50. The adoption panel makes recommendations to the agency - and not decisions - in respect of the cases referred to it. It is the role of the agency to make a decision and for this purpose it is necessary for the agency to appoint a decision-maker.

51. From 1 September 2012 the agency will be prohibited from referring to the adoption panel those cases where, if the decision-maker were to decide that the child should be placed for adoption, the agency would be required to apply for a placement order. The agency will refer those particular cases directly to the decision-maker. The decision-maker will continue to consider recommendations from adoption panels in all other cases. The table in chapter two paragraph 64 sets out those cases that must be referred to the adoption panel for consideration and those which must be referred directly to the agency’s decision-maker. 

52. The agency’s decision maker is a senior person within the adoption agency. VAAs may also appoint a trustee or director. NMS 23.17 sets out the qualifications, knowledge and experience the decision maker must have. The person does not have direct management responsibility for the adoption panel, but has the authority to make decisions on the agency's behalf as to whether:

  • a child should be placed for adoption (AAR 19);
  • prospective adopters are suitable to adopt a child or continues to be suitable to adopt a child (AAR 27 and 29);
  • a child should be placed for adoption with particular prospective adopters (AAR 33); and
  • to disclose protected information about adults under section 61 of the Act and regulation 15 of the Disclosure of Adoption Information (Post-Commencement Adoptions) Regulations 2005 (AIR) when determining an application.

There may be more than one decision-maker in an agency. The decision-maker may not delegate their authority to another person.

53. In Hofstetter v LB Barnet and IRM [2009] EWCA 3282 (Admin) the court set out guidance for the way in which the decision-maker should approach a case. The court said that it would be good discipline and appropriate for the decision-maker to:

• list the materials taken into account in reaching the decision;
• identify key arguments;
• ask whether they agree with the process and approach of the relevant panel(s) and are satisfied as to its fairness and that the panel(s) has properly addressed the arguments;
• consider whether any additional information now available to them that was not before the panel has an impact on its reasons or recommendation;
• identify the reasons given for the relevant recommendation that they do or do not wish to adopt; and
• state (a) the adopted reasons by cross reference or otherwise and (b) any further reasons for their decision. 

54. Before making a considered and professional decision , the decision maker will need to consider:

  • the exercise of powers under section 1 of the Act;
  • all the information surrounding the case, including the reports submitted to the adoption panel;
  • that the author(s) of the reports comply with the ARRs;
  • the stability and permanence of the relationship of any couple under consideration (regulation 4 of the Suitability of Adopters Regulations 2005);
  • the recommendation and reasons of the adoption panel and the independent review panel; and
  • the final minutes of the adoption panel including any minutes from adjourned panel meetings and the independent review panel.

Where a case has not been referred to an adoption panel, references in this paragraph to the panel are not relevant. Where the decision-maker considers that they have insufficient information, or needs medical or legal advice, they should ask the agency to obtain the information/advice and the agency must comply with this request.
 
55. Where the decision-maker wishes to discuss a child’s case which has been referred directly to them for a decision under AAR 19.1A, the case cannot be referred informally to the adoption panel for advice.  The information and reports listed in AAR 17.2D are sensitive personal data. The first data protection principle states that personal data must be processed fairly and lawfully and, in particular, must not be processed unless at least one of the conditions in Schedule 2 of the Data Protection Act is met. And, in the case of sensitive personal data, at least one of the conditions in Schedule 3 also has to be met. The second data protection principle states that personal data can only be obtained for one or more specified and lawful purposes and may not be further processed in any manner incompatible with that purpose. As AAR 17.2 says the agency may not refer the child's case to the adoption panel, then the panel has no function under the AAR in relation to that case and so there is no lawful justification for the decision-maker to refer AAR 17.2D information to the panel. To do so would mean the agency would be in breach of AAR 17.2. Similarly, the panel would be in breach of AAR 17.2 if it did consider the case. The decision-maker may discuss the case with the agency adviser, medical issues with the medical adviser and seek legal advice (see paragraphs 7, 31 and 56). 

56. Where the decision-maker wishes to discuss any other case, for example because they are minded not to accept the recommendation of the adoption panel or independent review panel, they should speak to the agency adviser or medical adviser as applicable (see paragraphs 7, 31, 55 and AAR 19.2, AAR 27.2 and AAR 33.2). The outcome of any discussion, as well as the decision itself and its reasons must be recorded on the child’s and/or prospective adopters’ case record as applicable.

 57. The decision maker must make the decision within seven working days of receipt of the reports referred to in AAR 17.2D or, as applicable, the recommendation and final set of minutes of the adoption panel or independent review panel. The child’s parents or guardian and prospective adopter should be informed orally of the agency’s decision within two working days and written confirmation should be sent to them within five working days. Where the independent review panel has reviewed the case, a copy of the decision must be sent to the contract manager of the independent review mechanism (IRM) (see paragraph 61).

58. Where the decision maker makes a qualifying determination on the suitability of prospective adopters, the letter in chapter 3 must be used.