a lawful decision that the children be placed for adoption, the Adoption Agencies Regulations 2005 (as amended) must be complied with. For that purpose, the agency decision maker has a detailed ‘permanence report’ which describes the realistic placement options for the child including extended family and friends. The report describes the local authority’s assessment of those options. When a decision is then made by the agency decision maker it is based on a holistic non-linear evaluation of those options. That decision leads to evidence being filed in placement order proceedings. It is good practice for that evidence to include the permanence report used by the agency decision maker, the record or minute of the decision made and a report known as an ‘annex A’ report which is a statutory construct which summarises the options and gives information to the court on the suitability of the adoptive applicants. All of this permits the court to properly evaluate the adoption placement proposal by comparison with the other welfare options.
- In care proceedings where the local authority are proposing a care plan with a view to an adoptive placement, the court is likely to be missing important evidence and analysis if the placement order proceedings are considered separately. Furthermore, without the agency decision maker’s decision, any care plan based on an adoptive proposal cannot be carried into effect. It is likely to be inchoate or at least conditional on a decision not yet made and the outcome of which cannot be assumed. I make no criticism of the key social worker or the children’s guardian in this case. Their materials were of high quality but necessarily, without the agency decision maker’s decision, they could not present a full analysis of the factors in section1(4) of the 2002 Act and could do no more than pay lip service to the proposed adoption plan of the local authority and the interference with family life that it would have entailed.
- Local authorities should be astute to timetable the decision of the agency decision maker so that all matters can be put before the court together without delay. There is no reason why concurrent applications would have caused delay and indeed they must not. It would be wrong to delay a necessary decision about a child’s future. In this case, the local authority should have abided by the directions that the court gave which would have facilitated concurrent hearings. If as the local authority submit the mother was not co-operating in permitting medicals to be undertaken that are necessary for the agency decision maker’s decision, they should have obtained a court order requiring the same. If the placement order evidence had been available to the judge, the local authority’s case about adoption and the comparative exercise expected of the judge would have been much clearer. Although not relied upon by Judge Cushing, the absence of the agency decision maker’s decision in this case and the evidence that would have supported the same is an additional reason why it would have been disproportionate to approve a care plan with a view to adoption.
- I am very aware that in making the additional observations that I have about placement order evidence, the statutory framework and regulations concerning adoptive placements are likely to change this summer. When section 22C(9A) of the 1989 Act comes into force there will be associated with it an amended regulatory regime which will require a different decision to be made by the director of children’s services of the local authority to permit the placement of a child with a local authority foster parent who is also a prospective adopter. Nothing I have said in this judgment touches upon how that decision is to be made or how and when evidence of that decision is to be presented to a court.
This raises two points
1. That the Court of Appeal have remembered the concept of inchoate care plans, finally ! And that the solution that was being mooted in various cases that in order to “hit 26 weeks” the Court hould make a Care Order and come back at a later point for a standalone SGO application (if the relative who came forward or the work to be done with parents panned out) or a standalone Placement Order application (if it doesn’t) is not procedurally fair (as I have been saying for over a year now)
2. That the CoA seem to want Local Authorities to lodge the Child Permanence Report alongside their other papers in the placement order application. Well, have fun reading them, Judges. If there’s a duller document outside leases, I’ve yet to read one (and bear in mind that I once worked in contract law and did liability shield clauses). It also isn’t going to do much for the much vaunted aim of slimming down the bundles.
Why might the first BECOME more important? Well, now that the Court of Appeal have frowned on finding of fact hearings for both physical injuries (fracture disputed by parents) and sexual allegations (sexual assault on 14 year old, disputed by parents), it looks like for those of us who are not Jo Delahunty QC, we are going to instead resolve all of the factual disputes at final hearing. Which means, care plans that are framed as several possible alternatives, which means applications to adjourn to give time to reflect on the judgment, time for risk assessments, time for treatment, time for separation to be effected and tested. So when that happens, and Judges start suggesting that all of that work should be done under a Care Order (finish the proceedings, come back if it all goes wrong), those passages might turn out to be extremely helpful. You’re welcome.