S (A Child), Re

An annexe A report in a non-agency adoption application is a fundamental statutory protection for the child. Where the court has found the report fundamentally flawed because its compilation was unfair, continued reliance requires an adequate evidential resolution of the alleged bias and any material omission. A guardian’s or independent social worker’s separate report does not replace the mandatory matters required by the Family Procedure Rules 2010 and PD 14C. The tainted report should be removed and replaced by a fresh report addressing those matters.

The father applied for direct contact with his young son. The mother’s second husband applied for a step-parent adoption order. An earlier adoption order was set aside by the Court of Appeal in In the matter of S (A Child) [2015] EWCA Civ 649 because the process was procedurally unfair, and the applications were remitted for rehearing.

On remittal, Judge Tolson directed an independent social worker to report on contact and adoption, retained the existing annexe A report, and directed its author to prepare an addendum. The father appealed, arguing that the report was tainted and should be replaced. The central issue was whether fairness permitted continued reliance on the report or on an addendum by its author.

Sir Ernest Ryder gave judgment, with Lord Justice Sales and Lord Justice Richards agreeing. The appeal was allowed.

1. The issue was fairness and procedural regularity, not a free-standing allegation of actual or perceived judicial bias. The earlier appeal had found the annexe A report fundamentally flawed because of the author’s position and the failure to address why contact between father and son had ceased.
2. Under section 44(5) of the Adoption and Children Act 2002 and rule 14.11 of the Family Procedure Rules 2010, an annexe A report is a fundamental statutory safeguard. It must address the mandatory matters specified in PD 14C and protects both the welfare inquiry and the child’s participation in the proceedings.
3. The absence of a finding of actual bias did not cure the defect. In an appropriate case, continued reliance might follow evidence at a case-management hearing resolving that there was no bias and that there was an innocent explanation for the material omission. That process had not occurred, so the asserted justification was insufficient.
4. The child’s apparent objection to further assessment was itself part of the central issue and could not justify reliance on a tainted report. The guardian’s view had to be obtained independently. An independent social worker and guardian reporting on contact and adoption did not, without more, provide the mandatory annexe A material. Full cross-examination could not be assumed to cure that omission.
5. The report and the father’s associated statement were to be removed from the bundle. A fresh annexe A report was to be prepared by the independent social worker, addressing the PD 14C criteria. The social worker could see the child more than once unless the guardian disagreed. Further case-management directions were to be submitted for approval.

1. Court of Appeal (Civil Division). On the present appeal, the court allowed the father’s appeal from Judge Tolson QC’s case-management directions made on 12 August 2015.
2. Court of Appeal (Civil Division). In the earlier appeal, reported as In the matter of S (A Child) [2015] EWCA Civ 649, the court allowed the appeal against the adoption order and remitted the applications for rehearing before a different judge.
3. Family Court at Reading. His Honour Judge Oliver made the adoption order on 17 February 2015.