SOMERSET COUNTY COUNCIL v NHS SOMERSET CLINICAL COMMISSIONING GROUP

Compliance with the Adoption Agencies Regulations 2005 is mandatory, but a breach does not automatically invalidate a placement order. The court must assess whether the breach materially undermined the decision-making process, having regard to the statutory purpose of ensuring a fully informed welfare decision.

The relevant enquiry concerns the information available to the agency decision maker when the decision was made. Later evidence may assist in assessing what was known at that time, but cannot retrospectively cure a material defect. A failure to obtain prescribed medical input may nevertheless be immaterial where the decision maker had sufficient, current and reliable information and the omission did not affect the substance of the decision.

Somerset County Council applied under Part 18 of the Family Procedure Rules 2010 for declarations concerning the legality of placement orders made for ten children. The applications followed the discovery that, while acting as an adoption agency, the Council had failed to comply with regulations 15 and 17 of the Adoption Agencies Regulations 2005.

The admitted failures included not obtaining the required medical examination or advice that it was unnecessary, and not including an agency medical adviser’s health summary in the child permanence reports. The central issue was whether those breaches rendered the agency decisions, and the resulting placement orders, unlawful.

1. Mandatory framework. The requirements of regulations 15 and 17 of the Adoption Agencies Regulations 2005 were mandatory. They existed to ensure that placement decisions were based on a holistic and properly informed assessment of the child’s welfare and future needs.
2. Effect of breach. A breach did not, however, automatically invalidate a placement order. Following Re B (Placement Order) [2008] EWCA Civ 835, Re S (Children) [2014] EWCA 601 and Re N (Children) [2021] EWCA Civ 785, the court had to determine whether the essential quality of the decision-making process had been materially undermined.
3. The assessment was fact-sensitive. The court had to examine the information available to the agency decision maker at the relevant time and ask whether it was sufficient to amount to material or substantial compliance in substance. Relevant questions included whether the agency medical adviser would probably have sought further examination or reports, and whether any resulting medical opinion would probably have undermined the adoption decision.
4. Later pre-adoption medical reports could provide evidence about the position at the time of the original decision, but could not be used retrospectively to cure an otherwise material defect. The court therefore rejected reliance on those reports as an automatic source of legal validity.
5. The proposed rectification route was conceptually inappropriate. The case involved omission of potentially relevant medical information, rather than a merely formal error in a document capable of correction.
6. Dr Smith had been formally appointed as the agency medical adviser under regulation 8(3). The absence of a formal appointment letter did not prevent the appointment being established by the surrounding evidence.
7. On the evidence in each of the ten cases, the agency decision makers had sufficient medical and other information to make lawful decisions. The breaches had not materially undermined those decisions. The placement orders were therefore lawfully made and the declarations sought by the Council were granted.