Public Law
April 2022

Summary:

The President of the Family Division dismissed the applications made by the local authority which sought for the court to make a declaration that the placement orders in respect of children who had subsequently been adopted were still valid, despite the fact that the Adoption Agencies Regulations 2005 had not been fully complied with.

Background:

In May 2021, during the course of proceedings before the Court of Appeal in Re N (Children) [2021] EWCA Civ 785, it became apparent that there had been a systemic failure by the local authority, acting as an adoption agency, to abide by the Adoption Agencies Regulations 2005. Following an internal review, the local authority identified 12 children who were the subject of placement for adoption but whose placement was on hold pending clarification of the legal position of the placement orders due to the breaches of those regulations. The local authority identified a further 200 to 300 children, who had either already been adopted or were at an earlier stage of the adoption process, where the medical requirements of the regulations had also not been followed.

Mrs Justice Roberts granted the declarations sought by this local authority with respect to the originally identified 10 children (the two other children’s adoptive placements had fallen away). The local authority intended to use the same procedure under FPR 18 to seek a declaration in relation to the wider cohort of children. Upon publication of the judgement of Roberts J, it became apparent that a number of local authorities across the jurisdiction had also breached the adoption regulations in the same or similar ways. The matter was then transferred to Sir Andrew McFarlane for further consideration.

Decision:

McFarlane P determined that a declaration of the validity of the existing placement and adoption orders was neither appropriate nor required and dismissed the applications made by the local authority. It was also confirmed that there was no basis for other local authorities or adoption agencies to issue similar applications with respect to breaches of the medical requirements of the regulations.

McFarlane P outlined the law, including the medical requirements of the adoption regulations, as set out in the judgement of Roberts J.

The reasons for dismissing the local authority’s applications were then set out. It was confirmed that all court orders are valid unless they are set aside and so there was no reason for a declaration that the existing placement/adoption orders were valid.

McFarlane P then addressed whether the placement/adoption orders were vulnerable to challenge. The constitutional theory of the ‘second actor’ (that any unlawfulness by a first actor may invalidate their own acts but will not directly invalidate the act of a second actor) was accepted as the correct approach. In the present context, the court, as the second actor, was unaware that the local authority, the first actor, had failed to abide by the regulations when deciding to make their application; even if the local authority’s decision to apply was potentially void, the court was entitled to make its own decision and grant a placement order. It was also confirmed that the making of an adoption by the court was essentially an action by a third actor and so was even further removed from challenge.

The President also confirmed that a court would only be bound to declare an existing order was void if the error of the local authority went to the court’s jurisdiction to make the order. McFarlane J explained that a placement order made under the current circumstances is not by consequence void, it is at most voidable and subject to challenge by way of appeal on the specific facts of the case.

McFarlane P then went on to explain that the decision in Re B (Placement Order) [2008] EWCA 835 (where the Court of Appeal set aside a placement order due to a failure to abide by the adoption regulations by not putting all documentation in front of the adoption panel when making the decision to apply for a placement order) does not have universal application. An important distinction was noted in that the lower court in Re B was aware of the breach of the adoption regulations and continued to make a placement order regardless, whereas the court were unaware of the breaches when they made the placement and adoption orders pertaining to these applications; the Recorder in Re B had essentially become the first actor by being aware of the breaches but failing to allow for them the be rectified before making any orders.

McFarlane P also reiterated that once an adoption order is made, it will only subsequently be set aside or revoked in wholly or highly exceptional circumstances. It was considered to be unlikely in this case that a child or prospective adopter would not have an illness so serious so as to invalidate the placement that the court would not already know about it when making its decision.

The President concluded by confirming that local authorities should remedy any remaining breaches before a final hearing and that final orders should not be made until the required medical information has been received by the court. The decision of whether to adjourn a final hearing with directions or to proceed with a final hearing but withhold the making of an order until receipt of the medical information, is one for each individual judge; the court will need to weigh up the welfare of the child, the need to avoid delay and the need for a fair trial process.

Summary:

Consideration by Hayden J of an application for a care order in respect of a child who, it was found, had been subjected to abuse falling within the ambit of fabricated and induced illness. Hayden J also confirmed that the delay required for effective therapeutic intervention of the mother or assessment of extended family members was not in the child’s welfare interests.

Background:

The local authority made an application for a care order in respect of a child (‘LM’). The application was opposed by the mother (‘M’) on the basis that the threshold criteria was not met. The local authority, supported by the guardian, submitted that LM had been subjected to abuse falling within the ambit of fabricated and induced illness. Hayden J confirmed that there was no finding sought or indication that M had induced illness in LM and so threshold was focused on fabrication of illness.

M’s evidence was contradictory and inconsistent; she accepted that she may have exaggerated some of LM’s symptoms but expressed this in theoretical rather than contextualised terms. However, M candidly accepted in evidence that she had fabricated and exaggerated illness in herself since her early teens. M had also been diagnosed with emotionally unstable personality disorder (‘EUPD’). Hayden J considered whether the behaviours exhibited by M in relation to fabrication of her own illnesses were similar to that of the allegations in respect of LM, and whether this demonstrated propensity. Hayden J set out the legal framework relating to propensity and how it translates across the criminal, civil and family arenas.

Hayden J also outlined the chronology of: the reports made by M to various medical professionals, the symptoms LM was said to be exhibiting and her presentation to various medical professionals. Hayden J explained that one incident of note, which related to M’s propensity to fabricate illness, was an allegation concerning the fabrication of blood in LM’s nappy.

Hayden J also went on to consider whether therapeutic intervention would be successful for M and whether the delay for any therapy to be effective would be in LM’s welfare interests. The court was also required to consider the delay in assessing two extended family members, the half-sibling of the father and his partner (‘N and K’), who came forward as potential carers very late in the day. LM, who was aged 2 at the time of the hearing, had been in foster care since the local authority had applied for placement orders and was thriving in foster care. LM also did not have an existing relationship with N and K.

Decision:

When considering M’s propensity to fabricate illness, Hayden J did not consider that M’s diagnosis of EUPD was evidentially supportive of the allegations within threshold and that M’s conduct in respect of her own health was not so strikingly similar to the allegations made in respect of LM to be probative. However, Hayden J did consider that the incident with the blood smeared in the nappy was strikingly similar to be admissible and to corroborate the findings made by the court.

When considering the chronology of events and experiences with the medical profession experienced by LM, Hayden J was of the view that the narrative history expressed by M to professionals lacked any coherence. When considering the totality of the evidence, the court found that there was an escalation of behaviours which was consistent with factitious and induced illness.

The court then went on to consider whether there should be therapeutic assessment and intervention attempted for M to address whether LM could be rehabilitated to the care of M. It was confirmed that therapy for EUPD would take a minimum of 12 months with at least a further 12 to 18 months of therapy to address the illness fabrication relating to both M and LM. Hayden J considered that M found comfort in the exaggeration and falsification of symptoms in both herself and LM, that on this basis M was unable to put LM’s needs before her own and that this would cause significant emotional harm to LM if it were to continue. Hayden J also found that M was resistant to engaging in anything other than short-term therapeutic intervention and that any adjournment to assess M’s engagement with therapy and then the undertaking of any therapy would not be in LM’s best interests; the delay would be detrimental to LM’s welfare and put the likelihood of an adoptive placement for LM at risk. Hayden J considered that LM needed an immediate, permanent and secure home.

The court then explained the importance of identifying and assessing family members at an early stage in proceedings; the court faces difficulties in balancing the desirability of a child being brought up in its extended family and the need to avoid delay for the child’s future if the family seek to be assessed at a late stage in proceedings. Hayden J considered that in this case, adjournment for assessment would not be in accordance with LM’s pressing need for stability and a loving home, because: the adoption process would be international and so would be a lengthier process; there is no existing relationship between LM and N and K; LM’s life story work may be confusing and difficult for LM as her father intends to take no further part in her life and her uncle would take on the role of her father; and, as the mother likely sees a family placement as a lifeline to LM, this gives rise to potential instability in the placement.

Hayden J refused the requests for adjournments and made findings to support that the threshold criteria had been met.