The judgment in the case of Bexley LBC v B  has recently been handed down by Her Honour Judge Lazarus, sitting in the Family Court at Bromley.
Our recent blog, Care and placement orders – Case summary of the recent judgment in Bexley LBC v B, detailed the key facts of the case and judgment, covering the law around applications for placement orders, the key issues of placement applications and the law relating to costs. The article below details the guidance arising from the case and the next steps resulting from the judgment.
Originally, this case concerned an application for a Care Order, along with an application for a Placement Order. As will become clear, the Local Authority (LA) subsequently withdrew their application for a Placement Order, after being strongly criticised for their child adoption report (CAR) / child permanence report (CPR) and adoption processes, from allocation of the file, right through to issuing the application for a Placement Order.
The (eventual) outcome of the case was an agreed position by all parties (agreed, is probably being too kind to the LA), that the Child will be placed in Long Term Foster Care, with a high level of contact with her birth family.
This case highlights how the evidential basis of an application, in this instance a Placement Application, must follow the statutory and regulatory guidance and also be accompanied by a thorough analysis of all relevant information. If not, the Court can and will look at the offending party and order costs against them.
Guidance arising from this case
The main outcome of this case emphasises how great care and attention needs to be applied, given the most draconian order, the prospect of adoption, is a possible outcome. This sounds obvious but speaking from experience, I have seen half-hearted CAR / CPR reports, some with crucial information missing and even some containing the wrong birth family details/medical history.
It needs to be enforced and reinforced with the Social Workers that the CAR / CPR are documents that follow the child throughout their life. These are documents that not only identify their birth families but also play a massive part in identifying their adoptive placements.
The phrase ‘nothing else will do’ is dangerous. We have all heard this phrase being thrown around far too easily. Reference is made to MacFarlane LJ, as he then was, giving a stark warning against an over-simplistic interpretation of the phrase “nothing else will do” in the case of Re W (A Child)(Adoption: Grandparents’ competing claim)  EWCA Civ 793. ‘Nothing else will do’ should be a potential outcome AFTER undertaking a detailed, full analysis of the case specifics, and the child’s needs, and having taken into account all statutory and regulatory guidance.
Close adherence to the statutory and regulatory guidance needs to be in place, right through from the social worker on the ground, to the adoption decision maker (ADM) and the LA legal team. The guidance is set out clearly (and explained below) and my advice would be to use this as a checklist in each and every case that has adoption as a possible outcome.
Implications of costs – this case highlights the courts ability and their apparent readiness to order wasted costs against a LA where they have caused costs to be incurred by acting in an unreasonable manner. It is worth noting that there is no bar to costs being awarded in circumstances where all parties are publicly funded.
The LA recognised that its actions placed it at risk for the costs of at least part of the 3 days of the November hearing. The Respondents’ costs were all met by the Legal Aid Agency.
Counsel unsuccessfully, attempted to suggest that the court should consider that the actions of the LA were not ‘unreasonable’ or ‘reprehensible’, as they were the result of oversights rather than bad faith. The court disagreed and stated that it was “unreasonable to issue a placement application based on such material and, given the nature of the underlying errors, where the law relating to the standards to expect of evidence and analysis in adoption cases should be so well-known”.
The starting point here is that without the numerous and egregious errors of the LA a flawed placement application would have been avoided in the first place and there would have been no need to adjourn the November final hearing.
The Judge did not consider that it was inappropriate to propose a plan for adoption, rather that the method by which it was pursued and applied for was riddled with errors and failed to comply with important rules and requirements.
In her judgment, HHJ Lazarus stated:
“I note that the pressures on the budgets of hard-pressed local authorities is very great and any costs order deprives the (LA) of funds which can be used to assist families in need. Although this local authority was responsible for the unnecessary adjournment of a final hearing and the waste of those three days.
“I must take into account the positive steps that are anticipated will prevent errors in future… I require the LA to meet the Respondents’ costs of one day of the November hearing, to be assessed.”