Essex loses appeal against adoption compensation award

In A and another v Essex County Council (judgment 17 December
2003) the court of appeal dismissed the authority’s appeal
against a high court order holding them liable for damages claimed
by adopters for the authority’s failure to provide them with
sufficient information about children placed with them.

The appeal court also rejected the adopters’ appeal against that
part of the ruling that limited their potential damages to the
period leading up to the placement and not for the four years

The court held: “There is in general no duty of care owed by an
adoption agency or the staff whom it employs in relation to
deciding what information is to be conveyed to prospective
adopters. Only if they take a decision which no reasonable agency
could take could there be liability.

“But once the agency has decided, either in general or in
particular, what information should be given, then there is a duty
to take reasonable care to ensure that that information is both
given and received.”

The court also held that on the findings of fact of the judge
the agency had decided that the prospective adopters should have
both the Form E and the medical reports about the children. The
judge held that they had not received the written medical reports
before the placement, nor did they receive a full oral explanation
of the reports from the doctor when she visited them at home.

The case has significant implications for adoption practice.
Obviously no agency could reasonably decide to provide adopters
with no information about a child being placed with them. That
raises questions about what information should be given, in what
form and how it should be transmitted consistent with the Adoption
Agencies Regulations 1983 and in the future with any new regulatory
system. As the court of appeal noted each local authority is likely
to have a policy, and it may be negligent and actionable not to
comply with it.

The full report is available here

Richard White

White and Sherwin Solicitors 

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