Hofstetter & Anor v London Borough of Barnet [2009] EWHC 3282 (Admin)

[2009] EWHC 3282 (Admin)

Case No CO/7481/2007

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 11/03/2010

Before

THE HONOURABLE Mr JUSTICE CHARLES

Between

JACINTA HOFSTETTERClaimants

ETIENNE HOFSTETTERClaimant

THE LONDON BOROUGH OF BARNETDefendant

THE INDEPENDENT REVIEW MECHANISMInterested Party

Mark Sahu (instructed by Harold Benjamin) for Claimants

Hannah Markham (instructed by LBB Legal Dep) for Defendant

Martin Chamberlain (instructed by The Treasury Solicitor) for Interested Party

Hearing Hearing date: 30 October 2009

Draft judgment circulated: 16 December 2009

Judgment

Charles J:

[1]This is a claim for judicial review of a decision made in June 2006 by the Defendant Borough to rescind the approval of the Claimants as adoptive parents of one child of either gender between the age of 0 and 2 years. That approval (the Approval) was communicated to the Claimants in August 2005. It was preceded by an assessment process and was in line with a recommendation made by an Adoption and Permanency Panel of the Defendant Borough.

[2]The decision under review was communicated to the Claimants by a letter dated the 9 June 2006 (the June Decision Letter) written by a Mr Fallon, who was then the Head of Children's Services and Director of Social Services (the Agency Decision Maker) of the Defendant Borough (the Final Decision).

[3]The Final Decision followed an earlier decision by Mr Fallon communicated to the Claimants by a letter (the January Decision Letter) which is not dated but which was sent either at the very end of January 2006 or in early February 2006 (the First Decision).

[4]The First Decision followed, and was in accordance with, a recommendation made by an Adoption and Permanency Panel of the Defendant Borough. The Final Decision followed and was in accordance with a recommendation made by an IRM Review Panel.

[5]The statutory scheme relating to the approval of persons to become adoptive parents is important. It is made against the background of the Adoption and Children Act 2002 and is, for present purposes, governed by: i) the Adoption Agencies Regulations 2005 (the 2005 Regulations), and ii) statutory guidance, namely the Adoption Guidance, Adoption and Children Act 2002 (the Guidance). Together the 2005 Regulations and the Guidance set amongst other things(a) the constitution, roles and procedures of, and

(b) standards for the work of Adoption and Permanency Panels, IRM Review Panels and Adoption Agencies.

[6]Decisions concerning the approval of, or the refusal to approve, persons as adoptive parents and the rescission of any such approval have considerable impact on the status and emotions of persons who have applied for such approval.

[7]So the process for decision making on such matters is important for such applicants and any child they may later adopt. It is also important background to the issues in these proceedings and I will return to it. But at this early stage I record the following general points: i) The Adoption Agency (here the Defendant Borough) is the decision maker. ii) An Adoption and Permanency Panel makes a recommendation to the decision maker. iii) An IRM Review Panel makes a recommendation to the decision maker. iv) In this case, and others, concerning a decision to rescind an earlier approval of persons as adoptive parents who have applied for a review by an IRM Review Panel the following steps were, and will have been, taken: a) A recommendation by an Adoption and Permanency Panel followed by a decision of the Adoption Agency to approve the relevant persons as adopters (here the Approval). b) A further recommendation by an Adoption and Permanency Panel followed by a decision by an Adoption Agency (referred to in the 2005 Regulations as a “qualifying determination”) to rescind that approval (here the First Decision). c) A referral to an IRM Review Panel and a recommendation by them. d) A decision by the Adoption Agency to rescind, referred to in the 2005 Regulations as the “decision in the case”, (here the Final Decision).

[8]It can therefore be seen that the statutory decision maker (the Adoption Agency) has the benefit of being able to consider two recommendations within this “rescission process” and three recommendations overall (when the initial approval is taken into account) which provide assistance to it in carrying out its decision making function. The individual decision maker is a senior officer of the relevant Adoption Agency. An Adoption and Permanency Panel is set up by the relevant Adoption Agency. An IRM Review Panel is an ad hoc independent panel. The Interested Party is not a legal person. It is a review process conducted by ad hoc committees and it is represented in these proceedings by the Secretary of State for Children Schools and Families.

[9]The nature and effect within the statutory process of: i) the “qualifying determination” and thus the First Decision conveyed by the January Decision Letter, ii) the referral to an IRM Review Panel and its recommendation, and iii) the “decision in the case” and thus the Final Decision conveyed by the June Decision Letter, are important. In particular the question arises whether the referral to the IRM Review Panel and the decision that follows it is to be equated to an appeal, or whether it is part of the checks and balances in the overall decision making process.

[10]As will appear later, I have concluded that it is the latter and thus that the qualifying determination (the First Decision conveyed by the January Decision letter) is one in which the Adoption Agency is indicating what, on the information then available and for the reasons it then gave, it was then minded to do. Or (to use the word in the 2005 Regulations) it then proposed to do. So the referral to the IRM Review Panel, and the decision that follows it, is not equivalent to, and should not be equated to, an appeal.

The Grounds and the issues I invited the parties to address

[11]The case has had a somewhat protracted procedural history which I need not go into. The upshot of it was that the case was argued against the background of the following definition of the issues:

“ Grounds of Challenge (1) The Defendant’s Decision-maker failed: (a) to recognise the deficiencies and/or flaws in the decision-making process conducted by the Defendant’s Adoption Panel in January 2006; and (b) to consider the previous panel decision of 22 August 2005; (2) The Defendant’s Adoption Panel placed undue weight on the substantive reasons for Brent LBC’s decision to dismiss Mrs Hofstetter for gross misconduct; (3) The Defendant’s decision-making process was unfair in that the same decision-maker (Mr Fallon) took the initial decision to rescind the approval of the Claimants as prospective adopters in January 2006 and also the final decision on 9 June 2006; and (4) The Defendant’s Decision-maker failed to give any or any adequate reasons for his decision of 9 June 2006. Questions raised by the judge to be addressed in evidence and submissions A Does the procedure by which one side only is invited to comment on IRM minutes give rise to unfairness either (a) generally, or (b) in this case? B What are the proper functions of the panels and of the agency decision-maker?”

Questions raised by the judge to be addressed in evidence and submissions B What are the proper functions of the panels and of the agency decision-maker?”

Questions raised by the judge to be addressed in evidence and submissions

[12]These issues were agreed following an adjournment of the original hearing, at which it seemed to me that the issues in the case were not properly defined, and later interim applications. It will be apparent from the questions I raised that in my view it is relevant to consider the process and procedure generally. In the context of Ground (3) I was concerned as to whether this was a case of apparent bias.

[13]It is to be noted, and this was expressly confirmed by counsel for the Claimants at the hearing that the Grounds do not contain either(a) a complaint that the procedure adopted before the IRM Review Panel was flawed in any way, or

(b) an assertion that the recommendation made by the IRM Review Panel was flawed in any way.

[14]However, as the response of the Defendant Borough (and of the Interested Party, and therefore - the Secretary of State Children, Schools and Families - the Secretary of State) to the reasons challenge in Ground (4) was that the Agency Decision Maker had adopted the reasons of the IRM Review Panel in their totality, it seems to me that a relevant flaw in their process and conclusions, if there be one: i) has effectively been adopted by the Defendant Borough, and so ii) could constitute a ground of challenge to its decision in June 2006 (the Final Decision).

[15]However, in accordance with the confirmation referred to above and although some of the written submissions put in on behalf of the Claimants do advance such arguments, the Claimants, through their counsel, did not advance any argument that the process, reasoning, conclusion or recommendation of the IRM Review Panel was unfair or flawed. So the point made by Collins J when giving permission relating to the fact that the Claimants were absent when the social workers were heard and questioned by the IRM Review Panel was not pursued. Only my question “A” remained in respect to the procedure adopted by the IRM Review Panel. I return to this later but record at this stage that the procedures relating to the presence of prospective adopters when the social workers are heard and the sending out of the minutes have now changed.

[16]In my view, counsel was correct to take this course because it is not reasonably arguable in the circumstances of this case that that process, reasoning, conclusion or recommendation led to any unfairness or could otherwise found a remedy on public law grounds. Naturally this presents the Claimants with a difficulty.

[17]This is because what the Claimants would have to argue is that, notwithstanding the lawful process before and the lawful recommendation made by the IRM Review Panel, the flaws in the earlier parts of the process carried forward to, and when they are considered with, the lawful recommendation made by the IRM Review Panel and the Final Decision, found the result that that decision of the Defendant Borough to rescind is flawed at public law.

Background facts and discussion relating to them

[18]For some time before and over the relevant period leading up to the Final Decision, Mrs Hofstetter had worked as, and was working as, a social worker.

[19]In August 2002 she had been dismissed by Brent LBC on the grounds of gross misconduct. She disputes the underlying reasons for that dismissal which followed an internal process at Brent LBC, which she contends was substantively and procedurally unfair. She issued proceedings in the Employment Tribunal which were settled.

[20]Thereafter she worked for a number of local authorities including the Defendant Borough.

[21]It is common ground that she and her husband did not disclose anything about this dismissal, or the events relating to it, to the social workers who dealt with their application for approval as adoptive parents. So the relevant persons recommended and granted that approval (the Approval) without any knowledge of those matters. This Approval was made in August 2005 and in accordance with normal procedure and practice followed investigation, discussion and recommendation. This process identified a number of positives which supported and led to the Approval.

[22]In October 2005 the Defendant Borough received a letter from the General Social Care Council (the GSCC) stating that(a) it had received a complaint about a social worker, Mrs Hofstetter,

(b) it had come to their attention that she had made an application through the Defendant Borough to become an adoptive parent,

(c) it was currently investigating her suitability to remain on the GSCC Register for Social Workers and believed this information may be pertinent to the assessment of her by the Defendant Borough as an adoptive carer, and

(d) if the Defendant Borough had any queries it was not to hesitate to contact the writer of the letter on the telephone.

[23]Unsurprisingly, this offer was taken up and there were telephone conversations between the social worker dealing with the Claimants (Mrs Shepherd) and the writer of the letter (Mrs Woodward). Contemporaneous notes of those conversations made by Mrs Shepherd contain the following: i) 17 October 2005: I phoned Fiona Woodward and she told me that she wrote to me after receiving an anonymous allegation [re Mrs Hofstetter] having been dismissed for misconduct by LB Brent in 2002 while working as a SW. There were several allegations re CP issues. [Mrs H] did not disclose the info to other parties; she is aware of this investigation and is very distressed about it. They will be taking to a committee for a decision re [Mrs H’s] continuing registration. I asked Fiona to tell me the details of the allegations: she said she will talk to her manager re whether she can do this. We agreed to speak tomorrow. ii) 17 October 2005: After speaking to JB [Mrs Belsham] and DG [Debbie Gabriel] we agreed that I would contact [Mrs H] and tell her I needed to meet with her urgently re the above, which I did. She agreed that I could meet with her today - when I arrived she was very distressed and sobbing. I said that I want to hear what happened from her, that we are very concerned that she did not impart this info during the assessment when it could have been resolved more easily. I made the point that she has not been entirely open and honest with us, she was evasive about why she has omitted this info, but admitted that she was concerned that she might jeopardise their application to adopt. She said she wanted to tell me but [her husband, Dr H] advised her to wait. She said she had intended to tell me on Thursday - the day of the planned meeting with Norfolk SSD, but also agreed when I said that this would have been a most unlikely time to give me such information. --------------- I asked her to tell me about the specific allegations, which she did. There was nothing of a CP nature and nothing terribly significant in her account more practice issues - she assured me that she is not withholding any info. She told me that she was employed by Brent and that she was targeted by two new managers in 2001 who were West Indian. She said they frequently made derogatory remarks re Africans and she believed them to be racist. She said that her Appraisal prior to their arrival was good and there were no identified issues (she showed it to me) and that the dynamic change completely after their arrival. She also showed me letters from her solicitor which evidence that she received an out-of-court settlement of £3,500 for unfair dismissal. She agreed to give me copies of letters pertaining to this and various employers references, which she let me take with me. A reference from Jo Pymont in 2003 refers to [Mrs H] having told her that she was involved “in a disputed staffing matter”, which backs up her claim that she told subsequent employers that there was a dispute; she admits she did not expand on it. ---------------------------------- I told [Mrs H] that we would have to investigate the matter now. She was understandably extremely distressed and was desperately seeking reassurance that this will not affect their adoption application. I told [Mrs H] that although I am very sympathetic re the matter, they should have informed us of this before, and that I'm not a position to give her false reassurance. I do not know what the outcome will be at this point. We agreed to speak tomorrow. There are a number of inconsistencies in what she said, as there always are with [Mrs H] particularly when she is distressed; the details keep changing and it is hard to get a coherent account. She is desperately distressed about what she sees as the unfairness of the situation, although she acknowledges that she should have been more honest from the outset. She describes herself as a “secretive” person, with which I agree. iii) 18 October 2005: [Dr H] was very angry and distressed; it was obvious that he was in tears during our conversation. He also told me that he has spoken to Fiona Woodward (GSCC) this morning. I asked him why they had not disclosed this info during the assessment: his account contradicted what [Mrs H] told me, that it was resolved, that they had not discussed it, that it had nothing to do with their application to adopt and was not relevant. He appeared not to appreciate why they should have informed me of this and he made it clear that he thinks I am being very unfair. I said that this matter has now come to our attention and we have a duty to investigate it. iv) 18 October 2005: T/C from Fiona Woodward, she said that she had spoken to [Dr and Mrs H] this morning and is concerned that they are not showing sufficient insight re their part in this, in terms of not having disclosed the info. She has spoken to her manager: they had decided to leave it to [Mrs H] to show me certain documents; namely: the process of investigation, the dismissal letter and notes from the disciplinary hearing. They have the dismissal info from Brent and are gathering further info. When they have sufficient info they will decide whether it should go further or NFA. I asked whether [Mrs H] had made any reference to the matter in her registration application - she said she mentioned there had been an incident but that it was settled amicably, which it clearly was not. I said she told me that she told subsequent employers that there had been an incident, now resolved. Fiona said she had not made the agency who had signed her registration pack aware. Fiona asked to speak to JB. She told her that the concerns were around competency and trust issues, not CP. [Dr H] was very angry during today's phone call when I told him that I have had to postpone our meeting with the Norfolk social worker's re matching ------------------ . He made it clear that he thinks the situation is ludicrous and unfair. v) 18 October 2005: T/C Jo Pymont, I explained the situation and the concerns and referred to a reference of [Mrs H] in 2002. Jo said she remembers her as an “average” s/w who was fairly inexperienced at the time. ----------- Jo said that she had no concerns about [Mrs H] in terms of reliability or honesty: she had been undergoing IVF treatment at the time and had to have a lot of time off work, but was open about it all. She remembered her telling her something about a situation in Brent, but is unable to recall further details.

[24]The notes then indicate that Mrs Hofstetter brought some papers to the office and gave them to Mrs Shepherd on 18 October. They continue over the next three days showing regular contact and that Mrs Shepherd was concerned about the distress of both the Claimants. On 24 October the Defendant Borough wrote to the Claimants telling them that they would meet formally during the next week to discuss the matter. On 28 October there is a note of a telephone conversation with Dr Hofstetter in which at first he was very angry and upset and made it clear that he was of the view that they had not deliberately withheld information and did not consider it important anymore and by the end of which he was calmer.

[25]As recorded in notes at the time in the report to the Adoption and Permanency Panel in January 2006 Mrs Shepherd states that: “ On 31 October, we spoke to the GSCC who had heard from the London Borough of Brent with regard to [Mrs Hofstetter’s] dismissal and the Employment Tribunal settlement. The GSCC was informed by the Senior Employment Lawyer for Brent, Mr Andrew Potts that "the payment made to Ms H in an out-of-court settlement was purely an economic one and made without the admission of liability. Brent Council maintains that the dismissal on grounds of Gross Misconduct still stands, and the settlement of proceedings does not impact on that decision." On the basis of the above information we wrote to the Claimants ---------------- “

[26]That letter from Mrs Belsham (the adoption team manager) and Mrs Shepherd is dated 31 October and includes the following passages:

“ Following our meeting today with Debbie Gabriel, Assistant Divisional Manager, we reached a decision that we have enough concerns on the basis of the information you withheld, not to proceed with you as prospective adopters. Our decision-making was also informed by information from the GSCC: they have now heard from Brent who have clarified that the gross misconduct still stands. We plan to take the matter back to Barnet’s Adoption and Permanency Panel with the recommendation that your approval should be rescinded. We will be writing a report for Panel which you will be given the opportunity to see and respond to. We fully appreciate that the decision we have reached is very distressing for you, and would urge you to contact Adoption UK who provide independent support, information and advice to all concerned with adoption. If you would like the opportunity to discuss the contents of this letter in person, we could meet with you on 8 November 2005 at 3:30 pm or on 9 November at 11:30 am. Please contact us should you wish to meet with us on either of the above dates. ”

[27]It is to be noted that in that letter the assertion is made by the social workers that the Defendant Borough would not be proceeding with the Claimants as prospective adopters, and that the social workers involved would be making a recommendation that their approval should be rescinded. This letter therefore makes it clear that the social workers had decided on the information they then held relating to the dismissal of Mrs Hofstetter by Brent to recommend that the approval be rescinded. I am not clear what that information was. But, in my view it is not necessary for me to try to analyse this because it is more appropriate to look at the report and recommendation made to the Adoption and Permanent Panel and its accuracy by reference to the information that was by then available to the social workers.

[28]Before that report to panel was made the papers show that a long and emotional meeting was held on 23 November at which Mrs Hofstetter denied that she had told Mrs Shepherd at their meeting on 17 October that she had wanted to tell her about the dismissal but her husband did not, and that she had told her that they had intended to tell her at the meeting with the Norfolk social workers. The Claimants maintained that there had been no intention to be dishonest. The social workers repeated that they would be reporting to panel making a recommendation that the approval be rescinded.

[29]Pausing here, as indicated by Collins J when giving permission, points arise as to the relevance of disputed grounds for the dismissal by Brent particularly as Mrs Hofstetter received compensation for unfair dismissal. In that context the question arises whether the fact that someone has been dismissed for gross misconduct that has nothing to do with matters relating to child protection and care is relevant to their ability to act as a good adoptive parent and the need to address this question is heightened when the background events are disputed and took place sometime ago. These are points that were being made by the Claimants. As appears from the notes of the telephone conversations I have referred to there is some confusion in the initial exchanges with the GSCC as to whether child protection issues were involved in connection with the dismissal.

[30]On the other side is the point that as Mrs Hofstetter, as a social worker, would be well aware (and as would have been made clear in the process leading up to the Approval to both Claimants) great weight is placed by Adoption Agencies on the need for there to be openness and honesty and full disclosure between(a) applicants for approval as adopters and adopters, and

(b) the relevant agencies before and after an adoption.

[31]This approach relating to the need for openness has obvious force but inevitably it also gives rise to issues on which judgments have to be made concerning disclosure, its relevance and impact. The force of, and reasons for, the approach are not only to ensure that the relevant decision makers are properly and fully informed and therefore take into account all and only relevant matters but also to assess the likely approach of adopters if, or as and when, they are faced with difficulties as adoptive parents. This is an important aspect of the need for there to be a frank, open and honest relationship between adopters and the relevant agencies at all times because an assessment of how the adopters will be likely to address problems in their parenting of an adopted child is an important aspect of their suitability as adopters.

[32]The reactions and assertions of the Claimants relating to the problems and enquiries that flowed from the discovery by the Defendant Borough of the dismissal of Mrs Hofstetter by Brent are relevant.

[33]So, when the Defendant Borough was informed that Mrs Hofstetter had been dismissed for gross misconduct: i) its social workers were faced with a situation that plainly required investigation and they had to make judgments as to the best way to investigate and consider this information, ii) the Claimants were also faced with a situation that required them to explain why this had not been disclosed, and thus for example to explain why they had disclosed Mrs Hofstetter’s caution for shop lifting as potentially being relevant but not her dismissal on disputed grounds described by Brent as gross misconduct, and iii) the manner in which the Claimants dealt with the investigation relating to undisclosed dismissal, which clearly caused them considerable distress, was relevant to the assessment of their ability to deal openly, honestly and effectively and in the best interests of an adopted child with problems that may arise in the parenting of that child.

[34]The social workers decided to investigate the reasons for the dismissal and to address them in their report to the Adoption and Permanency Panel. Before Mrs Shepherd wrote her report for the Adoption and Permanency Panel held on 18 January 2006 the information the social workers had received included the following letters and emails (which the parties thought were listed items put before and recorded as having been read by that Panel): i) A letter to Mrs Hofstetter from a Mr Potts of Legal and Democratic Services at Brent dated 22/12/2005 which included the following:

“ As we discussed I can confirm that there were no allegations against you that were considered to be child protection issues and that the Borough has not made any reference to any statutory agency in respect of your professional practice or conduct. Your file has now been closed and archived and the matter is considered to be closed, we will however, respond to any further enquiries that are made to us by statutory agencies. ” ii) An email dated 10 January 2006 from Mr Potts (described in it as a Senior Employment Lawyer) at Brent which included the following: “ As we discussed I am writing to confirm the Council's position in relation to Ms Hofstetter. My instructions are that notwithstanding the failure to deal with the allegations within the context of the Child Protection procedure, the substance of the allegations relating to the children were so serious as to warrant instant dismissal. However, the position is that the allegations that were made against Ms Hofstetter were not dealt with under a formal Child Protection procedure and were only dealt with in the context of the disciplinary code. ” iii) An email dated 10 January 2006 from Mrs Woodward at GSCC which included the following: “The GSCC provided information to your Council after being informed by Mrs Hofstetter's previous employer that she had applied to become an adoptive parent in Barnet ---- the GSCC provided that information to your Council nder our responsibilities of public protection as issues of child protection were raised in the disciplinary papers received from Brent Council. As you too have received those papers I do not need to repeat the allegations, other than to say the allegations were of a serious nature --------- in several childcare cases and were upheld by Brent as gross misconduct. --- Brent have informed the GSCC that they stand by the decisions made at Mrs Hofstetter's disciplinary hearing and that all monies paid to her work for economic purposes. The GSCC were concerned (after a number of phone calls were received from Mr and Mrs Hofstetter in October 2005) that Mrs Hofstetter did not accept the allegations against her. Mrs Hofstetter denied the allegations to the GSCC and stated that they were "blown out of proportion" despite the allegations being upheld by Brent after what appears to be a full and thorough investigation.”

[35]The papers before me also contain another letter from Mr Potts dated 12 December 2005 in which he says:

“ In answer to your first question please find attached the letter of dismissal which sets out the reasons for Mrs Hofstetter’s dismissal. For the sake of completeness please find also attached a letter of appeal which gives details of her defence to the allegations, the appeal was however unsuccessful. We can confirm that there were no issues which we consider to be child protection issues which were upheld against Mrs Hofstetter. (my emphasis) The Employment Tribunal proceedings were settled and according to the agreement that settlement was on an economic basis and without prejudice. The department did receive a request from Mrs Hofstetter to review the whole matter but decided not to pursue this avenue.”

[36]Mrs Belsham and Mrs Shepherd wrote to the Claimants on 14 December 2005 stating:

“ Following our meeting with you on 23 November 2005, Barnett's legal representative has contacted Mr Andrew Potts, Brent's Senior Employment Lawyer, to clarify the facts regarding [Mrs Hofstetter’s] previous employment at Brent and her subsequent termination of employment. Mr Potts has advised us that the termination of employment from Brent on the grounds of Gross Misconduct still stands, and that the settlement was purely economic. You advised us that Mr Potts is in the process of reviewing the whole matter, but he has confirmed that this is not the case, despite [Mrs Hofstetter’s] request that the department should do so. He has also sent us copies of the tribunal documents to submit to Barnet’s Adoption and Permanency Panel (my emphasis). Barnet's Adoption and Permanency Panel is scheduled to meet on the morning of 18 January 2006, when the recommendation to rescind your approval as prospective adopters will be considered.”

[37]This reflects what the social workers had been told by the GSCC on 31 October 2005.

[38]The Tribunal documents show that the case was settled on payment of £3,500 to be made payable to “Cain & Abel Law Firm” on the basis that no admissions as to liability were made and on a confidential basis. That firm had written to Debbie Gabriel (the Assistant Divisional Manager) on 31 October 2005 in response to a letter dated 24 October 2005 stating:

“ We had represented Mrs Hofstetter in the matter of her dismissal from her employment with Brent Council on charges based on factual errors and therefore in our view substantially (sic) and procedurally unfair. This matter was however settled out of court. Following this settlement, the parties reached an understanding by which both parties agreed not to disclose the facts forming the basis of the case and the terms of settlement. On the basis of this settlement and understanding, we had accordingly advised Mr and Mrs Hofstetter of their obligations not to disclose Mrs Hofstetter's dismissal or the facts forming the basis of that dismissal and the terms of settlement whatsoever. We were and remain of the view that Mrs Hofstetter's employment and the facts surrounding that dismissal has no relevance or bearing on the assessment of their fitness as parents to adopt a child. Please feel free to contact the writer if we can be of any further assistance.”

Please feel free to contact the writer if we can be of any further assistance.”

[39]That letter supported the Claimants. In their response to the report of the social workers to the Adoption and Permanency Panel they refer to the “gagging clause” in the settlement and that it was agreed with future employment prospects in mind. But to their credit, so far as I have seen they have not relied either(a) on the assertion of the writer relating to the confidentiality of the settlement as the reason why they did not disclose the dismissal to the Defendant Borough within the adoption process, or

(b) advice given to them by that solicitor in accordance with the assertion in that letter relating to the relevance or bearing of the dismissal on their fitness as adopters. Rather the thrust of their reason for not disclosing the dismissal set out in their representations to the Adoption and Permanency Panel, and the IRM Review Panel, is that they considered the dismissal and the circumstances around it as irrelevant and an unpleasant and upsetting incident in which false assertions had been made against Mrs Hofstetter and something that was water under the bridge.

[40]In my view, the information set out above presents a confused and confusing account of what had occurred in respect of the dismissal.

[41]The decision of the social workers to recommend rescission by at the latest 31 October 2005 was based on limited information. This correctly did not form one of the bases of challenge because to their credit the social workers continued to gather information and discuss the issues with the Claimants and this decision was overtaken by the report and recommendation to the panel.

[42]But I pause to record that: i) I take the reference to not proceeding with the Claimants as prospective adopters (in the letter of 31 October cited in paragraph 26 above) to mean that the social workers would for the time being not pursue placement based on the existing Approval, ii) in my judgment this could have been better expressed to make it clear that the social workers could not themselves rescind the Approval and therefore that what they had decided to do was to suspend its implementation pending referral to an Adoption and Permanency Panel iii) in my judgment the formation and giving of the view that they would be recommending rescission of the Approval, without acknowledging and making it clear that it was a preliminary one whilst investigations continued merits criticism notwithstanding the sympathy I have for the social workers in respect of the difficult situation they found themselves in which was compounded by the quality of the information they were being given. I also add that the notes of meetings at the time make it clear that the social workers were very aware of, and sympathetic to, the distress of the Claimants.

[43]In the report to the Adoption and Permanency Panel the social workers do not change their minds. Mrs Shepherd sets out the history from the receipt of the information from the GSCC about the dismissal and her observations and conclusions of the reactions of the Claimants.

[44]Unfortunately the report wrongly refers to the allegations made by Brent being upheld by an Employment Tribunal. This seems to represent a confusion in the mind of Mrs Shepherd between the internal processes at Brent (which she records Mrs Hofstetter did not attend) and the Employment Tribunal because although the information from Brent contains some “mixed messages” it was clear from the information provided to the social workers that the Employment Tribunal had not considered the underlying factual disputes. To my mind there are significant differences between a situation where an independent Tribunal has considered and reached findings on the underlying disputes relating to the grounds of a dismissal and on where this has only been considered in the internal processes of the employer. These relate both to the dismissal process itself and the reasons why it was not disclosed.

[45]The report and recommendations need to be read in full. The recommendation of rescission seems to rely to some (but to my mind an unclear) extent on the substance of the allegations made but the evidence does not reveal what, if any, weight was placed by the social workers on this error or whether the social workers appreciated its significance. The recommendation contains the following:

“Our decision to recommend that the couple's approval as prospective adopters be rescinded has been informed by the information received by the GSCC regarding [Mrs Hofstetter’s] dismissal from Brent on the grounds of Gross Misconduct, the substance of the allegations against her, the couple’s withholding the information during the assessment process and their inability to acknowledge its relevance to them as prospective adopters. The following allegations were considered and upheld by the Employment Tribunal: 1. That [Mrs Hofstetter] removed a car park buzzer from a colleague's handbag without authorisation. 2. That [Mrs Hofstetter] was grossly negligent in her professional duties such as to prejudice the care of children to whom she had a responsibility as a corporate parent. 3. That the level and quantity of [Mrs Hofstetter’s] rude and abusive behaviour was unacceptable to the Council and incompatible with her employment in Brent ”

Please refer to attached, the letter of dismissal for details in respect of the above allegations. ---------------------- The second allegation (Case b) refers to [Mrs Hofstetter] failing to investigate an allegation that a stabbing had taken place in the home of a child’s relative. The tribunal found that her failure to record and investigate that incident could have put a child at risk of serious harm and that she was grossly negligent in the performance of her duties. ------------------------------ On the basis of their withholding of very significant information, we are no longer confident that we could work in partnership with the couple. While we would have no concerns that they would deliberately harm a child in their care, we would be concerned that they might withhold significant information in respect of the child’s welfare and progress generally. In the allegations against [Mrs Hofstetter] , there are specific examples of her misleading colleagues and misrepresenting the views of other professionals. (my emphasis)”

The following allegations were considered and upheld by the Employment Tribunal:

[46]This shows that the recommendation of the social workers was not based on a view that Mrs Hofstetter had directly behaved inappropriately in the care of a child but on an allegation of non-reporting of a serious allegation of harm to a child and examples of her having misled colleagues, which (together perhaps with a view that findings were made against Mrs Hofstetter by the Employment Tribunal) seem to underlie the view that the Claimants withheld very significant information.

[47]The Claimants’ response to that report is robust. It disputes the history of the exchanges, and Mrs Shepherd’s opinions of their reactions, following the receipt of information of the dismissal from the GSCC. It mirrors and confirms points made by them during the exchanges leading up to the meeting of the Adoption and Permanency Panel. They make it clear that their case is that the allegations made against Mrs Hofstetter were malicious and false and therefore that Mrs Shepherd’s report is based on malicious, inaccurate and untrue allegations.

[48]They also point out that in their view Mrs Shepherd’s statement that allegations against Mrs Hofstetter had been “upheld by the Employment Tribunal” is a clear indication that she has misrepresented and distorted the facts and is completely untrue because all the documents in her possession:

“ including the signed agreements and ACAS document state quite clearly that the case was filed at the Employment Tribunal but the matter settled out of court ”

[49]The Adoption and Permanency Panel had before it the Form F Employment History Chronology of Mrs Hofstetter which does not contain any reference to her employment at Brent.

[50]The Adoption and Permanency Panel met on 18 January 2006. It did not then reach a conclusion and it reconvened on 25 January 2006 when it made its decision. The minutes of the meeting on 25 January record that on 18 January concerns were expressed by the panel about information missing regarding the Employment Tribunal and continues:

“Mrs Shepherd had confirmed by telephone to Barnet Legal Services that there had been a misunderstanding in the information she had seen and it was not the Employment Tribunal information. This information would have been extremely helpful had it been made available for Panel to view, and it is questionable why [Mrs Hofstetter] has not produced this information if she feels it may vindicate her. ”

[51]This is the first paragraph of the minutes and is not easy to follow when read alone or with the remainder of the minutes.

[52]The reported acknowledgment of the significant mistake made by Mrs Shepherd about the role of the Employment Tribunal fails: i) to make clear what information contains the alleged misunderstanding, ii) to acknowledge that, as the Claimants were asserting, the reference to the Employment Tribunal having upheld the allegations was simply wrong (which was the case on the information I have been shown that was available to the social workers), or iii) to comment on how the significance of the error to the thinking and recommendation of the social workers and their reliance on the nature of the allegations made against Mrs Hofstetter.

[53]Partly for that reason it is not easy to follow how the Panel took this error and its impact into account in assessing the impact of the non disclosure of the dismissal.

[54]The opening paragraph of the minutes indicates that the Panel thought that there was more information that Mrs Hofstetter could have produced but did not. I am unclear why they thought that might have been the case. It is plain that this error is carried through into their final reasoning because one of the bullet points relied on is “missing information, withholding information” and the minutes also record that the Panel had “considered in depth the missing information and whether this is relevant”.

[55]The Panel could not as such have considered information they did not have in depth (or at all), and I take this to be a reference to them considering whether they should adjourn to seek the information and thus whether it would make any difference. They decided that if it totally vindicated Mrs Hofstetter it would make no difference. But this still leaves in play issues as to why Mrs Hofstetter did not produce the information the Panel wrongly thought was missing and those issues at least potentially are relevant to the view taken on the impact of the non disclosure of the dismissal by Brent.

[56]In my judgment the report of the social workers and the minutes of the Adoption and Permanency Panel found an argument that the Panel erred and took irrelevant considerations into account. This is because factors presented to the Panel by the social workers were inaccurate and/or incomplete and/or misleading and/or not clearly corrected and this had, or contributed to, the result that aspects of their approach, consideration and reasoning were flawed or not adequately explained.

[57]So if matters had stopped at this stage, on classic public law grounds the Claimants would have had an arguable case that the decision of the Defendant Borough was flawed because the decision maker in adopting, without further explanation or any qualification, the recommendation of the Panel had effectively adopted the flaws in the approach and reasoning of the social workers and the Panel and therefore did not take into account all and only relevant factors or provide proper reasons for the decision.

[58]But the process did not stop there, and arguably no public law challenge could have been made at this stage because of the alternative route open to (and taken by) the Claimants.

[59]But, at this stage, I pause to record that in my view: i) the grounds asserted by the Claimants that(a) the Agency Decision Maker failed to consider the previous panel decision of August 2005 (which led to their approval as adoptive parents), and

(b) the Adoption and Permanency Panel placed undue weight on the substantive reasons for Brent LBC’s decision to dismiss Mrs Hofstetter for gross misconduct, are not made out, and ii) the reasoning in the minutes recording the conclusions of the Adoption and Permanency Panel by reference to the employment history provided by Mrs Hofstetter is compelling.

[60]In my view, the assertion that insufficient attention was paid to the earlier recommendation and the Approval (in respect of which I was provided with some additional information by the Claimants after the hearing) is not made out because: i) The Approval and the reasons for it are the necessary starting point for the consideration of its rescission. ii) The report of Mrs Shepherd to the Panel and the minutes of the Panel contain a number of references to the factors that favoured the Approval and thus to it being maintained. And the Panel minutes record that then Panel were conscious that they did not question the Claimants’ ability to parent a child. iii) The powerful reasons in favour of their conclusion that the failure of the Claimants to disclose the dismissal was a deliberate non-disclosure are not materially affected by the factors that founded, and the fact of, the Approval.

[61]The assertion that the Panel placed undue weight on the substantive reasons for Mrs Hofstetter’s reasons or dismissal as advanced by Brent is not made out because: i) The approach taken, that even if she could have totally vindicated herself by reference to information that the Panel thought was missing they would have recommended rescission, points strongly against that view. ii) The Panel record in their minutes that it is unlikely that they will ever know the real nature of these allegations.

[62]Finally by reference to this stage, I would like to record that in my judgment the papers show clearly that the social workers approached the issues in an honest way having regard to the welfare of any child the Claimants might adopt. In my judgment, the assertions made against them to the effect that they deliberately distorted or misrepresented the facts and events are misconceived.

[63]The January Decision letter was in the following terms:

“ I write following the recommendation of the Adoption and Permanency Panel to rescind your approval as adopters. I have now considered the recommendation and, as agency decision maker, confirm that I endorse the panel's view and have reached a decision to rescind your approval as adopters with this agency. Once formal minutes are finalised, you will receive a copy for your information and records. You are, of course entitled to seek a review of this decision through the independent review mechanism (leaflet enclosed).”

[64]This letter did not enclose any minutes and indicates that by that stage formal minutes had not been finalised. In his evidence, Mr Fallon, the Agency Decision Maker asserts that he met with the agency adviser to the Panel on this occasion Debbie Gabriel, the Assistant Divisional Manager, that he read the draft minutes of the Panel meeting and the papers presented to the Panel and discussed the relevant issues relating to the case with Debbie Gabriel and reached his decision to endorse the Panel's recommendation.

[65]Debbie Gabriel had been involved in some of the earlier investigations relating to the disclosure of Mrs Hofstetter’s dismissal. She is shown in the formal minutes of the Adoption and Permanency Panel under the heading "participants" as an adviser to the Panel as was Mrs Belsham (the adoption team manager) who was one of the social workers involved in the investigation and who is also shown as having given evidence orally to the Panel.

[66]I was told, and accept, that neither were members of the Panel, and therefore no point arises on the basis that they were. However a lesson to be learnt by the Defendant Borough is that the minutes should make clear(a) who are and who are not members of the Panel, and

(b) the roles of all others who were present at the hearing and during the deliberations of the Panel.

[67]In their application for review the Claimants state that the January Decision Letter was undated and they wrote back asking for the minutes which were sent with a letter dated 21 February 2006. The Claimants were therefore given the First Decision without any accompanying reasons above the assertion that the Agency Decision Maker agreed with the recommendation of the Panel whose minutes he had considered and which would be sent when formal minutes had been prepared and this was done some three weeks later.

[68]The letter therefore does not inform the Claimants of the reasons for the First Decision but tells them that they will find them out as and when formal minutes have been prepared. In my view, as well being in breach of Regulation 27(4)(b) of the 2005 Regulations, that was insensitive and bad practice. I express the hope that the Defendant Borough takes steps to ensure that a similar approach to providing reasons to disappointed potential adopters is not repeated.

[69]In their application for review by an IRM Review Panel the Claimants set out their grounds for disagreement with the recommendation of the Adoption and Permanency Panel and thus the First Decision. These include: i) An assertion that the conclusion that Mrs Hofstetter deliberately wanted to hide her employment and dismissal by Brent was not credible because it had never been news to Barnet that she had worked for Brent and her disciplinary issue had been shared with her managers at Barnet, she makes reference to Jo Piermont (who I think is the Jo Pymont spoken to by Mrs Shepherd in October 2005 - see the notes of her telephone conversations referred to above - and she is so referred to later in this document as the writer of a letter of reference dated 4/3/03 that mentioned the Brent issue). ii) To my mind understandably, the point that the Claimants find it strange that the Panel makes repeated reference to not having all the relevant information. They state that they were not aware of any additional information that the Panel required that was not provided and to the information provided to Mrs Shepherd. iii) An assertion that the Panel relied heavily on the malicious allegations made by Brent and not on their suitability to be parents which was contrary to what was requested of them by the Chair. These points were supported by a statement to the IRM Review Panel which included the assertion that in part by reference to the approach taken to the “missing information” the whole Barnet process was unfair, biased and raised serious questions about their standards and practice.

[70]As I have mentioned earlier no complaint is made about the conduct of the IRM Review Panel. I, and the parties, have seen an unredacted version of their minutes in the course of these proceedings. They clearly show that what I consider to have been flaws in the approach and reasoning of the Adoption and Permanency Panel are not repeated and no confusion remains as to the role of the Employment Tribunal or in respect of “missing documents”.

[71]The IRM Review Panel clearly, and in my view correctly in the circumstances, proceeded on the bases, as they put it, that(a) they could not make any assumptions about the validity of the charges against Mrs Hofstetter by Brent,

(b) they must be mindful of not re-examining the disciplinary, and

[72]In the recorded questioning this was the approach they took.

[73]Their minutes need to be read as a whole. They record the evidence given, and end with a summary of their discussion under headings which include “strengths identified”, “concerns identified”, and their recommendation (which was on an 8:1 majority) and their reasons, which were:

“ The Panel were not satisfied about the Hofstetters understanding about the role that openness and honesty places around the whole adoption process. The implications of the Hofstetters not informing the Agency about the circumstances of [Mrs Hofstetter’s] dismissal from Brent raises a concern about their approach to openness and honesty, which could have adverse consequences for the placement of a child for adoption.”

[74]It was that expression of their conclusion and reasons that was provided to the Claimants in a one page document entitled “IRM Review Panel Recommendation”.

[75]In my judgment, that summary of their reasons reflects their focus and is clearly justified by the account of the evidence before them and the earlier comments and conclusions under the headings I have mentioned. It is not flawed in any of the ways that the recommendation of the Adoption and Permanency Panel recommendation was or in any other way that has been asserted by the parties or identified by me.

[76]It is clearly within the range of recommendations open to an IRM review Panel that has properly directed itself and performed its task. Although it is not necessary for me to do so, because of the development of the argument in this case, I go further and record that in my view it is correct on the information before the IRM Review Panel and the court.

[77]In that context I record that in my judgment: i) the need for openness and honesty: a) should not be treated as a mantra, b) should be applied sensibly by reference to the nature and relevance of what is said not to have been disclosed and the discussions relating to that which naturally include the reasons why the material was not disclosed and the reactions of both sides to the issue when it is raised, c) is a two way street, and d) raises issues of judgment, ii) when an issue of non-disclosure, or any other point relating to the passing of information between, or the relationship between, prospective adopters and relevant Agencies arises: a) the manner in which it is dealt with by both sides in that two way street is informative, and b) an approach that assumes that, or tends to treat, any non disclosure as significant and important should be avoided, iii) the primary importance of openness and honesty in respect of the adoption process (before and after adoption) relates to the point identified in the reasons given by the IRM Panel concerning the potential consequences for a child who is placed for adoption if his or her adopters do not identify, face up, deal with and appropriately disclose problems and difficulties relating to the upbringing of the child who is placed with them as a member of their family.

[78]Applying that approach here, and although I accept that some dismissals of a prospective adopter would be irrelevant: i) an approach where the prospective adopters do not err on the side of disclosure of what some may consider relevant triggers a need to address their thinking, ii) on any view this was not the approach taken by the Claimants to the Brent dismissal, although they did adopt it to the shoplifting caution if they thought that that would not appear on a police search. But if they thought that that would have so appeared its disclosure against that background would, it seems to me, highlight the need to consider disclosing other matters that were water under the bridge but which others might find relevant and which would not be so revealed, iii) the nature of the disputed allegations relied on by Brent for the dismissal looked at on the reasonable basis that it would be very unlikely that the underlying disputes could be resolved and that the perceptions of those involved a the time could be different, point to a conclusion that: a) the Claimants did realise, or should have realised, that the dismissal and the way in which they dealt with it were a part of their history that was relevant to the way in which they approached and dealt with adversity and difficulty and thus relevant to the adoption process, b) the non-disclosure of the dismissal is a powerful indication that a child placed with the Claimants would be at risk of them not dealing with issues relating to his or her upbringing if they involved factual issues that the Claimants disputed in an open way and in the basis that they made appropriate disclosure and sought appropriate help, and iv) the failure to refer to Mrs Hofstetter’s employment at Brent (albeit that other employment was also not included) is a strong factor in favour of a conclusion that the non-disclosure was deliberate, and v) the primary assertion made by the Claimants that they considered the dismissal and their case about it to be irrelevant and something they should not have to disclose and deal with also supports the view that its non-disclosure was deliberate and thus either a failure to understand why the Adoption Agency would consider its non-disclosure to be relevant, or a wish to hide it because they were of the view that the Adoption Agency would consider a dismissal on disputed grounds to be relevant and something that might lead to them not being approved as adopters.

[79]The June Decision Letter, which conveys the Final Decision to the Claimants is in the following terms:

“ I am writing to inform you that I have received the Independent Reviewing Mechanisms recommendation that your approval as adoptive parents is rescinded. I have considered the minutes of the panel and have made the decision to support this recommendation. I appreciate that this is a very painful decision for you both. I understand support is available from the Adopt UK Help Line (tel. 0870 770 0450 11 am to 4 pm). ”

[80]At that time the practice was that the Claimants were sent a copy of the IRM Review Panel’s recommendation and reasons for it by the IRM, but not the minutes of hearing before and the deliberations of the IRM Review Panel. I am not sure when this recommendation and reasons were sent to the Claimants, but no complaint was made that the Claimants did not have them when they received the June Decision Letter

The 2005 Regulations

[81]Regulations 3 and 4 cover the constitution of Adoption and Permanency Panels (Regulation 3) and IRM Review Panels (Regulation 4). There are differences which in part flow from the point that IRM Review Panels are constituted on an ad hoc basis by persons chosen for their skills and experience. Provisions aimed at ensuring that the IRM Review Panels are independent are included.

[82]The functions of Adoption and Permanency Panels are set out in Regulations 18, 26 and 32 of the Regulations. The functions of the Agency Decision Maker are set out in Regulations 19, 27 and 33.

[83]For present purposes the most important Regulations are Regulations 27 and 29.

[84]Regulation 27 provides: “27 Adoption agency decision and notification.(1) The adoption agency must make a decision about whether the prospective adopter is suitable to adopt a child.

(2) No member of the adoption panel shall take part in any decision made by the adoption agency under paragraph (1).

(3) Where the adoption agency decides to approve the prospective adopter as suitable to adopt a child, it must notify him in writing of its decision.

(4) Where the adoption agency considers that the prospective adopter is not suitable to adopt a child, it must - (a) notify the prospective adopter in writing that it proposes not to approve him as suitable to adopt a child (“ qualifying determination ”); (b) send with that notification its reasons together with a copy of the recommendation of the adoption panel if that recommendation is different; (c) advise the prospective adopter that within 40 working days beginning with the date on which the notification was sent he may - (i) submit any representations he wishes to make to the agency; or (ii) applied to the Secretary of State for a review by an independent review panel of the qualifying determination.

(5) If, within the period of 40 working days referred to in paragraph (4), the prospective adopter has not made any representations or applied to the Secretary of State for a review by an independent review panel, the adoption agency shall proceed to make its decision and shall notify the prospective adopter in writing of its decision together with the reasons for that decision.

(6) If, within the period of 40 working days referred to in paragraph (4), the adoption agency receives further representations from the prospective adopter, it may refer the case together with all the relevant information to the adoption panel for further consideration.

(7) The adoption panel must consider any case referred to it under paragraph (6) and make a fresh recommendation to the adoption agency as to whether the prospective adopter is suitable to adopt a child.

(8) The adoption agency must make a decision on the case but - (a) if the case has been referred to the adoption panel under paragraph (6), the agency must make the decision only after taking into account the recommendations of the adoption panel may under both paragraph (7) and regulation 26; four (b) if the prospective adopter has applied to the Secretary of State for a review by an independent review panel of the qualifying determination, the agency must make the decision only after taking into account the recommendation of the independent review panel and the recommendation of the adoption panel may under regulation 26.

(9) As soon as possible after making its decision under paragraph (8), the adoption agency must notify the prospective adopter in writing of its decision stating its reasons for that decision if they do not consider the prospective adopter suitable to adopt a child, and of the adoption panel's recommendation under paragraph (7), if this is different from the agency's decision.

(10) In a case where an independent review panel has made a recommendation, the adoption agency shall send to the Section of State a copy of the notification referred to in paragraph (9).” (a) notify the prospective adopter in writing that it proposes not to approve him as suitable to adopt a child (“ qualifying determination ”); (b) send with that notification its reasons together with a copy of the recommendation of the adoption panel if that recommendation is different; (c) advise the prospective adopter that within 40 working days beginning with the date on which the notification was sent he may - (i) submit any representations he wishes to make to the agency; or (ii) applied to the Secretary of State for a review by an independent review panel of the qualifying determination. (a) if the case has been referred to the adoption panel under paragraph (6), the agency must make the decision only after taking into account the recommendations of the adoption panel may under both paragraph (7) and regulation 26; four (b) if the prospective adopter has applied to the Secretary of State for a review by an independent review panel of the qualifying determination, the agency must make the decision only after taking into account the recommendation of the independent review panel and the recommendation of the adoption panel may under regulation 26.

[85]Regulation 29 makes provision for the review of the approval of prospective adopters and provides that when such a review takes place the adoption agency must make a decision as to whether the prospective adopter continues to be suitable to adopt a child and that regulation 27 (2) to (10) applies in relation to that decision by the agency. So in this case Regulation 29 covered the steps taken by the Defendant Borough as the Adoption Agency and the consideration by the Adoption and Permanency Panel that led to the recommendation to rescind the approval of the Claimants.

The Guidance

[86]Paragraphs 55 to 58 of Chapter 2, paragraphs 58 to 63 of Chapter 3 and paragraphs 15 to 21 of Chapter 4 give guidance on the functions of an Adoption and Permanency Panel. They show that its function is to make recommendations, and indicate that the rationale for having such panels is to ensure that decisions relating to adoption (and other important issues that the panels consider) are considered by a group of people with varied expertise and experience.

[87]The Agency Decision Maker is described in paragraph 69 of Chapter 3 as:

“ A senior person in the agency - such as the agency's adoption manager or assistant director - who is not a member of the panel that submitted the recommendation ”

Standard 14 also sets out the qualifications to be expected of the senior personnel of adoption agencies. The functions of that decision maker are covered in paragraphs 59 to 61 of Chapter 2, paragraphs 64 to 78 of Chapter 3 and paragraphs 22 to 28 of Chapter 4. They provide that the Agency Decision Maker must take into account certain matters (including the recommendation of the Adoption and Permanency Panel and the minutes of its meeting) and that: i) In respect of decisions whether a child should be placed for adoption and a prospective adopter is suitable to adopt a child, where the decision-maker is minded not to accept the adoption panel's recommendation, he should discuss this with another senior person in the agency who is not a member of the panel. The outcome of that discussion should be recorded on the child's case record or the prospective adopter’s case record (as appropriate). ii) Where the decision maker considers that the prospective adopter is suitable to adopt a child he must notify him in writing. Where the decision maker considers the prospective adopter is unsuitable, his written notification must include his reasons together with a copy of the recommendation of the adoption panel if that recommendation is different. iii) Where the prospective adopter has challenged the agency's qualifying determination, the decision maker is to make a final decision only after taking into account the recommendations of: * the adoption panel which made the original recommendation and the adoption panel which considered the prospective adopters’ representations, or * the independent review panel and the recommendation of the adoption panel which made the original recommendation as applicable.

[88]That express requirement to give reasons only applies when the decision maker considers that the prospective adopter is unsuitable. If the decision accords with the recommendation of the panel it is silent as to the manner in which reasons for such a decision are to be given and as to the provision of that recommendation to the prospective adopter. The provision as to discussing matters with another senior person is not repeated in all parts of the Guidance if the decision maker disagrees with a recommendation. But I agree with the Secretary of State that it is implicit when such disagreement arises with the latest recommendation.

Published material relating to the IRM Review Panels

[89]In the White Paper, Adoption - a new approach, Ministers made a commitment to legislate for a review mechanism for assessments and to establish an independent review mechanism for prospective adopters whose adoption agency considered them unsuitable to adopt a child and did not propose to approve them. This led to the IRM which became operational in April 2004 in advance of the main body of the Adoption and Children Act 2002. There is no cost to the applicant applying to the IRM but the cost of a review is recovered from their adoption agency.

[90]Leaflets have been prepared which are directed to prospective adopters and to social workers to inform them about the IRM. The version of the leaflet in the evidence that describes the IRM contains the following passages:

“ So can the review panel make a new decision about my case? No. The review panel is not a higher appeals authority and it cannot overturn the adoption agency's determination. It can make a fresh recommendation to your agency on your suitability to adopt a child. Your agency must take that recommendation into consideration when making its final decision. The review panel will make its recommendation after it has considered [ and then a list of matters is set out ] Who will decide whether I am suitable to adopt a child? The decision rests with your adoption agency who must take the recommendation of the review panel and adoption panel into account when making its final decision on your suitability to adopt a child. What happens after the hearing? We will send you and your adoption agency a copy of the review panel's recommendation. This will be posted to you within 12 working days of the hearing date. Your adoption agency will then write to you informing you of its final decision. ”

This leaflet also contains questions and answers indicating that the IRM Review Panel is independent and about its procedure. After the hearing I was sent a more up to date leaflet which contains the following:

“How does the IRM process work? ---------------- The minutes of the adoption panel which considered the case are not included so that the Review panel can consider the case without being influenced by the thinking of the original panel but they will know the reasons for the original panel and decision-maker’s recommendation not to approve the applicants. How does the review panel work? ----------------- You and the agency representatives will be invited into the panel meeting together to answer the panel's questions. You will be given the opportunity to make your representations and will be asked questions by the panel. Agency representatives will then be invited to make any observations on the area of questioning and your responses at the end of the questioning. The panel will then put questions to the agency representatives and invite them to share any other information they want the panel to consider. At the end of this session you will be given the opportunity to comment on any information provided by the agency. What happens after the panel? A recommendation sheet with the panel's reasons is sent to both you and your adoption agency. The minutes of the review panel meeting are prepared and sent to you and to the agency's liaison officer within 12 working days of the panel meeting to assist in the decision-making process. Any discussion on 3rd party information will be removed from your copy of the minutes. Your adoption agency will write to you with their final decision and reasons on your suitability to adopt a child. This decision will be sent to you within 7 working days of the agency receiving the review panel's recommendation. In making the decision, your agency will have taken into account the recommendations and reasons of both the original adoption panel and the Review panel. ”

Who will decide whether I am suitable to adopt a child? What happens after the hearing? How does the review panel work?

What happens after the panel?

[91]A leaflet dated January 2006 and directed to social workers attending an IRM Review Panel contained the following:

“ What is the IRM? -------------------- A “qualifying determination” is a determination made by an adoption agency that it considers a prospective adopter is not suitable to adopt a child, and it does not propose to approve him/her as suitable to adopt a child. -------------- The IRM is not an appeal process. The review panels are not a court or tribunal. They will be able to review recommendations made by the adoption panels but the original adoption agency will make the final decision. ----------------- What happens after the panel? The minutes of the review panel meeting are prepared and sent to the agency liaison officer within 12 working days of the panel meeting. IRM panel minutes are not exempted from Data Protection so agencies will be asked for any amendments or feedback on the minutes. A recommendation sheet with the panel's reasons is sent to both the agency and the applicant. There will be a separate feedback form commenting on the agency's policy or procedures where these have featured in the panel discussion sent to the agency. ”

As appears elsewhere in this judgment the last part of that quotation applied at the time of the review in this case but the practice has now changed. There is now a leaflet dated April 2009 which repeats the answer to “What is the IRM” cited above but the answer to the question “What happens after the panel?” has been changed, and states:

“ What happens after the panel? A recommendation sheet with the panel's reasons is sent to both you and your adoption agency. The minutes of the review panel meeting are prepared and sent to you and to the agency's liaison officer within 12 working days of the panel meeting to assist in the decision-making process. Any discussion on 3rd party information will be removed from your copy of the minutes. There will be a separate feedback form sent to the adoption agency from the IRM panel commenting on policy, practice and procedures where these have featured in the panel discussion. The agency's decision maker should make their final decision having taken into account all the information made available during the IRM process and the recommendations of both the original panel and the IRM panel and write to the applicants within 7 days of receiving the IRM recommendation with their decision and the reasons for that decision.”

What happens after the panel?

Comment

[92]In my view, this material and the relevant regulations and guidance make good the points made by the Secretary of State that: i) the role of the Secretary of State is to establish an independent review panel and the recommendation it makes is a recommendation of the panel and not of the Secretary of State, ii) the IRM through its Review Panels was not intended to be an appeal process or authority. Rather it was intended to be part of a process that provided a second opinion from an independent panel of persons with relevant skill and experience, iii) its process was intended to be and is informal and non-adversarial, iv) the process of a review by an IRM Review Panel is triggered by a qualifying determination which is a “minded to decision” about which the prospective adopters can seek a second opinion from an IRM Review Panel, and v) the decision as to the suitability of the applicants as adopters is one for, and only for, the Adoption Agency to make.

[93]The potential for confusion in the minds of those who are not familiar with the relevant statutory framework, or who have not read or properly understood the relevant guidance and leaflets, is demonstrated by assertions made by Marion Ingram, the Acting Deputy Director of Safeguarding Social Care for the Defendant Borough, when she (presumably on advice) sets out in her evidence her understanding of the proper function of Panels and the Agency Decision Maker. In doing so she says:

“----------- In my view the IRM is akin to an appeal process and my role as an agency decision-making is to carefully consider the decision of the IRM and only in my view in exceptional circumstances will their decision not be ratified by me formally. ----------------I am clear that the role of the agency decision-maker in cases where matters have been to panel is to consider the decisions of the panel, consider the preceding decisions taken in respect of the case and decide whether or not to uphold the decision of the IRM.As set out below the role of the agency decision-maker is often to review and return to complex decisions and to approach cases and reviews with an open mind. ”

[94]I accept and acknowledge(a) that the language of that account should not be read as a statute or a regulation, and

(b) that the members of the relevant panels are chosen for their experience and expertise and so their conclusions are meant to and do carry considerable weight. But, in my view the references (a) to the IRM process being akin to an appeal, (b) to an approach that considers whether their decision should be upheld and

(c) to a view that it would only be in exceptional circumstances that it would not be ratified: i) demonstrate that she may have misunderstood the respective roles of the relevant panels and the Agency Decision Maker, ii) do not sit easily with her correct assertion that the Agency Decision Maker is to return to complex decisions and to approach cases and reviews with an open mind, and iii) provide “smoke for the fire of the argument” that it is unfair for the same decision maker to make the qualifying determination, and then the final decision after the completion of something that is regarded by that decision maker to being akin to an appeal process.

[95]So, to my mind rather than providing material to support the arguments advanced by the Defendant Borough as to the fairness of the same decision maker making both decisions this evidence undermines them and represents an aspect of the approach of the Defendant Borough that is troubling.

[96]This is because it is line with an approach that could give rise to the result that occurred in this case, namely that the decision maker missed flaws in the approach of the social workers and the Adoption and Permanency Panel. Mr Fallon in his evidence gives a general description of what he considered and discussed but does not deal with his view on such flaws. In my view, a proper recognition of his role as the decision maker and that it required him: i) to carefully and thoroughly examine and analyse the recommendation made by the Adoption and Permanency Panel, the report to the Adoption and Permanency Panel, the history of the case and the Claimants representations, and ii) to make up his own mind and thus identify in his own mind the reasons for his decision, should have alerted Mr Fallon to such flaws or the confused and confusing product of the investigations carried out.

[97]I accept that such an approach might well have led to Mr Fallon agreeing with the recommendation whilst recognising the flaws I have referred to. But this would have triggered the need for him to consider providing his reasons in contrast to the approach he took which was: i) to adopt the recommendation without comment and therefore, in my view, by necessary inference to adopt all the reasons of the Adoption and Permanency Panel, and ii) to fail to ensure that his decision letter enclosed a copy of those reasons, or that the Claimants could access them when they received his decision letter. Ground 3 (fairness), the proper functions of the panels and the agency decision maker and apparent bias

[98]I have already indicated my conclusions on these issues. I should however confirm them by reference to the key provisions that are to be found in Regulation 27 which applies to the decision making process relating to the rescission of the approval of the Claimants as adopters.

[99]In my judgment the language and structure of this Regulation and in particular: i) the use of the descriptions “qualifying determination” and “the decision in the case” in 27(4) and (8), ii) the structure of the Regulation which makes it clear that the “qualifying determination” is not determinative because there always has to a further decision (see 27(5) - if the prospective adopter does not submit further representations or apply for a review by an IRM Review Panel, and 27(8) - if the prospective adopters take one of those alternatives), and iii) the point that it is the Adoption Agency that makes the decision having considered the relevant recommendations support the conclusion that the stages after a qualifying determination are not appeals or properly classified as akin to appeals but are reviews that in the case of an IRM Review Panel equate to obtaining a second opinion in the form of a recommendation from an independent group of people with relevant experience and expertise.

[100]It is in that context that questions arise as to whether it is fair for the same Agency Decision Maker to make the decisions throughout the process, and whether this was a case of apparent bias.

[101]Both the Defendant Borough and the Secretary of State filed a body of evidence to the effect that: i) Agency Decision Makers were senior officers with appropriate experience and qualifications who approach decisions relating to the approval of persons as prospective adopters, and their review, with an open mind, and ii) it would be difficult, costly and impractical for there to be different decision makers at each stage, and gave other examples where this would, or might be the case, if different decision makers were required here.

[102]I do not doubt that generally point (i) is correct, but in my view it is likely to be present in many cases of apparent bias and therefore does not provide an answer.

[103]I accept the force of the points that, if in this case there should have been different decision makers, that would be the case in other decisions of the same type, could extend to all three decisions (the Approval, the First Decision and the Final Decision) and could have a wide impact on other decision making processes. That impact could have significant cost and other implications but, in my view, it does not of itself provide an answer to the question whether this decision making process, and others where it applies, are fair and free from apparent bias. However, the absence in its context of authority on such processes is to my mind an indication that those involved in them have not considered them unfair or affected by apparent bias. It is also an indicator of what the fair minded and informed observer would think of the processes.

[104]I invited Counsel to comment on the test for apparent bias approved by the Court of Appeal in R (PD) v West Midlands and North West Mental Health Tribunal

[2004] EWCA Civ 311

at paragraphs 6 and 8 of the judgment of Lord Phillips MR in the following terms:

“6. Silber J summarised the relevant principles to be deduced from recent authorities as follows: (a) in order to determine whether there was bias in a case where actual bias is not alleged “ the question is whether the fair-minded and informed observer, having considered the facts would conclude that there was a real possibility that the Tribunal was biased” (per Lord Hope of Craighead in Porter v Magill [2002] 2 AC 357 at 494[103]). It follows that this exercise entails consideration of all the relevant facts as “the court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased” (ibid [104]). (b) “Public perception of a possibility of unconscious bias is the key. It is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. What can confidently be said is that one is entitled to conclude that such an observer will adopt a balanced approach. This idea was succinctly expressed in Johnson v Johnson [2000] 200 CLR 488, 509 at paragraph 53 by Kirby J when he stated that “a reasonable member of the public is neither complacent nor unduly sensitive or suspicious”” (per Lord Steyn in Lawal v Northern Spirit Limited [2003] ICR 856, 862 [14]), (c) in ascertaining whether there is a case of unconscious bias, the court must look at the matter by examining other similar analogous situations. “One does not come to the issue with a clean slate; on the contrary, the issue of unconscious bias has cropped up in various contexts which may arguably throw light on the problem” (per Lord Steyn in Lawal v Northern Spirit Limited (supra), 862 [15]), (d) the approach of the court is that “one starts by identifying the circumstances which are said to give rise to bias – [a court] must concentrate on a systematic challenge and apply a principled approach to the facts on which it is called to rule” (per Lord Steyn in Lawal v Northern Spirit Limited (supra), 864-5 [20]), (e) the need for a Tribunal to be impartial and independent means that “it must also be impartial for (sic) an objective viewpoint, that is it must offer sufficient guarantees to exclude any legitimate doubt in this respect” (Findlay v United Kingdom (1997) 24 EHRR 221 at 224-5 and quoted with approval by Lord Bingham of Cornhill in R v Spear [2003] 1 AC 734 [8].” 8. We would endorse the judge’s summary of the relevant legal principles. We would add only this comment in relation to the judge’s statement that one must consider a case where unconscious bias is alleged by examining “other similar analogous situations”

. Lord Steyn stated that these “may arguably throw light on the problem”. The natural reaction of the lawyer to any problem is to look for case precedent and this is true even where the issue is essentially one of fact. In such circumstances precedent can be helpful in focusing the mind on the relevant issues and producing consistency of approach. In a case such as the present, however, the search is for the reaction of the fair-minded and informed observer. The court has to apply an objective assessment as to how such a person would react to the material facts. There is a danger when applying such a test that citation of authorities may cloud rather than clarify perception. The court must be careful when looking at case precedent not to permit it to drive common sense out of the window.” (a) in order to determine whether there was bias in a case where actual bias is not alleged “ the question is whether the fair-minded and informed observer, having considered the facts would conclude that there was a real possibility that the Tribunal was biased” (per Lord Hope of Craighead in Porter v Magill

[2002] 2 AC 357

at 494[103]). It follows that this exercise entails consideration of all the relevant facts as “the court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased” (ibid [104]). (b) “Public perception of a possibility of unconscious bias is the key. It is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. What can confidently be said is that one is entitled to conclude that such an observer will adopt a balanced approach. This idea was succinctly expressed in Johnson v Johnson

[2000] 200 CLR 488

, 509 at paragraph 53 by Kirby J when he stated that “a reasonable member of the public is neither complacent nor unduly sensitive or suspicious”” (per Lord Steyn in Lawal v Northern Spirit Limited

[2003] ICR 856

, 862 [14]), (c) in ascertaining whether there is a case of unconscious bias, the court must look at the matter by examining other similar analogous situations. “One does not come to the issue with a clean slate; on the contrary, the issue of unconscious bias has cropped up in various contexts which may arguably throw light on the problem” (per Lord Steyn in Lawal v Northern Spirit Limited (supra), 862 [15]), (d) the approach of the court is that “one starts by identifying the circumstances which are said to give rise to bias – [a court] must concentrate on a systematic challenge and apply a principled approach to the facts on which it is called to rule” (per Lord Steyn in Lawal v Northern Spirit Limited (supra), 864-5 [20]), (e) the need for a Tribunal to be impartial and independent means that “it must also be impartial for (sic) an objective viewpoint, that is it must offer sufficient guarantees to exclude any legitimate doubt in this respect” (Findlay v United Kingdom

(1997) 24 EHRR 221

at 224-5 and quoted with approval by Lord Bingham of Cornhill in R v Spear

[2003] 1 AC 734

[8].”

[105]Counsel referred me to other well known cases of high authority on the approach to be adopted but they accepted(a) that they are accurately reflected in that explanation of the principles, and

(b) the warning relating to reliance on analogous situations.

[106]Nonetheless, in my view correctly reliance was placed on the approach and conclusions of the Court of Appeal in Sengupta v Holmes

[2002] EWCA Civ 1104

. That case concerned the position of a judge who has refused permission to appeal on a paper application hearing the appeal. The issue was therefore whether the fair minded and informed observer would doubt the ability of the decision maker (there the refusing judge) to change his mind. It was decided that he would not and there was no apparent bias. Laws LJ said at [36]:

“--------- Absent special circumstances a readiness to change one’s mind upon some issue, whether upon new information or simply on further reflection, and to change it from a previously declared position, is a capacity possessed by anyone prepared and able to engage with the issue on a reasonable and intelligent basis. It is surely a commonplace of all the professions, indeed the experience of all thinking men”

[107]Although I do not accept that the position of an Agency Decision Maker on issues relating to the suitability of prospective adopters is a fortiori with that of the judge in the Sengupta case, I do accept: i) the force of the general comment made by Laws LJ, and ii) that on a correct understanding (which the fair minded and informed observer would have) and a proper application of the decision making process relating to the suitability of prospective adopters, that that general approach would cause the fair minded observer to conclude that the same Agency Decision Maker was able (and when he thought it appropriate willing) to change his mind in the light of a different recommendation, or without one on new information or simply on a reconsideration.

[108]So, in my judgment the decision making process relating to the suitability of prospective adopters is not unfair and does not give rise to there being apparent bias because it envisages or provides that one or more of the relevant decisions taken on behalf of the Adoption Agency will be, or can be, made by the same person

[109]Here the Agency Decision Maker did not disagree with any of the recommendations and so: i) no question of consulting a senior colleague arose, and ii) the complaint is that the Agency Decision Maker did not exercise his judgment to return to the result reflected in the Approval, and thus in this context (i.e. fairness / bias) that once he had made, and told the Claimants of, the First Decision he was not prepared to reach a different conclusion, or the fair minded and informed observer would conclude that it was a real possibility that he had a closed mind and would not do so.

[110]The Claimants have not, and in my view could not, establish: i) that if the IRM Review Panel had made a different recommendation (i.e. one that recommended that the Approval should not be rescinded) that Mr Fallon would not have accepted, or made a decision in line with that recommendation, or ii) that the fair mined and informed observer would think that there was a real possibility that whatever recommendation the IRM Review Panel made Mr Fallon would decide that the Approval should be rescinded. Further, the system would require him to give his own reasons (after consulting a senior colleague) for a decision that did not accord with the recommendation of the IRM Review Panel and this supports the view that the decision maker, Mr Fallon, was and would be perceived by the fair minded and informed observer as being someone who, at the end of the process, was prepared to reach a decision that the Approval should not be rescinded.

[111]Accordingly, in my judgment the Claimants have failed to establish any unfairness or any bias by reference to the decision making process generally or its application in this case. It follows that Ground (3) fails.

[112]The reality is that the Claimants dispute the underlying decision and think it is unfair to them rather than the fairness of the decision making process because Mr Fallon’s made the First and Final Decisions.

The Reasons Challenge

[113]This was a two pronged attack. Firstly, that there was a failure to give reasons or adequate reasons (Ground (4)). Secondly, and at the heart of the challenge in Grounds (1) and (2), is the assertion that the Agency Decision Maker failed to take into account relevant factors or gave undue weight to others (and thus generally that the decision was wrong and thus unfair to the Claimants).

[114]In my view, as the Agency Decision Maker was not departing from the recommendations of the relevant panels there was no general duty on him to give reasons in his own words (see R v Avon County Council ex p M

[1994] 2 FLR 1006

in particular at 1019-1020). This was applied in the context of a decision by an Adoption Agency to reject the recommendation of an IRM Review Panel in R(A, T & S) v London Borough of Newham

[2008] EWHC 2640 (Admin)

, it being held that in such a situation the decision maker must squarely address the recommendation, and the reasons for it, if it is not to be followed. This is an approach taken in many other fields.

[115]I agree and accept that: i) the reasoning underlying that approach and authority supports the view that if the decision maker is adopting the relevant recommendation(a) he can adopt the reasons for it, and

(b) he does not have to give reasons in his own words, and ii) where a decision maker supports, or makes a decision in accordance with, the relevant recommendation without expressing reasons for his decision he is implicitly adopting the reasons given by the relevant Panel (see by analogy R (Richardson) v North Yorks CC

[2004] 1 WLR 1920

at paragraph 35).

[116]As indicated earlier in this judgment, in my view when the decision maker takes this course he adopts all of those reasons as his own and is vulnerable to challenge if those reasons are flawed, or do not enable him to assert, for example, that the correct approach in law had been taken in reaching them (e.g. that all and only relevant factors have been taken into account).

[117]Although there was a failure in the case of the First Decision to ensure that the Claimants had a copy of the reasons for the recommendation made by the Adoption and Permanency Panel, in my view in respect of both the First and Final Decisions Mr Fallon. the Agency Decision Maker, was adopting: i) firstly all the reasons given by the Adoption and Permanency Panel as the reasons for the First Decision, and then ii) all the reasons given by the IRM Review Panel for the Final Decision.

[118]So, in my judgment Mr Fallon did give reasons by that approach and Ground (4) fails.

[119]As I have indicated in my judgment it is arguable that there are flaws in the approach and reasoning of the Adoption and Agency Panel and thus in the reasons that were adopted for the First Decision. As is made clear by the leaflets I have quoted from earlier, Mr Fallon, as the Agency Decision Maker, should have had regard, amongst other things, to the minutes, reasons and recommendation of the Adoption and Permanency Panel when making the Final Decision and so the question arises whether the flaws in them provide grounds of challenge to the Final Decision.

[120]In my judgment, in this case they do not because, in all the circumstances: i) the adoption of all the reasons of the IRM Panel for their recommendation without either additional comment, or reference to the reasons for earlier decisions based on earlier recommendations, meant that it was those reasons (and thus the approach and process taken by the IRM Review Panel to arrive at them) and not the reasons for or relating to the earlier “minded to” decision (i.e. the First Decision / the qualifying determination) that constitute the effective or determinative reasons and approach for the Final Decision, ii) so, where the approach and resultant reasons of the IRM Panel differ from that of the Adoption and Permanency Panel Mr Fallon adopted those of the IRM Review Panel, iii) the reasons given by the IRM Review Panel are short but clear, iv) the core of the reasoning mirrors the central point of the reasons that underlie the recommendation of the Adoption and Permanency Panel, v) as I have already indicated, in my judgment the approach, process, reasoning and recommendation of the IRM Review Panel are not flawed in any of the ways that the recommendation of the Adoption and Permanency Panel recommendation were, or in any other way that has been asserted by the parties or identified by me (see paragraph 75 hereof), and having regard to sub-paragraphs (i) to (iv) vi) any failure by Mr Fallon, the Agency Decision Maker, to recognise any such flaws in the decision making process of the Adoption and Permanency Panel is effectively overtaken and becomes irrelevant in the light of the approach, process, and recommendation of the IRM Review Panel and his adoption without more of their reasons (and thus their approach) to found the Final Decision.

[121]Turning back to the Grounds of challenge: i) the assertion (in Ground (1)) that Mr Fallon, the Agency Decision Maker, (or the Adoption and Permanency Panel) failed to consider, or to properly consider, the Approval is not made out (see paragraph 60 hereof), and ii) the assertion (in Ground (2)) that the Adoption and Permanency Panel (the IRM Review Panel and/or Mr Fallon) placed undue weight on the substantive reasons for Mrs Hofstetter’s dismissal is not made out (see paragraphs 61 and 76 to 78 hereof).

[122]It follows that Grounds(1) and

(2) also fail.

The procedural point raised by Collins J and my question A

[123]Collins J, when giving leave, raised the point that it might be procedurally unfair for the Claimants (the prospective adopters) to be absent when the social workers were being questioned by the IRM Panel. This was not covered in evidence or argument before me and it is clear that in this case it did not give rise to any unfairness.

[124]The practice has now changed so that the prospective adopters can attend the whole hearing (subject to special arrangements and directions to receive confidential information). I simply record, in the absence of any argument, that (subject to the qualification set out below relating to confidential information) it seems to me that that change is correct.

[125]It is also clear that the old practice underlying my question A did not give rise to any unfairness in this case. A significant amount of the evidence was directed to justifying that practice. The main focus of that evidence was on the effect of the Data Protection Act and the need for the redaction of confidential information. These lines of reasoning were not considered in any detail in argument because in the circumstances of this case there was no unfairness arising from the old practice and the practice has changed. I however record that on first impression I did not find that evidence convincing and did not think that it properly addressed, or provided a justification for, the approach taken here of giving the Defendant Borough, but not the Claimants, the opportunity to comment on and suggest corrections to the draft minutes.

[126]Again I record that (subject to the qualification set out below relating to confidential information) the change which has the results that(a) neither party is given the opportunity to comment on the accuracy of the draft minutes, and

(b) the minutes (after they have been checked by IRM Panel members) are sent to both the prospective adopters and the Adoption Agency (subject to the redaction of confidential information from the version sent to the prospective adopters) seems to me to be correct.

[127]I include a qualification relating to the approach to obtaining, and the use of, confidential information in the process of determining the suitability of prospective adopters because: i) in my view, they have at least the potential for raising a number of points, ii) such points did not arise and were not argued here, and iii) I do not wish to be taken to be expressing a view on them.

General Comment

[128]Although this judicial review has failed to my mind it has raised points that merit further consideration by the Defendant Borough, other Adoption Agencies and the IRM.

[129]In particular it seems to me that consideration should be give to the following: i) steps being take to make it clear through the letters sent to prospective adopters what the respective roles of the relevant panels and the Agency Decision Maker are, ii) steps being taken to remind the Agency Decision Makers of their role and the rigour and care with which they should carry it out, and iii) steps being taken to ensure that as and when each decision is made the Agency Decision Maker is clear what his or her reasons for it are and that they are appropriately recorded and conveyed to the prospective adopters.

[130]The last point is important and follows on from the earlier ones, and from i) the points made in the leaflets I have referred to that(a) the consideration of the case by the Agency Decision Maker is not confined to the latest recommendation and thus the approach and process used by the relevant panel and its reasons based thereon, and

(b) the IRM Review Panel does not have the minutes of the earlier Adoption and Permanency Panel whereas the Agency Decision Maker does and should have regard to them and other matters, and ii) if the Agency Decision Maker simply adopts the reasons of a recommending panel it is at least arguable that he or she adopts any flaws in their process.

[131]It is unlikely that the reasons of the two Panels will be identical (but much more likely that they will, if they are the same, contain common and central factors) and inevitable that parts of their process, and what they consider and ask, will be different. The Agency Decision Maker therefore needs to consider carefully by reference to all the relevant material what his or her reasons are and the effect of simply adopting, without more, the latest recommendation and thus expressly or by necessary inference all the reasons for it. Also, in my view he or she needs to consider whether he or she agrees with the approach adopted by the relevant panels and so equivalent points to the issue concerning the divergent approach taken to the underlying reasons for Mrs Hofstetter’s dismissal.

[132]I appreciate that the Agency Decision Makers are very busy and the potential advantages both in saving time and resources, and in avoiding arguments based on differences of expression, that flow from them adopting the reasons for a recommendation. But in my view before that course is taken the Agency Decision Maker must consider with care, in the light if his or her role and the wider information he or she has, which of the reasons underlying the recommendations he or she is adopting and why this is the case.

[133]Perhaps particularly when, as here, the recommendation for the qualifying determination and the decision in the case are the same, I suggest that, with a view to ensuring that the Agency Decision Masker approaches the making of the decision in the case, and thus a reconsideration of the case, with an open mind, and as the decision maker, it would be a good discipline and appropriate for him or her to: i) list the material taken into account, ii) identify the key arguments on both sides, iii) ask whether he or she agrees with the process and approach of each of the relevant panels and is satisfied as to its fairness, and that both panels have properly addressed the arguments, iv) consider whether any information he or she has that was not before a relevant panel has an impact on its reasons or recommendation, v) identify the reasons given for the relevant recommendations that he or she does, or does not, wish to adopt, and vi) state(a) the adopted reasons by cross reference, repetition or otherwise and

(b) any further reasons for his or her decision, when informing the prospective adopters of that decision. This is a fact and issue sensitive exercise. But in my view it, or a similar approach, should assist the Agency Decision Maker to identify the issues, the factors that have to be weighed and importantly his or her reasons (rather than those of others) for the decision that he or she is charged with making as the Agency Decision Maker. Those reasons could then, as was done by the IRM Review Panel in this case, be stated shortly.