Hannah Slarks succeeds in important case on the impact of public law errors on subsequent court orders


In 2021, it was discovered that adoption agencies had been failing to comply with Regulations governing how they decide on whether to apply for placement and adoption orders.  The errors mostly surrounded the production of summaries of medical information about the child being placed for adoption.  For example, agencies had relied on summaries from nurses rather than producing specific summaries as required by the Regulations.

The question was whether these public law errors undermined placement and adoption orders consequently made by the Family Court.  Somerset County Council sought declaratory relief confirming that  orders already made were sound. 

Concern that such processes and orders might all be void led to large numbers of adoption processes being put on hold within the local authority’s area and across the country.  As a result, some children were losing their opportunity to find a permanent home.  It was argued that local authorities would have to bring a very large number of historic cases back to court, requiring the notification of adopted families and birth families, sometimes many years after a successful adoption.

When the case was transferred to the President of the Family Division, Hannah was instructed for the Department for Education.  She successfully persuaded first the other parties and then the President that all extant orders were valid, unless set-aside, and therefore it was unnecessary and inappropriate to apply for declaratory relief.  The question was whether they should be revoked or appealed, and there was no basis for doing so.  Administrative errors went to the validity of an agency’s decision to make the application, not the jurisdiction of the Family Court to make the order.  If any medical evidence missed as a result of the public law errors undermined the orders in substance, that might found a successful application for out of time appeal.  However, the nature of the errors involved made this highly unlikely.  It was almost inconceivable that an adoption order could ever be set aside as a result of these kinds of errors.

As a result of this judgment, successful placement and adoption orders around the country can be left undisturbed, and ongoing adoption processes can proceed without further delay.

Hannah Slarks was instructed by GLD.

You can read the judgment here.