| ADOPTION — Adoption order — Arrangements for adoption — Placement order — Procedure — Whether deficiencies in procedure rendered placement order invalid — Adoption and Children Act 2002, s 22
MJ and Another v X Local Authority [2008] EWCA Civ 835; [2008] WLR (D) 244
CA :Thorpe, Arden and Wall LJJ: 17 July 2008
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.
The Court of Appeal so held in allowing an appeal brought by the parents of a child, M, and settting aside a placement order made by Mr Recorder Jones, sitting in the Swansea County Court on 28 February 2008. The Recorder should have remitted the case to the adoption panel for urgent consideration.
WALL LJ 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 s 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 in essence 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. Whilst his Lordship had considerable sympathy for the Recorder in the dilemna in which he found himself, he was clearly wrong not to remit the adoption panel's recommendation for adoption to the adoption 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 adoption agency as a matter of urgency to re-constitute 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, the Recorder was not right to consider that the hearing before him had rectified the deficiencies in the process. Of course, the Recorder was right to conclude that he had duties and responsibilities under the Children Act 1989 and that it was open to him to make care orders on the basis of the care plans placed before him. That however missed the point that what the Recorder did was to make an order under s 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. The Recorder should have adjourned, and 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.
ARDEN LJ delivered a concurring judgment and THORPE LJ agreed.
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