A & Anor v Essex County Council

An adoption agency does not generally owe prospective adopters a duty of care when deciding what information about a child should be disclosed, nor do professionals compiling adoption reports owe such a duty. Those decisions involve statutory discretion and must give first consideration to the child’s welfare.

However, once the agency has decided that specified information should be supplied, it must take reasonable care to ensure that the information is both given and received. Ordinary administrative failures in communicating it may therefore found liability where actionable harm is foreseeable.

Liability for such a failure ends when the adoption order is made if, during the probationary placement, the adopters acquired sufficient knowledge to decide whether to proceed. Foreseeable physical injury permits recovery for consequential psychiatric injury.

Prospective adopters brought a negligence claim against a local authority adoption agency. They alleged that, before the placement of two siblings, the agency failed to provide material information about the boy’s serious behavioural problems. They contended that, had the information been supplied, they would not have accepted the placement.

Mr Justice Buckley held that the agency owed a duty to provide all relevant information and had breached it. He confined recoverable loss to the period before the adoption orders. The authority appealed against liability, and the adopters cross-appealed against the temporal limit on damages.

The central issue was the nature and extent of any duty owed by an adoption agency to prospective adopters during the placement process.

1. Both the appeal and the cross-appeal were dismissed. The authority remained liable, although not on the judge’s broad formulation of a duty to provide all relevant information.

2. The statutory adoption scheme gave primary importance to the child’s welfare. An agency was entitled to adopt, and in individual cases depart from, a policy on the information to be disclosed. Decisions about the contents of reports and about what information should be conveyed involved professional and statutory judgment. It was not fair, just and reasonable to impose on the agency or its report writers a general tortious duty to prospective adopters in making those decisions. Such a duty would risk conflict with the agency’s primary duty to the child and with the statutory process under the Adoption Act 1976.

3. A different conclusion applied to implementation. Once the agency had decided that prospective adopters should receive the child’s Form E, medical reports, or other specified material, it owed a duty to take reasonable care that the material was communicated and received. This was an ordinary administrative function. On the judge’s sustainable findings, the adopters had not received the medical reports or an adequate oral explanation before placement. The agency therefore breached that limited duty.

4. The Court rejected the challenge to causation. The medical report would have prompted questions which would have disclosed the extent of the child’s difficulties. The judge was entitled to find that the adopters would then have declined the placement.

5. Any duty concerning the professional compilation of reports would, if it existed, be judged by the standard in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. That issue did not determine the result.

6. The adoption order was the proper cut-off for damages. The placement period was probationary and either side could withdraw. By the order date the adopters knew enough to make that choice. The order permanently altered their legal relationship with the children. Finally, foreseeable assault and property damage made psychiatric injury recoverable under Page v Smith [1996] AC 155.

• Court of Appeal (Civil Division): Dismissed the local authority’s appeal and the adopters’ cross-appeal. It upheld liability on a narrower duty to communicate information which the agency had decided should be supplied.
• Queen’s Bench Division, Mr Justice Buckley: Held the authority liable in negligence for failing to provide all relevant information to the prospective adopters, but limited damages to loss before the adoption orders.