MJ (Mother) and LB (Father) v Local Authority & Ors

This is the second occasion in the recent past in which this court has had to address the question of misconduct by a local authority acting as an adoption agency in proceedings relating to placement orders under the Adoption and Children Act 2002 (the 2002 Act). In the first case, Re F (a child) (placement order)[2008] EWCA Civ 439, [2008] 2 FCR 93 (Re F)this court was unanimous in its condemnation of the adoption agency’s conduct, but the majority was of the view that the local authority was acting within the law, albeit in defiance of good practice. A father’s appeal against a circuit judge’s refusal to entertain his application for permission to apply for the revocation of a placement order was, accordingly, dismissed and this court sought to set out its views by means of best practice guidance disseminated through the good offices of the President of the Family Division and the British Association for Adoption and Fostering (BAAF).

In the instant case (in which Mr. Stephen Cobb, QC once again appears for an appellant father - albeit that in this case he and the children’s mother make common cause, and Mr. Cobb appears for both) it is conceded by the local authority, in a frank and welcome acknowledgement contained in the skeleton argument filed on its behalf by Miss Ruth Henke QC and Mr. Matthew Rees, that the local authority / adoption agency in question committed “a serious error” in the process of making its application for a placement order under section 22 of the 2002 Act in relation to the youngest of the three children with whom we are concerned, and whom I propose to identify only by the initial M.

As I see it, our task in this appeal is to assess whether or not the Recorder dealt properly with the agency’s error – the nature and extent of which I shall, of course, identify and discuss in detail later in this judgment. Suffice it for present purposes to say that, speaking for myself, I have been persuaded by Mr. Cobb that the error made by the local authority in its capacity as an adoption agency was not only serious, but also material; and that the Recorder was, in all the circumstances of the case, wrong to proceed to judgment as he did.

It follows from this conclusion that, in conventional, adversarial civil proceedings, the appeal would almost certainly be allowed, and the Recorder’s order set aside. Those, indeed, are the orders which Mr. Cobb invites us to make.

This is, however, a child case, and the Recorder was primarily hearing care proceedings under Part IV of the Children Act 1989 (the 1989 Act) in relation to all three children. Furthermore, events have occurred since 28 February 2008, the date on which the Recorder delivered the judgment which is the subject matter of this appeal. In particular, prospective adopters have been identified for M, who has now been matched with them. His immediate introduction to, and placement with, those prospective adopters is strongly supported by his guardian in both the care and placement order proceedings.

Speaking for myself, I would very much like to have been able to dismiss these appeals. I have, however, come to the conclusion that whilst this court can (and should) dismiss the appeals against the care orders, the placement order made by the Recorder under section 21 of the 2002 Act cannot stand, and must be set aside. The consequence, in my judgment, is that the local authority cannot place M for adoption with his prospective adopters. If it wishes to do so, it must take the course which the Recorder should have taken, namely; (1) to remit M’s case to the Agency Adoption Panel (AAP) as a matter of urgency; (2) if the AAP recommends adoption for M it must issue a fresh application for a placement order; and (3) there must be a further hearing of that application before the Recorder.

Given the view which I have formed of the case, I would greatly have liked to short-circuit the process, as the local authority and M’s guardian both urge us to do. However, I have come to the conclusion that such an outcome would be unprincipled. The burden of this judgment is that Parliament has laid down a careful regime for the making of placement orders in Chapter 3 of the 2002 Act. That regime was not followed in the instant case. Unlike Re F where what the adoption agency / local authority did was lawful, albeit in defiance of good practice, what the adoption agency / local authority has done in the instant case breaches the 2002 Act and the Regulations, and in my judgment it is simply not open to this court to take any other course than to allow the appeal against the placement order in relation to M and to set it aside.

I very much regret the further delay which will result. My understanding of the law, however, is that, pursuant to section 18(1) of the 2002 Act, an adoption agency may only place a child for adoption with parental consent (section 19) or under a placement order. M’s parents plainly do not consent to him being placed for adoption, and for the reasons which I will explain in this judgment, the placement order made by the Recorder must be set aside. I accept, therefore, that M will remain in limbo until the matter is resolved. I very much regret that fact. It is, however, in my judgment, the inevitable consequence of the statutory provisions I shall set out.

As in Re F, and having heard full argument, I am very clear that what occurred in this case should not have occurred, and that were it to happen again in a future case, the court at first instance should take a different course from that taken by the Recorder in the instant case. It is thus of the utmost importance that our judgments in this appeal should be widely circulated amongst practitioners both lay and professional working in the field of adoption.

As the contributions to the argument made by both CAFASS Cymru and BAAF (set out at paragraphs 77 to 79 below) demonstrate, this appeal has served to highlight, once again, the supreme importance and sensitivity both of adoption itself as a concept, and of placement order proceedings under the 2002 Act. It has also served to highlight the critical importance of good practice in the legal processes leading to the institution and hearing of such proceedings, and the necessity of ensuring that the integrity of the process is respected. To put the matter in a slightly different way: Parliament, in the 2002 Act and the consequential Regulations has laid down a careful process which has to be followed before placement and adoption orders can be made. That process must be respected and scrupulously implemented. In the instant case, it was not.

Widespread dissemination of this court’s analysis of what occurred in this case should be sufficient to prevent repetition. As in Re F, therefore, I unashamedly propose that our judgments should be provided to the President of the Family Division and to BAAF with an invitation to both to ensure proper circulation of the good practice which we set out in paragraphs 81 to 86 below, and which, as I understand it, is supported by all the parties to this appeal. The President has seen this judgment in draft, and has been good enough to say that he endorses the good practice there set out.

Having now heard full argument, I am in no doubt at all that the parents’ applications cross the permission threshold. I would unhesitatingly grant permission to appeal. In addition, I would allow the appeal to the limited extent of setting aside the placement order.

One point made by Mr Cobb in oral argument struck me with particular force, and has undoubtedly influenced my decision in this appeal. What, he asked rhetorically, would be the public perception if this court were to condone what was, on the local authority’s own case, an admitted and serious breach of the adoption process?

There is, in my judgment, a public perception, which is also identified in the Email from BAAF’s legal advisor set out in paragraph 79 below, that local authorities / adoption agencies are target driven, and are seeking adoption orders simply to meet their quotas, without any reference either to the well-being of the children concerned or to the ECHR rights of their parents. For my part, I think that perception is inaccurate, but that it exists I have no doubt. I would therefore like to make it as clear as I can that in my judgment, the local authority did indeed make a serious error in the instant case; and one, moreover, which must not be repeated. Having said that, however, I unhesitatingly acquit the local authority in this case of acting in any way in bad faith – indeed, that was not alleged. Indeed, there is a particular irony in the fact that in Re F this court dismissed the father’s appeal, despite the fact that it was unanimous in the serious level of criticism which it levelled at an unrepentant local authority which had behaved badly, but within the law; whereas in the instant case the local authority properly recognises its errors, and regrets them.

In my judgment, it remains of the utmost importance that the process established by Parliament in the 2002 Act and the consequential regulations is followed particularly since public access to adoption proceedings is – almost exclusively - restricted to those cases which reach this court. I therefore welcome the opportunity for this court to make public where it stands on these important questions.

I need, therefore, to add that although, in this case, we are concerned with the Adoption Agencies (Wales) Regulations 2005 (the Regulations) and the Adoption Agencies (Wales) Regulations 2005 Guidance (the Guidance) we were helpfully supplied by Mr. Cobb and Mr. Jones with a comparison between the Regulations and their English counterpart, the Adoption Agencies Regulations 2005 (the English Regulations). Whilst there are, in places, material differences between the two, the principle underlying this judgment, namely that the provisions of the 2002 Act and the relevant Regulations must be adhered to by adoption agencies before making an application for a placement order under section 22 of the 2002 Act, applies equally in England as it does in Wales.

Finally, by way of introduction, I need to record that we were invited by Mr. Cobb to impose reporting restrictions in this case. We did so. Nothing, accordingly, must be published which in any way identifies any of the children in the case, whether by location or otherwise. The only public bodies which will be named in this judgment are the local authority and the court, and apart from the Recorder, counsel and their instructing solicitors, the only individuals who will be named are the experts involved in the case, all of whom have national reputations, and none or whom is specifically associated with the particular location in which the events I am about to describe occurred.

The parents of three children, C, A and M join forces to appeal; (1) against care orders under Part IV of the 1989 Act made in relation all three; and (2) in particular against a placement order under section 21 of the 2002 Act in relation to M made by Mr Recorder Jones sitting in the Swansea County Court on 28 February 2008.

At the date of the hearing before the Recorder, C, who is a girl, was 9; A, who is a boy, was 7 and M, who is also a boy, was 4. The children’s parents are not married to each other, although by an order made in the course of the proceedings, the Recorder granted the father parental responsibility for all three. At the date of the hearing before the Recorder in January and February 2008, the children’s parents had separated and were living apart. Each was separately seeking a return of the children, who had been accommodated under section 20 of the 1989 Act by the local authority and had, for the greater part of the period since 22 May 2007, when the local authority instituted the care proceedings, had been living with foster parents, Mr and Mrs T.

Although, in form, both parents sought permission to appeal against the care orders made in relation to each of the children, the principal focus of Mr. Cobb’s argument for the parents was the placement order made in relation to M. The parents’ case, in essence, was that this order ought never to have been made, and that had the Recorder done what he should have done, namely remit the local AAP’s recommendation that M be adopted to the panel for reconsideration; (1) he would not have made final care orders in relation to any of the children; and (2) he would not have adjudicated on what was, Mr. Cobb submitted, a defective application by the local authority for a placement order in relation to M. Mr Cobb thus invites us to allow the appeal, set aside the care orders in relation to all three children and the placement order in relation to M; to substitute interim care orders in relation to all three children and to remit the AAP’s recommendation that M be adopted to the Panel for urgent reconsideration. This course is resisted both by the local authority / adoption agency and the children’s guardian.

For present purposes, I am prepared to adopt the concise summary of the legislative position set out by Miss Henke and Mr. Rees in their skeleton argument, which does not seem to me to be controversial. The position is thus as follows.

Under the 2002 Act, the applicant for a placement order is the local authority which, by reason of section 2(1) is the Adoption Agency within the meaning of the Act. By reason of section 3 of the Act, the Adoption Agency has distinct functions separate from the local authority’s duties and responsibilities under the 1989 Act. However, Parliament has not vested in the Adoption Agency the power to make placement orders. The responsibility for making placement orders very firmly rests with the court.

Section 22 (1) and (2) of the 2002 Act provides that: -

The role of the court is set out in section 21(1) to (3) of the 2002 Act, which is in the following terms:-

In addition when considering any “decision relating to the adoption of a child” (which includes whether or not to make a placement order) the court (and the Adoption Agency) must apply section 1 of the 2002 Act. By reason of section 1(2) the paramount consideration of the court and the adoption agency must be the child’s welfare “throughout his life”. Further by reason of section 1(6):-

The Court, counsel submitted, and this is not controversial, therefore has a very clear and obvious discretion about whether or not to make a placement order, and is in no way bound by the decision of the Adoption Agency.

Of particular relevance to this appeal are regulations 3 and regulations 11 - 20. Regulation 3 establishes the adoption panel. Regulations 11- 20 set out the duties of the adoption agency when considering adoption for a child. In addition, the Regulations have been clarified and amplified by statutory guidance issued by the National Assembly for Wales under section 7 of the Local Authority Social Services Act 1970. The Guidance is to be read in conjunction with the 2002 Act and the Regulations.

In relation to the process of referring a case to the AAP, paragraph 102 of the Guidance states that:

As was pointed out in argument, the need for an application to the court for disclosure to the AAP is no longer required following an amendment to the Family Proceedings Rules. Where, however, an adoption agency refers a proposal for adoption to the panel, it is under a duty to furnish the panel with the reports required by regulations 15, 16 and 17. Regulation 17(1) prescribes a number of matters which must be included in the report under that regulation. Regulation 17(1) (j) refers to “any other information which the agency considers relevant”. There is no definition or clarification within the regulations or the guidance of what may or may not be relevant. Under the former scheme of statute and regulations, namely the Adoption Act 1976 and the Adoption Agencies Regulations 1983, the reference to relevant information included the views of other professionals (including any children’s guardian) who had been involved in considering the welfare of the child: see Re R (Adoption: disclosure)[1999] 2 FLR 1123.

The function of the adoption panel in relation to every case referred to it is set out in regulation 18:

By reason of regulation 18(2): -

The recommendation of the panel is then placed before the adoption agency decision maker who will decide whether or not a child should be placed for adoption. Regulation 19 (1) clearly states that

If, having taken into account the above matters, the agency decision maker considers that a child should be placed for adoption, then the agency may issue an application to the court for a placement order under section 22 of the 2002 Act.

Re P-B is an important case, and one on which Mr. Cobb placed considerable reliance. It is plainly binding on this court irrespective of the fact that two of the three members of the court which decided it are in the current constitution. The essence of the decision in Re P-B seems to me to be that a local authority, acting in its capacity as an adoption agency, cannot institute proceedings for a placement order for a child under section 22 of the 2002 Act without first placing the child’s case before the AAP. To put the matter another way, the agency cannot properly be satisfied that the child ought to be placed for adoption within section 22(1)(d) of the 2002 Act unless it has both obtained and properly considered the recommendation of the panel.

In Re P-B, Thorpe LJ said:-

Whilst I am in no doubt that the scheme of the 2002 Act and the Regulations requires the child’s case to be placed before the panel prior to the issue of an application for a placement order, and whilst I am also in no doubt that the agency must fully and properly consider the advice of the panel, I also respectfully agree with Arden LJ in the same case when she says:-

To understand how the AAP came to make its decision on 16 January 2008, it is necessary to set out the facts. I shall do so, however, as briefly as I can. Mr Cobb helpfully provided us with a schedule of key dates, and I propose to select the relevant events mainly from this document. In particular, for reasons which will become apparent, it is unnecessary to record the detail of events prior to the removal of the children from their parents’ care.

At the date of the hearing before the Recorder the mother was 29 and the father 39. Until 22 May 2007 the children were living with their parents, who had, the Recorder found, been in a relationship since about 1997.

On 22 May 2007, the local authority received a referral from the school attended by C and A to the effect that C had alleged she had been physically assaulted that morning by her father, and that A had previously been assaulted by his father on one or more occasions. Medical examinations and a child protection investigation under section 47 of the 1989 Act followed. The children were accommodated under section 20 of the 1989 Act, and following the institution of care proceedings on 23 May 2007, all three children were placed with local authority foster parents, Mr and Mrs T, a placement in which they have remained throughout the proceedings.

The local authority’s initial plan was for the reunification of the children with their parents, but by the time the case came to be heard before the Recorder, the parents had separated; the father was in a relationship and living with another woman, a neighbour whose children were themselves the subject of care proceedings. The local authority’s final care plans – as presented to the Recorder - and indeed at the date when M’s case was placed before the AAP - were that the children should be split. The plan for M was that he should be adopted on his own outside the family; the plans for C and A were initially that they should be placed together in long term foster are. However, following concern expressed by the AAP considering M’s case, the local authority’s final care plans for C and A were that they would conduct a time-limited search for an adoptive placement for C and A together, but if that proved impossible, C and A should be placed together with long term foster parents. There was, for the local authority, no question of any of the children returning to the care or either of their parents.

Reverting to the chronology, the care proceedings were transferred on 24 May 2007 to the county court, and on 12 June 2007, Her Honour Judge Parry gave directions, which included permission for C and A to be examined by a consultant paediatrician (Dr Jane Watkeys) and for the instruction of a clinical psychologist to make an assessment of both parents. On 26 July 2007, the same judge gave permission for the papers to be disclosed to an expert for the purposes of undertaking an assessment of the children. The psychologist concerned was Professor Nicola Gray, and the assessment of the children was carried out by Dr Arnon Bentovim, a retired consultant child and adolescent psychiatrist and his wife, a psychiatric social worker. For ease of reference, I propose to refer to the latter assessment by reference to Dr Bentovim alone.

Dr Watkeys was, of course, asked to advise essentially about the children’s physical condition, and about the examination which she conducted as part of the Looked After Children Protocol. She also examined the children’s medical records. Her conclusion was not altogether unfavourable to the parents. She commented that “considering how all three children are functioning at the present time, I would consider that to be apparently so well at this stage they certainly have had some good care in their earlier life”. She noted that M had problems in relation to his speech in that there was some delay in terms of his expressive language. She did not, however, share Dr. Bentovim’s view that M was developmentally delayed by two years behind his chronological age, and on this point, the Recorder preferred her evidence.

In the context of this appeal, however, Dr Watkeys’ evidence is of lesser significance than the evidence of Professor Gray and Dr. Bentovim. These two experts each wrote very long reports and gave oral evidence to the Recorder. We have a transcript of the latter’s oral evidence. For the purposes of this appeal it is, I think, important to recall the instructions each was given.

Professor Gray was instructed to undertake a psychological assessment of both parents; to advise on whether either or both exhibited any form of personality disorder; to advise on whether or not there was any factor which impacted upon the ability of either or both safely to parent the children; and any other matter she deemed relevant, including her recommendations as to the form of any intervention required as a result of her assessment. For obvious reasons, Professor Gray was not asked to advise in relation to the children’s placement, still less was she asked to advise whether or not M should be adopted.

Dr Bentovim records his instructions in paragraphs 2.1 to 2.8 of his report. I do not propose to set out the detail, which in essence simply breaks down his instructions to assess the children’s health, development and functioning into the component parts necessary for such an assessment to be complete. It is, thus, only under the heading “Alternatives” in paragraph 2.8 of his report that Dr. Bentovim records his instructions “to consider the alternative possibilities for the fulfilment of the children’s needs:” and under two bullet points identifies (1) what sort of placement; and (2) contact arrangements.

Professor Gray reported initially on the father on 22 September 2007, followed by a second report on 9 October 2007. She reported on the mother on 23 September 2007. Dr Bentovim reported on 10 December 2007. Addenda were provided by Dr Bentovim on 2 January 2008 and by Professor Gray on 6 January 2008.

It is, I think, fair to say that the essence of Professor Gray’s written reports was that each of the children’s parents had a number of personal difficulties which made it unlikely that either could safely parent the children. Dr Bentovim likewise concluded that the children themselves had received inconsistent care, and described the family session, when the children and their parents were together as “extremely chaotic”. His essential conclusion mirrored that of Professor Gray, namely that “if the children continued to be subject to the care which their parents provided, there would be a profile of significant harm for the children in terms of continuing failure to ensure safety, adequate emotional development, adequate social relationships and identity, adequate control and management of their behaviour, and adequate stimulation.” In short, the children’s parents were “not able to fulfil the children’s identified needs”.

It is, moreover, I think right to say that the focus of Dr Bentovim’s report was not on the placement of the children, and certainly not on the question of M being separated from his siblings and adopted. Nonetheless, in paragraph 5.8 of his report, under the heading “Alternatives: To consider the alternative possibilities for the fulfilment of the children’s needs: What sort of placement: contact arrangements, Dr. Bentovim concluded:-

On 19 December 2007, Judge Parry made an important order in the proposed placement order proceedings. She recorded; (1) an indication from the local authority to use its best endeavours to complete the CARA report in respect of M by 2 January 2008 and (2) that it “shall place his name before the Adoption Panel; for a best interests decision on 16 January 2008”. The local authority also undertook to issue an application for a placement order in relation to M by 4.00pm on 17 January 2008. The judge ordered the local authority to file its final care plan in relation to C and A by 4.00pm on 21 December 2007, any amended plans in relation to those children by 4.00pm on 11 January 2008, together with its final evidence and care plan in relation to M. Evidence in support of the application for a placement order was to be filed by 17 January 2008, and on issue, the same guardian was appointed to act for M in the placement order proceedings. Amongst other directions, the guardian was to file and serve her reports by 25 January 2008 and permission was given for the father’s solicitor to disclose Professor Gray’s reports to his GP and any suitable therapist identified by the father.

On 20 December 2007, the guardian’s solicitor wrote to Dr. Bentovim with reference to the final paragraphs of his report, set out in paragraph 48 above. He asked whether Dr. Bentovim’s comments were a result of the solicitor’s request to Dr. Bentovim to “consider the concept of adoption and whether such may be appropriate for all or none of the children”. On 2 January 2008, Dr. Bentovim replied:-

Dr Bentovim also expressed a willingness to provide a response as to the suitability of the care plans. Unfortunately, he does not appear to have done so prior to the meeting of the AAP on 16 January 2008. By then, of course, the local authority had concluded that none of the children could return to the care of their parents; that they should be separated; and that M should be adopted.

It was against this background that the AAP met on 16 January 2008, and recommended that M be placed for adoption. On the following day the Agency Decision Maker (the Director of Social Services) endorsed the decision and the application for the placement order in relation to M was made on the same day, 17 January 2008.

It is the decision of the AAP on 16 January 2008 that M was suitable to be placed for adoption which forms the bedrock to Mr. Cobb’s submissions on behalf of the children’s parents. We have been provided with a minute of the decision. It records that the panel had read the social worker’s report in respect of M. The social worker in question then updated the panel by informing them that the parents had separated and that the father was living with another woman; that the final hearing was scheduled for 28 January; the minute also records that:-

The medical adviser to the AAP is then recorded as sharing his report with the panel. As I have already indicated, the issue between Dr. Bentovim and Dr Watkeys went to the question of whether or not M was developmentally delayed, and the medical adviser appears to have expressed the view that “he did not consider M’s development to be delayed by two years as indicated by Dr. Bentovim”.

The minute then records the questions / issues raised by the Panel. A number of points are recorded under a series of bullet points. For present purposes, and for ease of reference, I have numbered those which are relevant:-

The social worker appears also to have indicated under this heading that the relationship between the three children had been assessed “in all scenarios”; that M distanced himself from his siblings; that A was negative to him and he appeared an irritant to C.

Later in the minute, the social worker is asked the question: Why is the plan not adoption for all three children? She is recorded as answering:-

The minute then records the AAP’s discussion and conclusion: -

The AAP concluded by recommending that M be placed for adoption, and that an application should be made for a placement order. In addition, it advised that therapeutic work should be undertaken with the sibling group to prepare all three children for the separation and to help them understand it; that contact issues for the siblings were to be kept under review; and that further consideration be given to the care plans for A and C.

In oral argument, Mr. Cobb identified a number of errors in the decision and the decision making process. As I noted them, they were as follows:-

In my judgment, Mr Cobb’s criticisms of the information provided to the AAP are well founded, and in particular it is clear that the report of Dr Bentovim’s views given to the AAP was seriously inaccurate.

For the agency, Miss Henke conceded that the answers given to the Panel were not in accordance with the reports made by Professor Gray and Dr Bentovim, and were equally not consistent with some of the replies given by Dr Bentovim in oral evidence to the court. She acknowledged that this was a serious error which ought not to have occurred, and she accepted that the actual reports should have been before the Panel. She thus acknowledged that the decision of the AAP had been based on information which was not accurate. However, her submission was that these deficiencies had been corrected by the Recorder’s investigation of M’s best interests in the care proceedings.

The Recorder shared the view that the information provided to the AAP had been deficient. In paragraph 59 of his judgment, he expressed himself as follows: -

The Recorder, however, was of the view that the defects in the AAP’s decision had been rectified in and by the hearing in front of him. Firstly, he identified the positive aspects of the AAP’s process:-

The Recorder then referred to Re X; Barnet LBC v Y and X[2006] 2 F.L.R 998 (Re X), which he distinguished, and to Re S and W (Care Proceedings)[2007] EWCA Civ 232; [2007] 2 FLR 275 (Re S and W), which he applied. However, it seems to me that his principal reason for making a placement order in relation to M was that which I have already identified, namely that any deficiencies in the AAP’s decision had been rectified by the hearing before him. His view was that in the care proceedings, the question of M’s welfare had been fully debated, and that he had had the opportunity in the care proceedings to consider the care plans for all three children in depth. He had come to a proper and reasoned conclusion that it was in M’s best interests to be adopted in a separate placement from his siblings. He pointed out that the care plan was not prepared by the AAP – and that the preparation of such a plan was not its function. The AAP made a recommendation to the agency decision maker under regulation 18: the decision maker took the recommendation into account, but the ultimate decision about whether or not to apply for a placement order was one made by the agency decision maker. The Recorder cited Re P-B as supporting this proposition.

The Recorder also gained support from section 22 of the 2002 Act. He then cited extensively from the Regulations, which he described as a framework designed as a pre-application safeguard. He was unable to say if the AAP would have reached a different decision if it had had Dr Bentovim’s report before it. However, he had had the benefit of hearing oral evidence, and of hearing both Professor Gray and Dr. Bentovim cross-examined.

The Recorder rejected the application to adjourn and remit the AAP recommendation to the panel for reconsideration in paragraph 69 of his judgment, in which he said:-

The Recorder then went on to consider the merits of the application for a placement order in relation to M, which he proceeded to grant.

Whilst I have considerable sympathy for the Recorder in the dilemma in which he found himself, I have come to the clear conclusion that he was wrong not to remit the AAP’s recommendation for adoption to the AAP for urgent reconsideration. Had he taken that course, the delay would have been minimal, and the statutory framework would have been followed.

I have reached the conclusion that the Recorder was wrong for the simple reason that I do not think that the framework laid down by Parliament can be by-passed or short-circuited. In my judgment, the decision of this court in Re P-B accurately states the law. An application for a placement order cannot properly be made by an adoption agency unless the agency decision maker is satisfied that the child in question should be placed for adoption, and Parliament has laid down that the decision maker cannot be so satisfied unless he or she has properly considered the recommendation of the AAP. It must follow, in my judgment, that if the decision of the AAP is flawed in any material respect then the decision maker cannot properly consider the recommendation, and thus cannot be satisfied – in accordance with the process laid down by Parliament – that the child in question should be placed for adoption.

In my judgment, the Recorder was right to distinguish Munby J’s decision in Re X. That case seems to me in essence authority for the well-known proposition that if a local authority care plan is seriously deficient, the court will refuse to endorse it. That was not the issue with which the Recorder was confronted when considering the decision of the AAP in the instant case.

The Recorder was also right, in my judgment, to take the view that this was not a situation in which judicial review of the AAP’s decision was appropriate. Speaking for myself, I strongly maintain the position taken by this court in paragraphs [90] and [91] of its decision in Re S and W (Care Proceedings) that in the overwhelming majority of cases, human rights and other issues of process normally leading to judicial review should be dealt with within the family proceedings themselves. Separate proceedings for judicial review are, in my judgment, to be avoided wherever possible. They were quite unnecessary in the instant case.

What should, in my judgment, have occurred is 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 AAP and for the AAP 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. I am confident that the AAP could have reconvened as a matter of urgency and within a matter of days. Had it done so, the position would have been clarified. In my judgment, the Recorder’s conclusion that remission would have involved unacceptable delay is untenable.

Equally, I do not think that the Recorder was 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 1989 Act, and that it was open to him to make care orders on the basis of the care plans placed before him. This, however, misses the point that what the Recorder did was to make a specific order – a placement order – under section 22(1) of the 2002 Act in circumstances in which the due process laid down by Parliament had not been followed. In my judgment, this 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 AAP to reconsider and for the adoption agency’s decision maker also to reconsider.

In my judgment, the nearest analogy is with Re M-H (Assessment: Father of Half-Brother)[2006] EWCA Civ 1864, [2007] 1 FLR 1715. In that case the judge inappropriately exercised a judicial discretion not to permit a father an independent viability assessment. In paragraph 30 of the case, I said:-

I fully accept, of course, that a judge in the position of the Recorder has duties and responsibilities under Part IV of the 1989 Act, and that these include a proper consideration of the threshold criteria, the care plan for the child and the child's best interests under section 1 of the 1989 Act. But none of this, in my judgment, affects the fact that Parliament, in the 2002 Act and the Regulations has laid down a statutory process which must be gone through before an adoption agency can make an application for a placement order under section 22(1) of the 2002 Act. The provisions of Part IV of the 1989 Act, and the fact that the Recorder has made a care order based on a care plan for M which envisages adoption, are not a basis upon which the provisions of the 2002 Act in relation to M's placement for adoption can be by-passed.

I am reinforced in my analysis by the contributions made by the legal advisors to CAFCASS Cymru and BAAF. The former, whom we invited to make written submissions, commented as follows:-

The reference to paragraph 41 of the skeleton argument filed on behalf of the guardian relates to the proposed guidance on best practice, and is set out at paragraph 81 below.

The contribution from BAAF took the form of an Email from its legal consultant, Alexandra Harris to the father’s solicitors. Ms Harris, quite properly, had not been given the details of the case, and her observations were, accordingly, general in nature. However, what she said was as follows:-

I respectfully agree with both contributions.

There was, I am pleased to say, substantial agreement at the bar as to the nature of the guidance we should give. First and foremost, of course, the provisions of the 2002 Act and the Regulations must be followed, and not by-passed. More specifically, the guardian suggested the following:-

To this guidance, which seems to me eminently sensible, I would only add that in my judgment it is imperative that the decision to ratify the AAP’s decision and to begin the process of applying for a placement order must never be a simple rubber stamp. The circumstances in which the decision is taken should be transparent, and the decision itself minuted. In my judgment, the manner in which the decision was taken in the instant case was unsatisfactory: it was a rubber stamp imposed by the Director of Social Services, who had no real knowledge of the case and who made the decision on the basis of the inaccurate information provided to the Panel. Whilst it may well be that in practice the decision to take proceedings for a placement order will be made by an individual rather than a group, the source and substance of the information given to the decision maker must be clear, and both the decision itself and the reasons for it minuted.

Mr. Cobb’s and Mr. Jones’ proposals were, it seems to me, a refinement of the guidance proposed by the guardian, but are, essentially to the same effect. Their proposals were as follows: -

The essence of the guidance, in my judgment, must be that panel members should be made fully and properly aware of all the available material relevant to their decision. It will plainly be a matter of judgment for the local authority medical advisor to the panel in each case to decide whether or not panel members need to read any expert report, or whether or not a summary of it will suffice. There is, however, a clear duty on the local authority which is conducting the care proceedings to ensure both that all relevant material is made available to the Panel, and that the material placed before it is accurate. As important, it seems to me, is the proposition that the decision to proceed to apply for a placement order is properly made, and minuted.

It will, it seems to me, almost invariably be the case that where the local authority having conduct of the care proceedings is contemplating an application to apply for a placement order in relation to a child; (a) that application is likely to be contested; and (b) the child’s future will not have been decided by the court. As was pointed out in the course of argument, a panel’s decision is a recommendation and a pre-requisite to the application for a placement order. In these circumstances, the panel will thus almost always have to make its recommendation in the light of the fact that the proceedings are contested, and that the expert evidence before the panel may be neither complete nor that which is ultimately placed before the court. It is for this reason, of course, that the final decision about adoption rests with the court. However, none of this provides any basis for the panel being provided with inaccurate information.

I would therefore adopt the guidance provided by the guardian, with the additional observations as to the need for transparency in the process of making the application for a placement order.

In my judgment, the Recorder was fully entitled in this case to find that the threshold criteria under section 31 of the 1989 Act were satisfied for all the reasons which he sets out in the section of his judgment devoted to this topic. It is plain to me that on the evidence the three children had received a chaotic upbringing whilst in the care of their parents, and that when the local authority instituted its protective measures in April 2007, C and A had already suffered significant harm, and that had the local authority not intervened, all three children were likely to suffer significant harm. In this latter respect, it seems to me that Dr Bentovim’s evidence is compelling, and the Recorder was entitled to accept it.

I am also quite satisfied that the Recorder was entitled on all the evidence, notably, of course, that of Professor Gray and Dr Bentovim, to reach the conclusion that there was no realistic prospect of these parents caring for any of their children in the foreseeable future.

It follows, in my judgment, that care orders in relation to all three children were inevitable, and I find myself unable to accept Mr. Cobb’s argument that if the Recorder, as he should have done, had remitted the question of M’s suitability for adoption to the AAP, he would not have made care orders in relation to any of the children, notably, of course, C and A.

It may well be, of course, that whilst M’s case was being reconsidered by the AAP the Recorder would have made only interim orders in relation to all three children. However, this fact does not, in my judgment, vitiate the exercise of his discretion to make final care orders, nor does it require this court to allow the appeals in so far as they relate to the care orders.

The question, therefore for this court, as it seems to me, is whether or not the care plans advanced by the local authority for all three children are such that the Recorder was entitled to uphold them, or whether this court should remit M’s case to the AAP and, in the meantime, make an interim order in relation to M or interim orders in relation to all three children.

It must, I think, be remembered; (1) that at no stage was it the local authority’s case before the Recorder that the three children should be placed together. The local authority sought care orders on the basis that the children would be split, with A and C in one placement, and M in another. A and C have now both been to panel, and it has been recommended that an adoptive placement be sought for them together. No criticism has been advanced to us about the Panel’s recommendation in this regard. However, the local authority / agency realistically recognises that an adoptive placement for the two children is unlikely to materialise, and is approaching their case on the dual planning approach recently approved in this court in the case of Re P (children) (adoption: parental consent)[2008] EWCA Civ 535, [2008] 2 FCR 185 at paragraphs 134 to 140. The likelihood, therefore, is that C and A will in due course be placed in long term foster care.

In my judgment, in all the circumstances of this case, the Recorder was entitled to approve care plans advanced by the local authority which separated the children in the manner proposed. Of course, in an ideal world, siblings should be brought up together, but whereas a beneficial short-term placement which accommodates all three may well (as here) be found, the reality is that long term placements for three such children together (two of whom are seriously damaged) are rare.

Furthermore, it seems to me that the local authority has advanced a case for the children to be split which salvages for them as much as can properly be salvaged from the case, and which protects, in particular, the interests of M.

In summary, therefore, my analysis of the case is as follows: (1) none of the children can return to the care or either of their parents; (2) long term placements outside the family are, therefore, necessary; (3) the threshold criteria under section 31 of the 1989 Act are satisfied, and care orders are inevitable; (4) the splitting of the children as proposed by the local authority has a rational foundation; it is supported by both the guardian and (with some reservations) by Dr. Bentovim, and the Recorder was thus entitled to approve the local authority’s care plans; (5) given M’s age and particular circumstances, adoption for him in a separate placement is an appropriate outcome, particularly, as it appears, prospective adopters have been located for him; and (6) C and A have now both been to panel and approved for adoption. It is, accordingly, appropriate for dual planning to be pursued in their case.

In all these circumstances, against this background, and had it been possible, I would, speaking for myself, have preferred to have left the placement order in being, and not to have set it aside, despite my view that this is what the Recorder should have done before reaching a conclusion. The case has moved on since it was before the Recorder, and to remit the issue of M’s approval for adoption will undoubtedly introduce a further element of delay into the case which the guardian, acting for M, properly asks us to avoid.

Moreover, the reality of the case is that the Recorder made a placement order in February 2008 (albeit that he should not have done so). That placement order has not been - of itself - acted upon. M has not been placed for adoption. What has happened is that the care plan for M (which was, of course, for adoption) has been approved by the Recorder and prospective adopters have been found for M.

The principal consequence of the placement order is, of course, that M’s parents are effectively prevented by it from opposing M’s adoption. In my judgment, that breach of their rights under ECHR Articles 6 and 8 has now to be balanced against M’s rights under the same articles of the Convention. In conducting that balance, I have given weight to the views of the guardian, who invites the court to take a pragmatic decision, and to confirm M’s prospective placement.

In this context, it does seem to me that the Recorder’s meticulous analysis of M’s welfare is also highly relevant. However, I have come to the conclusion that the course urged by the local authority and the guardian is simply not open to us. I would therefore allow this appeal to the limited extent of setting aside the placement order. In my judgment that course is not only the only course which this court can properly take in the light of my analysis of the Statute and the Regulations: it also seems to me appropriate in the light of the principal message of this judgment, which is that the Act and the Regulations are there to be honoured and obeyed in their entirety, and that the Recorder should have remitted M’s case to panel for urgent reconsideration in the light of all the information which should properly have been before it. Nothing, moreover, should derogate from the good practice which I have set out at paragraphs 81 to 86 above. If that practice is not followed in the future, the route to be taken by the court is clear.

I agree.

At [68] of his judgment, Mr Recorder Jones states as follows:-

The last sentence of this paragraph of the judgment of the Recorder speculates about whether my judgment in P-B (a Child) which he quotes, indicated that there was a residual jurisdiction in the court to approve an adoption in a case where there have been “procedural difficulties” (depending on their severity).

The position with which I was dealing was a situation where those involved in an adoption did not discover that there had been a failure by the local authority to fulfil its statutory obligation until a much later date and after the date when the court had in fact proceeded to make the order. That presupposes that the court that made the order was in ignorance of this failure at the time that it made its order. That is an altogether different situation from that contemplated by the Recorder, which was that the court, knowing of procedural difficulties, would nonetheless decide to continue with the proceedings. The passage that the Recorder cited from my judgment gave no support for proceeding in that situation.

I agree with both judgments.