Non-service of a Child’s Permanence Report is a Serious Irregularity, but an Appeal Succeeds Only if the Placement Order Was “Unjust” as a Result

1. Introduction

This appeal concerned a narrow but important procedural issue arising in public law care proceedings which culminated in care orders and placement orders under section 21 of the Adoption and Children Act 2002. Two parents (the appellants) argued that the local authority’s failure to serve the children’s child’s permanence reports (prepared under the Adoption Agencies Regulations 2005) before the placement orders were made was a serious procedural irregularity rendering the final hearing unfair.

The Court of Appeal accepted that the local authority had breached the case management directions requiring service, and held that the omission was indeed a serious procedural irregularity. The appeal nevertheless failed because the court found that the parents suffered no injustice: the material content of the permanence reports was already contained in other evidence served on all parties and before the trial judge.

2. Summary of the Judgment

• The local authority prepared child’s permanence reports for each child (lengthy Coram BAAF forms) and filed them on the portal in a confidential area accessible to the court but not to the parents’ representatives.
• Despite repeated directions that the reports be served on the parents, they were not served; the omission was not raised at the IRH or final hearing.
• The trial judge made care and placement orders after a two-day final hearing, finding the Children Act 1989 s.31 threshold satisfied and concluding that adoption was necessary and proportionate (the “nothing else will do” analysis).
• On appeal, the Court of Appeal held:
  • the non-service was a serious procedural irregularity (and compounded by breach of a court order);
  • but the placement orders were not “unjust” because no material information in the permanence reports was absent from other served evidence and the judgment did not rely on undisclosed content;
  • there is no rule that failure to serve permanence reports automatically vitiates placement orders;
  • the appeal was dismissed.
• Obiter: leaving blank the Appendix designed to capture parents’ views was “a mistake”; it matters for later readers, including adopters and the child as an adult.

3. Analysis

3.1 The statutory and procedural framework

The judgment distinguishes between (i) the adoption agency’s regulatory duties when considering adoption for a child and (ii) the court’s procedural requirements when determining a placement order application.

• Adoption Agencies Regulations 2005, reg 17 requires the adoption agency to prepare a child’s permanence report, including (among other matters) an analysis of options and why adoption is preferred (reg 17(1)(i)).
• The report feeds into the agency’s internal decision-making: submission to the adoption panel (reg 17(2C)/(2D) and reg 18) and the agency decision-maker’s decision (reg 19).
• In parallel, FPR 2010 r 14.11(2)–(3) requires a directed placement report to be filed, covering matters specified in PD 14C, Annex B. The court accepted that in practice the permanence report may function as (or replace) an Annex B report to avoid duplication.
• Appeals proceed on the basis that even where there is an error, the appellate court asks whether the decision was unjust because of it: CPR r 52.21(3).

3.2 Precedents cited and how they shaped the decision

(a) Re S-F (A Child) [2017] EWCA Civ 964

This was the central authority on the importance of permanence reports in placement proceedings. The Court of Appeal in the present case treated Re S-F as establishing that the permanence report and the agency decision-maker’s record are highly significant evidential documents: they contain the original, structured pros-and-cons analysis of realistic options and the social work reasoning behind seeking a placement order.

The judgment reaffirmed (from Re S-F) that it is “good practice” to file permanence reports and “poor practice” not to, because they record “in original form” the comparative welfare reasoning and the justification for “nothing else will do”.

However, the Court of Appeal drew a critical distinction: in Re S-F the trial judge lacked key evidential material and the evidence was described as “limited”. In T and F, by contrast, the court bundle contained extensive statements and analysis covering the same material points. Thus, Re S-F supported the characterisation of non-service as serious, but did not compel the conclusion that the outcome was unjust on the facts.

(b) Re V (Long-term Fostering or Adoption) [2013] EWCA Civ 913; Re B- S [2013] EWCA Civ 1146; Re B-S (Children) [2013] EWCA Civ 1146; Re G (A Child) [2013] EWCA Civ 965

These authorities supply the welfare-analysis architecture for adoption/placement decisions:

• Evidence must address all realistic options and analyse arguments for and against each (cited via Re B-S (Children) [2013] EWCA Civ 1146).
• The judge must undertake a global, holistic evaluation of options and a structured balancing exercise (cited via Re G (A Child) [2013] EWCA Civ 965).
• Judicial reasoning must be tied to evidence about the child and the realistic options (reinforced by references to Re V (Long-term Fostering or Adoption) [2013] EWCA Civ 913 and Re B- S [2013] EWCA Civ 1146).

In T and F, these cases were not used to heighten formalism for its own sake, but to test whether the non-served documents deprived the parents of the material needed to challenge the “nothing else will do” comparison. Because the served evidence already contained the requisite analysis, the court held the welfare-evaluation was not undermined.

(c) Re D (Children) [2015] EWCA Civ 749 and Re S (Vulnerable Party: Fairness of Proceedings) [2022] EWCA Civ 8

These cases framed the appellate test for procedural errors. The guardian relied on them to argue that not every procedural irregularity warrants overturning a decision. The Court of Appeal adopted the two-stage approach stated in Re S (Vulnerable Party: Fairness of Proceedings) [2022] EWCA Civ 8:

• Is there a serious procedural (or other) irregularity?
• If yes, was the decision unjust as a result?

Applying that approach, the court accepted seriousness (given repeated directions and the centrality of adoption decisions), but found no causative injustice.

3.3 Legal reasoning: why “serious” did not mean “fatal”

The Court of Appeal’s reasoning proceeded in a disciplined sequence:

1. Identify the error and its gravity: there was a clear failure to comply with case management orders requiring service; given the role of permanence reports, this was a serious irregularity. The court also rejected any suggestion that the parents’ lawyers’ failure to spot the omission “excused” it.
2. Apply the appellate threshold in CPR r 52.21(3): even a serious irregularity does not justify allowing an appeal unless it made the decision “unjust”.
3. Conduct a materiality audit: the court tested whether anything material in the permanence reports was absent from the served evidence (social work statements, welfare checklist analysis, options analysis, and the guardian’s report). The mother’s counsel could not identify any material content uniquely contained in the permanence reports.
4. Differentiate from cases where the report is indispensable: the court accepted that “in some cases” the permanence report will have to be in the bundle for the judge to perform the required holistic balancing exercise. But it is not a universal requirement where equivalent analysis is already before the court.
5. Maintain normative guidance without reversing outcomes unnecessarily: the court explicitly did not condone the error, warning that in different circumstances it could lead to a successful appeal and delay for the child.

3.4 Impact: what this changes (and what it does not)

(a) Practical implications for local authorities and case management

• Service directions matter: where a standard template direction is made (serve the permanence report and ADM decision, but exclude from the bundle unless requested), it must be complied with. Non-service is capable of grounding an appeal.
• Portal filing is not service: uploading to a confidential court-accessible area does not satisfy a direction to serve the parties’ representatives.
• Quality of the “parents’ views” record: although not determinative here, the court’s observation signals that leaving blank the section designed to capture parental wishes and feelings is a practice risk—both for regulatory compliance (reg 17(1)(d)) and for the long-term integrity of the child’s record.

(b) Implications for parents’ representatives and guardians

• Early detection and requests: the case demonstrates that a failure to request inclusion in the bundle (where the order requires a request) may not waive the breach, but it can become relevant to the later “unjustness” analysis because it bears on whether the omission deprived the party of material they lacked elsewhere.
• Focus on materiality on appeal: post-judgment challenges will likely succeed only where the appellant can identify (i) specific material in the permanence report not present elsewhere and (ii) how its absence affected the fairness of the hearing or the judicial analysis.

(c) Doctrinal impact

The judgment consolidates a procedural principle with practical bite: serious irregularity is not synonymous with automatic reversal. The court preserves the high importance of adoption decision-making (and the evidential value of permanence reports) while aligning remedies with outcome-based injustice. This approach is consistent with finality and the child’s need for timely permanence, without relaxing compliance expectations.

4. Complex Concepts Simplified

4.1 What is a “child’s permanence report”?

A structured report required by reg 17 of the Adoption Agencies Regulations 2005 when the adoption agency is considering adoption for a child. It assembles information about the child and family, health material, wishes and feelings, contact considerations, parenting capacity, a chronology, and—critically—an analysis of realistic permanence options and why adoption is preferred.

4.2 How is this different from an “Annex B report”?

An “Annex B report” refers to the report content required by FPR 2010 r 14.11 and PD 14C Annex B for placement applications. In practice (as accepted here), the permanence report may be used to satisfy Annex B requirements to avoid duplication, depending on case management directions.

4.3 What is a “placement order”?

An order under the Adoption and Children Act 2002 authorising a local authority to place a child for adoption. It is distinct from an adoption order: it authorises placement; adoption legally finalises the new parental status.

4.4 What does “unjust” mean in this appeal context?

Under CPR r 52.21(3), the Court of Appeal does not set aside a decision merely because there was an error. The appellant must show that the decision was unjust because of the serious irregularity—typically by demonstrating that the irregularity affected the fairness of the process or the reliability of the outcome (for example, by depriving a party of material evidence needed to test the case).

5. Conclusion

T and F (Placement Orders: Child's Permanence Reports) reaffirms the central evidential role of permanence reports in adoption-related decision-making, echoing Re S-F (A Child) [2017] EWCA Civ 964. It also clarifies the appellate consequence of procedural non-service: even where the failure is serious—particularly when it breaches an express court direction—an appeal will be dismissed unless the appellant can show that the placement decision was unjust as a result.

The judgment therefore delivers a dual message: strict compliance with service directions is required, but remedies on appeal remain anchored to demonstrable injustice rather than automatic nullification—an approach aimed at protecting both procedural fairness and the child’s need for timely, stable permanence.