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

Before a local authority can apply under section 22 of the Adoption and Children Act 2002 for a placement order, the adoption panel must have considered the child’s case and the agency decision-maker must have properly considered the panel’s recommendation. Materially inaccurate or incomplete information prevents that statutory process from being satisfied. The court cannot cure the defect by conducting its own welfare assessment or relying on a care order and adoption care plan. The case must be remitted urgently for reconsideration. Care orders may nevertheless stand where the statutory threshold and care plans are independently established. The court also gave guidance on accurate expert material, transparent panel minutes and reasoned decision-making.

The parents appealed care orders concerning three children and a placement order concerning the youngest child, M. The orders had been made by Mr Recorder Jones in care proceedings under the Children Act 1989. The adoption panel had recommended M’s placement for adoption without receiving important expert reports and after being given materially inaccurate information about the expert evidence. The agency decision-maker then ratified the recommendation. The Recorder recognised the defects but considered that they had been cured by the evidence and welfare assessment at the final hearing. The central issue was whether the court could make the placement order despite non-compliance with the statutory adoption process.

1. Disposition. The appeals were allowed in part. The care orders concerning all three children were upheld, but the placement order concerning M was set aside. If the local authority wished to pursue adoption, M’s case had to be referred urgently to the adoption panel, followed by a fresh application and hearing if the panel recommended adoption.
2. Under the Adoption and Children Act 2002, the local authority has separate functions as a local authority and as an adoption agency. The requirement in section 22 that the authority be satisfied that a child ought to be placed for adoption is performed in its capacity as an adoption agency. That satisfaction cannot properly arise until the adoption panel has considered the case and the agency decision-maker has properly considered the panel’s recommendation. The panel’s recommendation is a statutory precondition to the application, although the final decision whether to make a placement order remains with the court. The court followed Re P-B (Placement Order) [2006] EWCA Civ 1016.
3. The panel had not received the relevant expert reports and had been given a seriously inaccurate account of Dr Bentovim’s views. The defect was material. The agency decision-maker therefore could not properly consider the recommendation or be satisfied under section 22. The Recorder’s own assessment of M’s welfare, care plan and evidence could not substitute for the statutory panel and decision-maker process. The court distinguished Re X; Barnet LBC v Y and X [2006] 2 FLR 998 and applied the reasoning by analogy from Re M-H (Assessment: Father of Half-Brother) [2006] EWCA Civ 1864.
4. The Recorder should have adjourned the care proceedings concerning M to allow urgent reconsideration. Remission would not have caused unacceptable delay. Judicial review was unnecessary: consistently with Re S and W (Care Proceedings) [2007] EWCA Civ 232, human rights and procedural issues should ordinarily be dealt with within the family proceedings.
5. The court gave guidance requiring relevant expert material to be provided accurately to panel members and decision-makers, permitting summaries only where fair and reliable, and requiring clear minutes of panel discussions. The decision-maker’s ratification must not be a rubber stamp; the information relied on, the decision and its reasons should be transparent and minuted.
6. The care orders were independently justified. The threshold under section 31 of the Children Act 1989 was met, there was no realistic prospect of parental care, and the proposed separation of the siblings had a rational evidential foundation. Dual planning for the two older children was approved by reference to Re P (children) (adoption: parental consent) [2008] EWCA Civ 535. Arden LJ clarified that her observation in Re P-B concerned a failure discovered only after an order had been made in ignorance of the defect; it did not authorise a court knowingly to proceed despite non-compliance. Thorpe LJ agreed with both judgments.

• Court of Appeal (Civil Division): The placement order was set aside, while the care orders were upheld. The court required urgent reconsideration by the adoption panel and a fresh placement-order application if appropriate: [2008] EWCA Civ 835.
• Swansea County Court: On 28 February 2008, Mr Recorder Jones made care orders concerning all three children and a placement order concerning M.