[Buy ICLR report:  PTSR CS1]
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
THE HONOURABLE MR JUSTICE BENNETT
|| THE QUEEN (ON THE APPLICATION OF A, T AND S)
||THE LONDON BOROUGH OF NEWHAM
Miss Deirdre Fottrell (instructed by Eskinazi and Co) for the Claimant
Mr John Tughan (instructed by LB Newham Legal Services) for the Defendant
Hearing date: 27 October 2008
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Bennett:
- The Claimants bring judicial review proceedings against the Defendant in respect of its decision of 13 June 2008 not to approve the First and Second Claimants as adopters for a half sibling ("K") of the Third Claimant ("S"). S is the adopted child of the First and Second Claimants. K was born on 14 October 2006 and is the subject of care and placement orders in favour of the Defendant.
- On 13 June 2008 Ms Dibsdall, Head of Service for Children, Young People and Families of the Defendant, wrote to the Claimants as follows:-
"I am writing to you to formally confirm my decision as the Agency Decision Maker in relation to your application to be approved as adopters by the London Borough of Newham. As you will be aware the Independent Reviewing Mechanism (IRM) process can only result in the IRM panel making recommendations and the final decision continues to remain with the responsible agency, in this case Newham.
"I would point out also that under the Adoption and Children Act 2002, within which we operation, adopters are approved as suitable to adopt and not approved as adopters for a specific child. Therefore in coming to any decision the suitability to be an adopter per se has to be taken into account even if, as your case, adopters wish to be considered only for a particular child.
"I have read again all the papers and minutes from Newham Adoption Panel relating to your application along with the minutes and recommendations from the IRM Panel and have carefully considered all the issues and information. After due consideration, I have decided to ratify the recommendation of Newham's Adoption Panel that you are not approved as adopters.
"My reasons for this decision are as follows:
1. Conflicting information was provided to the two assessors, the Adoption Panel and the IRM Panel around the following issues:
Physical punishment and your use and views about this.
S inappropriately walking alone and crossing roads.
Your financial circumstances.
"2. The failure of yourselves as applicants to recognise that child protection issues apply to all children and that the adoption assessment and process needs to be as thorough and intensive for adopters as for foster carers. As after an Adoption Order is granted there is little or no contact with a local authority there needs to be confidence within the local authority that any child adopted is safe and protected.
"3. My concern that in response to a question at the IRM Panel hearing about working with Newham the response was that you "hoped there would be minimal contact with Newham" It is not possible to safely proceed with an adoption process with such an approach if we either placed a child with you or another authority did so in which case we would be responsible for oversight of the care provided to the child.
"I do appreciate that you will be disappointed by this outcome. You may of course apply to another local authority or an independent adoption agency to be approved as adopters and Newham will co-operate fully in providing information to another agency in those circumstances"
- By a judicial review claim dated 31 July 2008 the Claimants sought to have that decision quashed on the grounds of irrationality, procedural unfairness, bias, breach of Article 6 and/or 8 or the European Convention on Human Rights. On 19 September H.H. Judge Jarman Q.C. granted permission on one ground only namely irrationality. He observed:-
"whilst ground 1 is in my judgment arguable the remainder are not, in my view. I have not thought it appropriate to grant the interim relief sought."
- The Claimant's seek to renew their application for permission on the grounds refused by H.H. Judge Jarman Q.C. relating to procedural unfairness and breach of Article 8.
- History. The First and Second Claimants are husband and wife respectively. They were foster carers approved by the Defendant. S, who is now 8 years old, was placed with the First and Second Claimants in early 2001. In September of 2001 a care order was made in respect of S to the Defendant. In early 2002 the assessment by the Defendant of the First and Second Claimants as prospective adopters was started.
- The First and Second Claimants then understood that the Defendant did not wish to progress them as adopters. Accordingly they issued adoption proceedings in respect of S. The Defendant opposed the application. Two reports by an independent social worker were made which recommended adoption. On 23 April 2003 an adoption order was made in respect of S in favour of the First and Second Claimants. In 2004 the First and Second Claimants ceased to be foster carers for the Defendant and thereafter worked as foster carers for a private agency "Parents for Children".
- Thereafter the Claimants kept in touch with S's birth family. They facilitated contact between S and his (birth) grandmother and aunt.
- In 2006 the First and Second Claimants became aware that S's birth mother was going to give birth to a child who would be S's half sibling. On 14 October 2006 K was born. On 10 October 2006 she was made the subject of an emergency protection order. On 26 October she was made the subject of an interim care order. On 27 October K was moved to a foster placement where she has remained ever since. On 28 June 2007 a care and placement order was made, K's adoption having been approved by the Defendant's adoption panel on 5 June 2007. The Defendant is concerned that her adoption is being held up by these judicial review proceedings. K and S have 2 adult siblings GB and CE. Another sibling, A, aged 10 lives with a maternal aunt.
- The Claimants indicated to the Defendant that they wished to be assessed as prospective adopters of K and the assessment began in April 2007. In June 2007 an independent social worker, Sharon Barnes, completed her report and recommended that Claimants were suitable to adopt a child.
- In October 2007 the Defendant's adoption panel decided it wanted further information and requested an addendum report. This was conducted by an in-house social worker of the Defendant, Patricia Lipska. Her report did not recommend the Claimants as suitable to adopt.
- - On 8 January 2008 the Defendant's adoption panel decided that the Claimants were not suitable as adopters. On 14 January 2008 Ms. Dibsdall wrote to them explaining the reasons for the recommendation. They were a "Cluster of concerns" - corporal punishment, safety of children, financial security, motivation to adopt, lack of understanding between fostering and adoption, and impact on S of another child given that S was a demanding child, and the Claimants' responses and ability to handle his behaviour positively. The Claimants were told that within 40 working days they would either submit any written reports to Defendant or apply for review by independent review panel. They applied for an independent review.
- On 23 April the independent review panel met. They were given all the papers. The panel's composition is, as set out at page 296, plainly consisted of persons experienced in the field of adoption. On 7 May the Panel was unanimous in its decision to recommend approval of the Claimants as second time adopters. Its reasons for its decision were:-
"1. They are a strong and valuable couple whose relationship appears sound and they are well supported by people who know them well, including the initial Social Worker who is supportive of their application.
2. They have demonstrated an ability to learn from the many experiences they have had in adopting and fostering.
3. The Panel felt convinced by Mr and Mrs T' reassurances relating to the use of corporal punishment.
4. They have established success with an adopted child and attachment issues and have respected and managed cultural differences very well.
5. The(y) have skills in managing issues of inclusivity and their commitment to bringing up children in a different religion to their own was highly commendable.
6. It was recognised that they need to develop additional parenting strategies but it was felt they would use the support systems available to them and whilst being strong and caring, would be sensitive and supportive of children placed in their care and as Sulliman's needs and behaviour change in adolescence. They are a resourceful couple who panel believed could support the financial and emotional needs of children."
- Ms. Dibsdall has made a statement of 3 October 2008 in which she sets out what she sees as the relevant matters. As the decision maker of the Defendant her usual practice is to receive the panel papers prior to the day of its meeting. Within a week of its decision Ms Dibsdall receives the minutes and the decision sheets. It is rare that she disagrees with the Panel's recommendations. She does not meet the applicants. She has had, in the instant case, no meeting with the Claimants.
- At page 242 she explained in her statement why she agreed with the panel.
"10. With regard to my decision-making in respect of the current case before the Court, I would like to make the following points. In considering the issues and the decisions of the Panel I essentially agreed with them. There are three particular issues that raised concerns for me and primarily led to my supporting their recommendations. Firstly there is the issue of corporal punishment. It seemed clear from the evidence presented to the Panel that S had been threatened by a belt and Mr T' own admission was that he had administered corporal punishment. Mr. T did not appear to accept that corporal punishment should not be used. Any such indications would normally mean that an adoption application would be refused.
"11. Secondly, the issue of child safety was of concern. The evidence provided by Ms Lipska, the assessing social worker, was that S had walked home alone from his class. This raised immediate concerns that this had happened on more than one occasion and put with the other occasions where there had been concerns about child safety I was immediately concerned.
"12. Thirdly I was concerned about the financial viability of this family and the conflicting information that had been received and the level of difficulty experienced by the workers in trying to carry out the financial assessment. The financial viability of adopters is of concern to me because of inheriting adopters who were approved some years ago and who were not subject to such rigorous examination of their finances and whose financial situations have proved to be most unstable. This has all sorts of implications for the child and for the responsibilities of the local authority. In this particular family's case I considered that their financial situation is precarious unless there is other information that they have chose not to divulge. These three factors alone convinced me that the Panel's recommendation was appropriate and I therefore made the decision."
- So far as the Independent Review panel's recommendations were concerned, she says in her statement:-
"13. The situation of the Independent Review Mechanism is of course a fairly new one and to date, only two cases from the London Borough of Newham have been considered by the IRM. In this particular instance, on receiving the minutes and recommendations of the IRM I discussed the matter with the Panel Advisor who I understood had also discussed the matter with the Chair of the Panel. We considered the issues raised by the IRM. I noted that the IRM was equally concerned about the issue of corporal punishment and had returned to ask questions of both Mr and Mrs T and the professionals around this issue several times. I was not satisfied that there were consistent and sufficiently robust answers to assure me that corporal punishment would not be used by this family in future. I am particularly concerned for S's position should the family be subjected to additional pressures of another child being placed with them. It is likely that S, who already can pose challenges and a level of difficulty to his parents, would be the subject of discipline when there is additional stress. Secondly, the IRM was equally concerned about the financial situation but did not appear to deal with this or add anything that convinced me that the original concerns were not equally applicable to date.
"14. In careful consideration of the matter I could see nothing provided by the IRM review that would convince me that the original concerns raised by the London Borough of Newham's Adoption Panel and supported by me had been dispelled or that there was other sufficient evidence that that decision should be overturned. In any such situations it is always a balance of probabilities and I arrived at my conclusions as a result of weighting up those probabilities and applying my considerable professional expertise and experience in this area."
- The case of all the Claimants now falls under 3 heads - irrationality (for which permission has been granted), procedural unfairness and breach of Article 8 (for both of which permission was refused and are now renewed).
- Miss Fottrell, counsel for all the Claimants, helpfully distilled orally the submissions in her long skeleton argument. The basis of her submissions was that the process of the Defendant in connection with the applications of the Claimants to adopt K was to truncate, or telescope into one, the process of the suitability and the matching process. Thus, the process in front of the adoption panel was to be not only an assessment whether the Claimants were suitable to adopt but also an assessment whether or not they should adopt K. This, in turn, led to the submission that, as a matter of law, where an adoption panel are considering together both suitability and matching section 1 of the Adoption and Children Act, 2002 ("the 2002 Act") and in particular the welfare checklist under s.l(4) must be taken into account under both heads.
- Section 1 of the 2002 Act provides that whenever a court or adoption agency is coming to a decision relating to the adoption of a child its paramount consideration must be the child's welfare throughout his life. Under s.l(4) the court or adoption agency must have regard to the enumerated matters, which I will not set out. They are very familiar and can conveniently be referred to as the "welfare checklist". They very much follow a similar provision in s.l(2) of the Children Act 1989 ("the 1989 Act") save that s.l(4)(f) of the 2002 Act is, of course, of specific relevance to adoption. It provides:-
"(f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including -
(i) the likelihood of any such relationship continuing and the value to the child of its doing so,
(ii) the ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs,
(iii) the wishes and feelings of any of the child's relatives, or of any such person, regarding the child."
- There are two relevant sets of regulations. The duties of an adoption agency, when considering a person's suitability to adopt a child, are set out under Part 4 of the Adoption Agencies Regulations 2005 S.l 2005/389 ("AAR") and in Regulations 3 and 4 of the Suitability of Adopters Regulations 2005 S.l.2005/1712 ("SAR").
- The role of an adoption panel is to make one or more of the following recommendations:-
i) whether the child should be placed for adoption. (see Part 3 of AAR).
ii) Whether a proposed adopter is suitable to adopt a child. (see Part 4 of AAR).
iii) Whether the child should be placed for adoption with a particular proposed adopter. (see Part 5 of AAR).
- I shall now refer to Part 4 of AAR and regulations 3 and 4 of SAR.
- Regulation 22(1) of AAR provides that when it receives a written application from a prospective adopter for assessment of his suitability to adopt a child the agency must set up a case record and consider his suitability to adopt a child.
- Regulation 23 provides that the adoption agency must carry out certain police checks and may not consider a person suitable to adopt a child if he or any member of his household over 18 have been convicted or cautioned as set out in regulations 23(2) and (3).
- Regulation 24 provides that the adoption agency must make arrangements for the prospective adopter to receive such preparations for adoption as it considers appropriate, see in particular regulation 24(2). Regulation 25 provides that the adoption agency must obtain information about the prospective adopter to prepare a written report covering the matters in regulation 25(5). Regulation 25(8) provides that the adoption agency must notify the prospective adopter that the matter is to be referred to the adoption panel and give him a copy of the written report and write reports therein within 10 days. At the end of 10 days the adoption agency must send to the adoption panel the report and the prospective adopter's observations, the reports referred to in regulation 25(3) and (4) and any other relevant information obtained by the adoption authority.
- Regulation 26 (1), (2), and (3) specify the function of the adoption panel and (4), (8) and (9) are also set out here for convenience:-
"(1) Subject to paragraph (2) [paragraph (2) and (2A)], the adoption panel must consider the case of the prospective adopter referred to it by the adoption agency and make a recommendation to the agency as to whether the prospective adopter is suitable to adopt a child.
(2) In considering what recommendation to make the adoption panel -
(a) must consider and take into account all the formation and reports passed to it in accordance with regulation 25;
(b) may request the adoption agency to obtain any other relevant information which the panel considers necessary; and
(c) may obtain legal advice as it considers necessary in relation to the case.
[(2A) in relation to the case of a prospective adopter in respect of whom a report has been prepared in accordance with regulation 25(7), the adoption panel must either -
(a) request the adoption agency to prepare a further prospective adopter's report, covering all the matters set out in regulation 25(5); or
(b) recommend that the prospective adopter is not suitable to adopt a child.]
(3) Where the adoption panel makes a recommendation to the adoption agency that the prospective adopter is suitable to adopt a child, the panel may consider and give advice to the agency about the number of children the prospective adopter may be suitable to adopt, their age range, likely needs and background.
(4) Before making any recommendation, the adoption panel must invite the prospective adopters to attend a meeting of the panel.
(8) The adoption agency must make a decision on the case but-
(a) if the case has been referred to the adoption panel under paragraph (6), the agency must make the decision only after taking into account the recommendations of the adoption panel made under both paragraph (7) and regulation 26; or
(b) if the prospective adopter has applied to the Secretary of State for determination, the agency must make the decision only after taking into account the recommendation of the independent review panel and the recommendation of the adoption panel made under regulation 26.
(9) As soon as possible after making its decision under paragraph (8), the adoption agency must notify the prospective adopter in writing of its decision stating its reasons for that decision if they do not consider the prospective adopter suitable to adopt a child, and of the adoption panel's recommendation under paragraph (7), if this is different from the agency's decision."
- Regulation 27 provides that the adoption agency must then make a decision as to the suitability of the prospective adopter to adopt a child.
- As to Regulations 3 and 4 of SAR I shall only set out regulation 4.
"Determining the suitability to adopt a child
4. (1) Subject to regulation 5 of these Regulations, in determining the suitability of any person to adopt a child in accordance with regulation 27 (adoption agency decision and notification), the matters to be taken into account by an adoption agency are -
(a) the prospective adopter's report prepared in accordance with regulation 25(5);
(b) the written report obtained in accordance with regulation 25(3)(a) (medical report);
(c) the written report of each of the interviews in accordance with regulation 25(3)(b) (personal references);
(d) the recommendation of the adoption panel made in accordance with regulation 26(1);
(e) any other relevant information obtained by the adoption agency as a consequence of regulation 26(2)(b);
(2) An adoption agency shall, in determining the suitability of a couple to adopt a child, have proper regard to the need for stability and permanence in their relationship"
- Part 3 of AAR, namely regulations 11 to 17 apply where the adoption agency is considering adoption for a child. Regulation 12 provides a requirement to set up a case record. Regulation 13 provides a requirement for, in particular ascertaining the wishes and feelings of the child regarding 3 specified matters. Regulation 14 provides a similar requirement in relation to the parent or guardian of the child. Regulations 15 and 16 require the adoption agency to obtain specified info about the child and the child's family, respectively. Regulation 18 provides:
"Function of the adoption panel in relation to a child referred by the adoption agency
18. (1) The adoption panel must consider the case of every child referred to it by the adoption agency and make a recommendation to the agency as to whether the child should be placed for adoption.
(2) In considering what recommendation to make the adoption panel must have regard to the duties imposed on the adoption agency under section 1(2), (4), (5) and (6) of the Act (considerations applying to the exercise of powers in relation to the adoption of a child) and -
(a) must consider and take into account the reports and any other information passed to it in accordance with regulation 17;
(b) may request the agency to obtain any other relevant information which the panel considers necessary; and
(c) must obtain legal advice in relation to the case.
(3) Where the adoption panel makes a recommendation to the adoption agency that the child should be placed for
adoption, it must consider and may at the same time give advice to the agency about -
(a) the arrangements which the agency proposes to make for allowing any person contact with the child; and
(b) where the agency is a local authority, whether an application should be made by the authority for a placement order in respect of the child."
- Part 5 of AAR is concerned with duties of adoption agency in respect of proposed placement of a child with a particular prospective adopter. Regulation 31(1) speaks of the situation where an adoption agency is considering placing a child for adoption "with a particular prospective adopter". The regulations then lay down further duties of the adoption agency. Regulation 32 speaks of the function of the adoption panel in relation to the proposed placement.
"Function of the adoption panel in relation to proposed placement
32. (1) The adoption panel must consider the proposed placement referred to it by the adoption agency and make a recommendation to the agency as to whether the child should be placed for adoption with that particular prospective adopter.
(2) In considering what recommendation to make the adoption panel shall have regard to the duties imposed on the adoption agency under section 1(2), (4) and (5) of the Act (considerations applying to the exercise of powers in relation to the adoption of a child) and -
(a) must consider and take into account all information and the reports passed to it in accordance with regulation 31;
(b) may request the agency to obtain any other relevant information which the panel considers necessary; and
(c) may obtain legal advice as it considers necessary in relation to the case.
(3) the adoption panel must consider -
(a) in a case where the adoption agency is a local authority, the authority's proposals for the provision of adoption support services for the adoptive family;
(b) the arrangements the adoption agency proposes to make for allowing any person contact with the child; and
(c) whether the parental responsibility of any parent or guardian or the prospective adopter should be restricted and if so the extent of any such restriction."
- What is so noticeable about the regulations I have set out is that under Parts 3 and 5 of AAR the adoption panel and agency must take into account the duties imposed on the adoption agency under the 2002 Act because Parts 3 and 5 are dealing with the adoption panel's functions in relation to an identified child. Section 1 applies whenever a court or adoption agency is coming to a decision relating to an adoption of a child. The paramount consideration of the court or adoption agency must be the welfare of the child throughout its life and by sub-section (4) the court or adoption agency must have regard to several matters which, for convenience, can be called the 'welfare checklist'. Thus when the adoption panel is considering whether the child should be placed for adoption and/or whether the child should be placed for adoption with a particular proposed adopter, by virtue of Regulation 18(2) and 32(2) respectively of AAR it must have regard s.l (2), (4), (5) and (6) of the 2002 Act re Part 3 and section 1(2), (4) and (5) of the 2002 Act in respect of Part 5.
- By contrast, Part 4 of AAR is not concerned with an identified child. It is concerned with the suitability of a prospective adopter to adopt children in general. The absence in Part 4 on any duty imposed on the panel and/or adoption agency to take into account any part of section 1 of the 2002 Act is striking and entirely logical when the function of the panel/agency under Part 4 is properly understood. When the matching process is undertaken under Part 5 of AAR between a child and his/her prospective adopter section 1 is brought fully into play.
- Were the procedures or process under Parts 4 and 5 of AAR merged, truncated or telescoped? Miss Fottrell drew my attention to the report of the independent social worker, Ms. Barnes, commissioned by the Defendant, the addendum assessment of Ms. Lipska, and the Child Permanence Report, all of which were before the adoption panel in January 2008. Ms. Barnes and Ms. Lipska were undoubtedly considering the matching of the Claimants - see in particular pages 79, 84, 85 and 86 of the bundle before me. The best example is at pages 84-86 where Ms. Lipska specifically considers "matching considerations" and contact between S and K, and K's birth family's support of K's adoption by the Claimants. At page 90a Ms. Lipska referred to the matter of the strength of the sibling bond. She concluded that the Claimants were not suitable to adopt K.
- The Child Permanence Report - see page 91 of the bundle - states that the purpose of the report was to enable the adoption panel and decision maker to decide whether the child should be placed for adoption and that the child should be placed with prospective adopters. Its further purpose was a source of information for the prospective adopters to enable them to decide whether to proceed with the matching process.
- In my judgment the issue the adoption panel was to consider is as set out at the start of the minutes of the panel on 8 January 2008 namely:-
The panel is asked to recommend that T and A should be approved as adopters."
- Having first discussed the matter between themselves (see pages 249 to 253) the Claimants joined the meeting and were asked questions (see pages 253 to 256). They then left the meeting. Further discussion took place. At page 257 it is recorded that:
"The recommendation was unanimous.
Panel recommends that T and A are not approved as adopters
• • Cluster of concerns around:-
• • Corporal punishment and discipline
• • Safety of children
• • Financial security/stability
• • Motivation to adopt
• • Lack of understanding of difference between adoption and fostering
• • Impact on S of another child and continued fostering, given he is a demanding active 7 year old and the T' responses and ability to positive handle his behaviour."
- The panel's decision sheet - page 246 - is to like effect. It is apparent therefore to me that the panel was directing itself as to the suitability of the Claimants to adopt a child under Part 4 of AAR and not (additionally) to the matching process under Part 5. Further, on a careful reading of the minutes of the panel there is nothing to suggest that the panel at its meeting on 8 January 2008 was conducting both a process under Part 4 and a process under Part 5 of AAR.
- But if I am wrong and the panel was conducting a truncated process as submitted by Ms. Fottrell, I am not persuaded by her submissions as to the impact of s.l of the 2002 Act. I do not accept that if a panel conducts its meeting in such a way as to combine the assessments under Parts 4 and 5 it must apply s.l of the 2002 Act to both assessments. In my judgment to do so would be to act contrary to the provisions of Parts 4 and 5, in particular Regulation 26 and 32 (2). Part 4, as I have said, is concerned with the suitability of an adopter to adopt children in general. It is not concerned with prospective adopters in relation to a specific child.
- Ms. Fottrell drew my attention to Regulation 32 (5) which provides that an adoption panel can only make a recommendation that the child should be placed for adoption with the particular prospective adopter ("that recommendation") if the adoption agency had already made a decision that K should be placed for adoption and that recommendation is to be made at the same meeting of the panel at which a recommendation has been made that the prospective adopter is suitable to adopt a child or the adoption agency has made a decision in accordance with regulation 27 that the prospective adoption agency is suitable to adopt a child.
- I agree that suitability and matching can be considered by the panel at the same meeting, but it does not follow that s.l of the 2002 Act is to be applied by the panel when considering suitability under Part 4, albeit it must apply S.l under Part 5. The two processes are separate and distinct processes with different overarching considerations to be taken into account.
- Ms. Fottrell made a number of submissions which, she said, came under the rubric of either irrationality and/or procedural unfairness. Let me set them out.
i) There was before the panel in January 2008 a report (see pages 261 to 266) made in 2002 in connection with the proposed adoption by the Claimants of S. It was referred to by Ms. Lipska in her addendum report. The 2002 report was not a positive assessment. What the panel in January 2008 did not have in front of it was the report of an independent social worker, Ms. Adcock, of 28 March 2003 (see pages 158 to 182) which is highly favourable to the Claimants. In her report Ms. Adcock commented adversely on the report (see pages 172 to 175) and stated:-
"Overall I think that the effect of these inaccuracies is to create a more unfavourable picture of the applicants than is, in my opinion, justified."
ii) At the opening of the panel's discussion (see page 249) one member of the panel informed it that the Claimants:-
"had applied to adopt one of the children they foster from their own authority, they were refused.
Ms. Fottrell submitted this was a clear reference to the adoption of S. At page 252 the same member :-
"....informed the panel that this adoption had gone ahead against the local authority's wishes."
Ms. Fottrell submitted that the panel was not informed that a) Ms. Adcock had made a positive assessment, b) the Defendant had in the end agreed to the adoption of S going ahead and c) an adoption order was made by the court in respect of S by the Claimants.
iii) As to the "cluster of concerns", "motivation to adopt" and "lack of understanding of difference between adoption and fostering" are issues that do not appear to have been discussed at the panel meeting and the inclusion of the report of 2002 must have induced these concerns in the mind of the panel.
- In relation to these matters, I was referred to two authorities namely R v Criminal Injuries Compensation Board, ex parte A  2 AC 330, in particular a passage in the speech of Lord Slynn of Hadley at page 346G to page 347B, and to Georgiou v L.B. of Enfield and others  EWHC 779 (Admin), a decision of Richards J. as he then was, in particular to paragraphs 93 and 94. With respect, the passages in these authorities are examples of the requirement of the fairness and do not lay down any new principle. They were prayed in aid by Ms. Fottrell to support her submission that the panel acted unfairly in the ways she has submitted.
- It will be noted that the submissions of Ms. Fottrell above are an attack on the rationality of the adoption panel's recommendation in January 2008. But, as Mr. Tughan pointed out, what the Claimants in these proceedings have to (and do seek to) impugn is the decision of 13 June 2008. He submitted that when that decision is carefully analysed Ms. Dibsdall, the decision-maker, does not refer to "the cluster of concerns". Her letter made no reference to "motivation to adopt" or "lack of understanding etc". Furthermore she well knew that although the Defendant had opposed the adoption of S by the Claimants nevertheless it had not pursued their opposition and that a court had ordered S's adoption. She would have known these matters from, inter alia, the report of Ms. Barnes and from Ms. Lipska's addendum report, as well as the other papers in the case. Thus if there was any unfairness/irrationality in the panel's hearing in January in these respects they had no impact on Ms. Dibsdall in June 2008. In my judgment Mr. Tughan is right, and accordingly I reject these submissions of Ms. Fottrell.
- Ms. Fottrell then turned to the three reasons given in the letter of 13 June 2008 namely that conflicting information was provided to the two assessors, the adoption panel, and the IRM panel about physical punishment "and your use and views about this", S inappropriate walking alone and crossing roads and "your financial circumstances".
- I shall take finances first, as did Counsel. Ms. Fottrell broadly submitted that the panel's assessment of the finances of the Claimants was not accurate. Further, the Claimants provided further information to the IRM panel which cleared up any inconsistencies. Ms. Dibsdall makes no mention in her letter of the IRM panel's findings.
- At the panel in January 2008 one member said that she had seen the financial statement of the Claimants "and it was not good". The same member said that there was no allowance available for babies and hoped that adopters would be financially stable. Another member said it was unlikely that the Claimants would receive financial support.
- However, it was submitted by Ms. Fottrell that the panel was unaware of Regulation 8(1) of the Adoption Support Regulations 2005 S.l 2005/691 ("ASR"). Regulation 8(1) provides that financial support to an adoptive parent is payable for the purpose of supporting the placement of the adoptive child. Under 8(2) such support is only payable:
"(c) where it is necessary for the local authority to make any special arrangements to facilitate the placement or the adoption by reason of-
ii) the desirability of the child being placed with the same adoptive parent as his brother or sister (whether of full or half-blood)..."
- Thus the panel was misinformed as to the possibility of financial assistance being provided to the Claimants. It is clear from the above regulations that financial assistance could be made available in exactly the circumstances of this case. No consideration had been given by the panel and/or Ms. Dibsdall to this point. Thus, a relevant consideration was not taken into account.
- Furthermore, it was submitted, by the time the matter reached the IRM panel the Claimants in their statement (pages 38 and 39) had submitted further information. The substance was that as a family they could cope, particularly as they owned a second property with a net equity of circa £60,000. When the matter came before the IRM panel one of the matters to be considered by that panel was the Claimant's finances. It was noted that the Claimants were legally entitled to be assessed for their support needs, including financial, to facilitate the adoption of a sibling and should not have been refused on financial grounds. In its reasons the IRM panel found that the financial issues had been resolved (see page 307).
- Mr. Tughan took me through the passages in the papers concerned with finances - see paragraph 39(i)(c) at page 10 of his skeleton argument. Ms. Barnes in her report recorded that he family will be placed "under considerable financial strain" as a result of the First Claimant having no permanent employment and the family losing their foster allowance. Ms. Lipska made a detailed breakdown of the family's finances -see pages 76 and 77. She noted (page 79) that the First Claimant said he would have to return to full time work to be able to survive financially. He undertook private work which he did not declare (i.e. to HMRC). To the IRM panel the Claimants discussed one or both of them taking time off work.
- In a statement of circa November 2007 of Tina Mitchell, which was before the panel, but which was only disclosed to the Claimants on the day of the hearing before me, the First Claimant stated to her that he would find it very hard financially but they would just have to manage. As to their second home, he told Ms. Mitchell that his mother and his wife's brother were living there and thus the property could not be sold "yet".
- Yet to the IRM panel the Claimants simply referred to the net equity without qualification, thus the IRM panel could not take was Ms. Mitchell said into account.
- As to the regulations, Mr. Tughan submitted that any financial support would be means tested, see regulation 15(3). Ms. Fottrell countered that by referring to regulation 15(5) which gives a local authority a discretion to disregard means testing when considering making special arrangements as referred to in regulation 8(2), to which I have referred.
- Overall, he submitted that the evidence was conflicting and Ms. Dibsdall was entitled to make up her mind as she did.
- As to corporal punishment, Ms. Fottrell rested her submissions on the findings of the IRM panel - see pages 300 to 301, to Ms. Lipska stating to the panel that she did not think S had actually been beaten - page 306 - and Ms. Barnes telling the panel that she had seen S's parents dealing with his misbehaviour appropriately. In its reasons the IRM panel were "convinced by Mr. and Mrs. T' reassurances relating to the use of corporal punishment". Thus, it was submitted, there was not sufficient evidence for Ms. Dibsdall to conclude that physical punishment remained an issue or Ms. Dibsdall did not give adequate weight to the IRM panel's reasons.
- Mr. Tughan (see paragraph 39(i)(a) of his skeleton argument) again took me through the documents. The Claimants told Ms. Barnes that they did not use any physical punishment. In Ms. Lipska's addendum report S told her that the First Claimant "sometimes gets his belt". He confirmed that the First Claimant had used his belt but it did not hurt. The First Claimant told Ms. Lipska that he did threaten the use of the belt but did not hit S. When he took his belt S knew he was not being serious. He said any form of corporal punishment is unacceptable towards a looked after child but S was legally his child and he had a right to discipline him as he chose. To the adoption panel he said he did smack S. To the IRM panel the Claimants said that they had never used the belt, but in their culture such threats were commonplace as a means of stopping a child doing something. The threat carried no threat of actual physical punishment, S would have been clear in his own mind that there was no possibility of him being hit with a belt.
- As to crossing the road, Ms. Fottrell submitted that this was dealt with at the IRM panel - see Q.5(b) at page 301. Mr. Tughan at paragraph 39(i)(b) again took me to various passages in the documents. Ms. Lipska was informed of an incident in June 2007 when a child in the care of the Claimants was found wandering on the footpath. It was not raised when Ms. Barnes. When Ms. Lipska spoke to the Claimants about the occasion when a friend had walked S to school and left him at a zebra crossing they felt aggrieved; they were his parents and should be allowed to make decisions. The Claimants told Ms. Lipska that they do not let S walk to school alone. However, during one of Ms. Lipska's visits, S came home alone.
- Ms Fottrell made further submissions about paragraphs numbered 2 and 3 of Ms. Dibsdall's letter of 13 June. As to number 2 she submitted that there was no evidence to support such a finding. As to number 3 she said that Ms. Dibsdall had taken this out of context. At page 301 a panel member (IRM) asked the Claimants whether they would work with the Defendant in the future "given the experience they have had". The answer at 6(a), I have to say, was not an answer to the question, but a complaint about how the Defendant had behaved in connection with the adoption of S. Thus at 6(b) the question seems to have been repeated. The First Claimant acknowledged that they had "no choice" but to work with the Defendant. The Second Claimant said they wanted to look forward "and hoped there would be minimal contact with Newham". The First Claimant said that the adoption process is not as intensive as fostering "and they felt sure they could cope with this".
- Mr Tughen responded, re number 2 of Ms. Dibsdall's letter, that this was a reference to a passage in the addendum report of Ms. Lipska at page 89:
"Mr. T [ ] said that he understands that any form of corporal punishment is unacceptable for looked after children and that he has never smacked a foster child in his care. He said that since S [ ] is legally his child, he has a right to discipline him as he chooses.
We discussed how the fact that he treats the foster children one way and S [ ] another in terms of discipline can be a sense of confusion or resentment for S [ ] who might not understand why he is being smacked and the others not."
However, he had to accept that Ms. Dibsdall's letter of 13 June made no reference to the basis underpinning her conclusion.
- As to number 3, the Claimants, he submitted, have a dim view of the Defendant - see their answer to the IRM panel and their allegation of bias against the Defendant at paragraph 24 of the statement of the First Claimant of 18 July 2008, in that the Defendant has a fixed and negative view of the Claimants, they sought to prevent their adoption of the S and are seeking to prevent their adoption of K.
- Finally, Ms. Fottrell submitted that the statement of Tina Mitchell relating to her visit on 14 November 2007, and the statement of Sarah Reid of 3 December 2007, to which I have referred, were in front of the adoption panel but not made known to the Claimants and should have been. It is submitted that due to their negativity the Claimants had no chance of dealing with their contents, and that this is another example of procedural unfairness.
- My attention was drawn to two authorities, R v Avon County Council, ex parte M  2 FCR 259 and R(Raines) v Oranse Grove Foster Care Asencv  EWHC 1887 (Admin  1 FLR 760. The Avon case concerned the rejection by Avon of a review panel's recommendation as to the accommodation of the applicant. The applicant began judicial review proceedings. They were compromised, part of which being that the matter would be reconsidered by the review panel. Again the review panel recommended that the applicant be accommodated at the same place as it specified in its first review. Avon rejected that recommendation. Henry J, as he then was, quashed Avon's decision.
- At page 273 Henry J said:-
"But making of the final decision did not lie with the review panel. It lay with the social services committee. I would be reluctant to hold (and do not) that in no circumstances whatsoever could the social services committee have overruled the review panel's recommendation in the exercise of their legal right and duty to consider it. Caution normally requires the court not to say "never" in any obiter dictum pronouncement. But I have no hesitation in finding that they could not overrule that decision without a substantial reason and without having given that recommendation the weight it required. It was a decision taken by a body entrusted with the basic fact finding exercise under the complaints procedure. It was arrived at after a convincing examination of the evidence, particularly the expert evidence.
The evidence before them had, as to the practicalities, been largely one way. The panel had directed themselves properly in law, and had arrived at a decision in line with the strength of the evidence before them. They had given clear reasons and they had raised the crucial factual question with the parties before arriving at their conclusion.
The strength, coherence, and apparent persuasiveness of that decision had to be addressed head-on if it were to be set aside and not followed. These difficulties were not faced either by the respondents' officers in their paper to the social services committee, or by the social services committee themselves. Not to face them was either unintentional perversity on their part, or showed a wrong appreciation of the legal standing of that decision. It seems to me that you do not properly reconsider a decision when, on the evidence, it does not seem that that decision was given the weight it deserved. That is, in my judgment, what the social services committee failed to do here. To neglect to do that is not a question which merely, as is suggested in one of the papers, impugns the credibility of the review panel, but instead ignores the weight to which it is prima facie entitled because of its place in the statutory procedure, and further, pays no attention to the scope of its hearing and clear reasons that it had given.
It seems to me that anybody required, at law, to give their reasons for reconsidering and changing such a decision must have good reasons for doing so, and must show that they gave that decision sufficient weight and , in my judgment, it is that that the social services committer have here failed to do. Their decision must be quashed. As is often the case in Wednesbury quashings, it can be put in a number of ways: either unintentional perversity, or failure to take the review panel's recommendation properly into account, or an implicit error of law in not giving it sufficient weight. [Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation  1 KB 223]"
- Orange Grove, in which Avon was cited, was again a case involving the decision of a review panel making a recommendation which was rejected by the agency's decisionmaker. I was referred to a passage in my judgment at paragraph 54, where I said:-
"Mr Bedingfield did not, and indeed could not, suggest that the panel recommendation was itself unreasonable, or that the panel had not considered all the relevant facts or that the panel had taken into account irrelevant matters. In my judgment the recommendation was not only entirely coherent and reasonable, but also persuasive. The recommendation, and indeed the minutes, demanded careful reading and considerable thought before the recommendation was rejected by Miss Willock, as the decision-maker. The recommendation, coming as it did after a very careful review by the panel, who itself had heard the claimant and Mr Peart, had to be taken head on by Miss Willock if she was not going to follow it."
- Ms. Fottrell therefore submitted that Ms. Dibsdall did not give adequate reasons for rejecting the reasoning and recommendations of the IRM panel. Its reasoning and recommendations can only be rejected if there are clear and cogent reasons and due weight must be given to them, which, in the instant case, was not done.
- In my judgment the critical document to consider, when looking at irrationality and/or procedural unfairness, is the decision letter of 13 June 2008. But it must also be looked at in the context of the history of the case as a whole.
- Ms. Dibsdall was faced with a) the adoption panel's recommendation in January 2008 which she had endorsed and then b) the IRM panel's reasoning and recommendation which was diametrically opposed to the recommendation of the adoption panel. Ms. Fottrell did not, and indeed could not, suggest that no decision maker could ever reject the recommendation of the IRM panel where it was in conflict with a recommendation of the adoption panel. Plainly a decision maker can reject the recommendation of a review panel but must take into account the considerations set out in the powerful dicta of Henry J. in Avon.
- In my judgment the real issue in this case is whether Ms. Dibsdall did take "head on" the reasoning and recommendation of the IRM panel. I did not hear Mr. Tughan submit that the procedural fairness or the rationality of the IRM panel's reasoning and recommendation was in question. I have no reason to doubt that, with the benefit of its legal adviser, the IRM panel applied the law and conducted its hearing fairly. It is to be noted from the minutes of its hearing that it was concerned to explore the facts, and having heard the Claimants, make such findings of fact as it thought appropriate. Mr Tughan did not suggest that its findings or reasoning were in any way to be criticised.
- Mr. Tughan's fundamental submission was that Ms. Dibsdall was entitled to come to her decision because there was "conflicting information" provided to the two assessors, the adoption panel and the IRM panel about corporal punishment, S walking alone, and the Claimants' financial circumstances - see page 219 paragraph number 1. Much of his submissions was directed to that point as I have set out. But what Ms. Dibsdall, in my judgment has failed to appreciate, is that the IRM panel resolved the "conflicting information" in favour of the Claimants. The reasons for its decision are undoubtedly strong and powerful. In particular the panel was "convinced by Mr. and Mrs. T' reassurances relating to the use of corporal punishment" and "they are a resourceful couple who panel believed could support the financial and emotional needs of children". Furthermore it found that Claimants had an established success in adopting S.
- If therefore an independent review panel rationally concludes that e.g. it is reassured relating to corporal punishment, it seems to me that a decision-maker is in dangerous territory if she later concludes that the answers given by the Claimants in relation thereto are "not sufficiently robust", (see paragraph 13 of her statement of 3 October 2008). For, it was those very answers which convinced all the members of the IRM panel.
- I find paragraph 14 of Ms. Dibsdall's statement surprising. I do not follow how she can say, in the light of the IRM panel's reasoning, that "she could see nothing provided by the IRM review" that would convince her that the original concerns raised by the adoption panel "had been dispelled". To say that she could see "nothing" provided by the IRM panel strikes me, I have to say, as bordering on the bizarre, given the IRM panel's very clear reasoning. Ms. Dibsdall seems to be going close to saying that the IRM panel reasoning was itself irrational or perverse.
- In my judgment, difficult as thought the task of Ms. Dibsdall was - and I have considerable sympathy for her - she simply has not met the weight of the IRM panel's reasoning head on and dealt with it by giving clear and cogent reasons for rejecting it. It was not a question of "conflicting information", as I have said. It was a question of why the findings and reasoning of the IRM panel was plainly wrong, leading to a rejection of its very strong recommendations. As to number two in her letter, Ms. Dibsdall provided no basis or explanation as to why she reached such a conclusion. As to number three I accept Ms. Fottrell's submissions. Ms. Dibsdall seems to have given little, if any weight to the Claimants understandable feelings that, to put it bluntly, the Defendant was against them and has been since 2001.
- I am also concerned that whilst the IRM panel was aware that the Claimants were entitled to be assessed for their support needs (see page 297 and regulations 8(2), and 15(3) and (5) of ASR) the adoption panel, but more importantly, Ms. Dibsdall do not seem to have factored in that matter at all in the decision making process.
- Accordingly, although I grant permission to bring judicial review proceedings on the grounds of procedural unfairness, I quash the decision of 13 June 2008 on the ground of Wednesbury unreasonableness as set out by Henry J. in Avon.
- As to the ground under Article 8 of the European Convention on Human Rights, this concerns S. The basis of this ground is that S is the biological sibling of K, that S's relationship comes within the meaning of "family life" under Article 8(1), and that Ms. Dibsdall should have considered the impact of Article 8 upon the family life of either S and/or K. As she did not there has been a breach of Article 8.
- In my judgment this ground is misconceived. What the adoption panel and Ms. Dibsdall had to consider was the Claimants' suitability under Part 4 of AAR in which the child's (K) welfare under S.l of the 2002 Act was not a relevant consideration, for the reasons I have given. The panel/Ms. Dibsdall had to consider the Claimants' suitability to adopt children in general. Accordingly, article 8 is not engaged. Permission on this ground is refused.
- I wish to make a general point. These judicial review proceedings and my judgment are not concerned with whether or not the Claimants should adopt K. They are solely to do with whether the decision of 13 June 2008 was Wednesbury unreasonable and/or whether there was procedural unfairness. As I have quashed the decision of June 2008, the matter will now have to return to the Defendant for it to make a fresh decision whether the Claimants are suitable to adopt children in general, and if the decision is favourable, for a further assessment/decision in relation to the Claimants adopting K.
Copyright Policy |
Donate to BAILII