Somerset judgement continuing to cause issues for local authorities
The recent Somerset legal case continues to trouble local authorities across England. In Somerset County Council v NHS Somerset Clinical Commissioning Group & Anor [2021] EWHC 3004(Fam), the court was told that the issues in the case were not confined to Somerset County Council, and this seems to be being borne out by a high level of queries being received on the CoramBAAF Advice Line.
The first issue identified in the legal case was the appointment of the agency medical adviser (AMA) – in many areas, this seems to be a role that is by default attached to the holder of a particular paediatric post. An AMA must be named and appointed formally.
The breaches of the Adoption Agencies Regulations 2005 also identified in the legal case all relate to ways in which agencies have tried to deploy their limited medical time available to focus on the children’s needs at the point of matching. It is vital that prospective adopters have the best possible information and the most recent prognosis before committing themselves to a child, and many local authorities have been using their AMA to provide a full report only once they know that they are authorised to place the child for adoption. There have been many cases where local authority plans for adoption have been refused and a child placed with a family member instead. In these cases, the AMA time is seen to have been used unnecessarily, delaying adoption plans for other children. Other sources of information, such as the Initial Health Assessment, have been used instead to inform the agency decision-maker of the child’s health status.
While that approach is considered a pragmatic use of limited medical resources (more limited than ever as a result of the need to deal with Covid and its impact on the health system), it is not compliant with the Regulations. The Regulations require that the agency must arrange a medical examination and report by a doctor, unless the AMA has advised that these are not necessary for the specific child. The AMA must then provide a summary of the state of the child’s health, the health history and any future health needs. If this is not done, however thorough the health information provided to the agency decision-maker in other forms, the decision and any resulting placement order is invalid and will need to be reconsidered by the court. As in the Somerset case, this requires an application for declaration in the High Court, and will result in significant delays in placement for the children concerned.