QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| JACINTA HOFSTETTER
|- and -
THE LONDON BOROUGH OF BARNET
|THE INDEPENDENT REVIEW MECHANISM
Hannah Markham (instructed by LBB Legal Dep) for the Defendant
Martin Chamberlain (instructed by The Treasury Solicitor) for the Interested Party
Hearing date: 30 October 2009
Draft judgment circulated: 16 December 2009
Crown Copyright ©
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.
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).
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.
The Grounds and the issues I invited the parties to address
" 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?"
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).
Background facts and discussion relating to them
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.
" 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 ---------------- "
" 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. "
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.
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."
" 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."
" 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."
" 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."
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.
"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)"
" 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 "
"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. "
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.
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.
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.
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.
" 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)."
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.
" 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."
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.
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.
" 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). "
The 2005 Regulations
"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 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
Published material relating to the IRM Review Panels
" 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. "
" 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."
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.
"----------- 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. "
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.
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.
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
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.
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.
"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  2 AC 357 at 494 ). 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 ).
(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  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  ICR 856, 862 ),
(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 ),
(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 ),
(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  1 AC 734 ."
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."
"--------- 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"
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.
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.
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.
The Reasons Challenge
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  1 WLR 1920 at paragraph 35).
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.
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.
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).
The procedural point raised by Collins J and my question A
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.
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.
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.
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.