Local authorities and the duty to consult with parents

16 April 2013 by

126415R (on the application of H) v Kingston Upon Hull City Council & KS, AS, SS, TS and FS (Interested Parties) [2013] EWHC 388 (Admin) read judgment

This was a successful claim for judicial review brought by a mother in care proceedings in respect of her two children who were removed from the care of the paternal grandparents. To that extent, it is a first. It concerns the duty on the Local Authority to consult with parents when an Interim Care Order is in place.

The claim raised two points. The first concerned whether it was permissible to bring a claim for JR when there were ongoing care proceedings and secondly the extent of the Local Authority’s duty to consult with parents when an ICO is in force. As to the latter point, there were two decisions that were challenged by the mother. The first was a decision taken on 31st January 2013 and the second concerned a decision taken on 1st February 2013 both concerning the placement of her children under the ICO.

HHJ Jeremy Richardson QC decided that it was right for the mother to bring the claim for JR and that the decision on 31st January 2013 to remove the children from the care of the paternal grandparents was unlawful but that the decision taken on 1st February 2013 was lawful given the events on the day. The judge therefore granted declaratory relief to the mother in respect of the decision taken on 31st January 2013.

Background

The LA’s case against the parents was one of neglect. At the first hearing for an Interim Care Order (ICO) in December 2012, the Family Proceedings Court (FPC) concluded that the children should not live with the parents. The FPC considered there was insufficient evidence to justify a decision not to place the children with the paternal grandparents as was the parents’ case.

The LA revised their care plan and an ICO was made with the children being placed with their paternal grandparents under Regulation 24(1) of the Care Planning Placement and Care Review (England) Regulations 2010/959 (2010 Regulations).

Thereafter the LA conducted a viability assessment of the grandparents which was negative and did not recommend that the children remain with their grandparents. On 31st January 2013 the LA’s position was that the children should be moved to an LA foster placement immediately due to the risks that, in the view of the LA, were posed by the paternal grandparents.

The parents were notified of the LA’s position at a meeting on 1st February 2013. The grandparents were not present. During that meeting it is alleged that the father made threats to kidnap the children. On that basis the LA sought to remove the children immediately. The children were removed from the grandparents at 2.30pm that afternoon.

Throughout this period there was no consultation with the Children’s Guardian.

Whether a claim can be brought

Following the children’s removal from the grandparents the parents issued a claim for Judicial Review (JR) which commenced on 7th February 2013.

As the judge says, there have been no reported cases of JR proceedings in concerning ICOs. Challenges to ICOs are ordinarily made during the course of care proceedings. The judge gave some examples of when it is appropriate to initiate a claim for JR:

Ordinarily, the Administrative Court will not countenance judicial review proceedings when there is an alternative remedy – especially so when that alternative is a judicial remedy. However, that does not mean that judicial review cannot apply to decisions made by local authorities whilst care proceedings are in train.

I am of the view that there are limited – perhaps very limited circumstances – where an application can be made justly.

This would be so when a person affected by a decision is not actually a party to the care proceedings and might not have a sufficiently good reason to be made an intervener in those proceedings.

It might equally apply where (as here) a party (the mother) does not wish to challenge the basis of the ICO, but merely a decision made by the LA as to its implementation.

It may be that a local authority has reached a conclusion in respect of which it refuses to alter (despite the request of the family court).

The Judge went on to find that a case for JR may be applicable during care proceedings but that instances will be rare. He felt that none of the parties in this case had an alternative remedy in the family court because by the time the emergency decision to remove the children was taken on 1st February 2013 there was little that could be done in the family court about the unlawful decision that was taken on 31st January 2013. All the family court could do was to either approve the removal or revoke the ICO’s.

Extent of the LA’s Duty to Consult

The judge was at pains in his judgment to emphasise the duty upon a Local Authority to consult with all affected parties before a decision is reached upon important aspects of the life of a child whilst an ICO is in force. Again, the judge provides some useful guidance as to whom the LA need consult which is summarised as:

  • The parents;
  • If capacity is in issue or there are safety issues or other genuinely powerful reasons not to embrace them then different considerations apply;
  • The Guardian (if appointed and available);
  • Any other family member who has a material interest in the children (which would include any family member who may be caring for the child or otherwise closely concerned with the child, such as grandparents who frequently step in to help.)

The judge then goes on to state, however, that:

The weight to be attached to the input of parents and others is for the local authority to judge – it may be no weight at all may be attached depending on the circumstances – but there needs to be consultation about fundamental decisions.

The judge acknowledged that:

…there will be decisions to be made in some cases where it is impossible to engage with parties or even to consult where the local authority must act speedily in the interests of child safety and protection

The judge’s clear view was that the LA should ensure a proper consultation process and simply cannot make unilateral decisions. In terms of when it is right and proper for the LA to return the matter to court when contemplating a change in living arrangements for the children, i.e. a change in care plan, the judge held, inter alia, that:

During the pre-final hearing stage (the interim phase of the case) the family court will be monitoring developments and where there is a fundamental disagreement as to an important decision, the parties need to have the issue adjudicated upon.

This is of critical importance where the court has made an ICO upon a particular premise and that is to be changed, and changed where there is no agreement.

Unless there a real need for an urgent decision (on proper grounds of child safety or protection) the family court should ordinarily be involved.

There must be proper consultation and judicial input when there is a contested proposal unless the LA needs to act speedily and without express approval if exceptional circumstances obtain.

The weight to be attached to the views of those consulted is a matter for the judgment of the local authority in whom trust for the management of the ICO has been reposed by the court.

In terms of this case, the judge held that:

The decision to remove (not a proposal) was made on 31st January 2013 in the absence of any consultation with the grandparents (who were actually looking after the children and in respect of whom the adverse report related), or the parents, or the guardian.

The judge further held that the meeting with the parents the day after the decision was not consultation at all. “It was a process of disseminating information about a decision that had already been made.” The judge felt unable to criticise the LA for acting in the manner in which they did when faced with the alleged threat made by the father of kidnapping the children.

The Law

The judge accepted that whilst the family court during the currency of an ICO is not required to consider the care plan as it is when final orders are made, a case should be restored before the family court speedily if the basis upon which the ICO was made or approved (whether an interim care plan or otherwise) is to be fundamentally altered and there is opposition to that course.

Conclusion

Ultimately this case serves as a warning to Local Authorities to ensure that if there is a ‘significant’ change in the care provided for the children which would have resulted form the decision, the LA is under a duty to have the case listed before the family court before acting upon it.

Much of the judgment focuses on the need for the LA to ensure that there is a proper consultation process in place and cautions against the policy of Local Authorities to make unilateral decisions about children. The Judge was firmly of the view that had the LA acted properly, the events of 1st February, when it is alleged the father made threats to kidnap the children, could have been avoided and thus would have obviated the need to remove the children from the grandparents’ care that day. The judge has made it clear that the decision to terminate the children’s placement with the grandparents or otherwise should have been one made by the court with the full information available and in consultation with the children’s guardian. The responsibility for the poor decision making, in HHJ Richardson’s judgement, rested solely with the Local Authority in this case.

So lawyers would do well to note that if decisions are made to place children under ICOs with alternative carers, rather than LA foster carers, then it would be prudent to record on the order in the preamble that the LA agrees not to change the children’s placement (or details of any other decision that has been agreed), save in the case of a genuine emergency, without first seeking the agreement of the other parties or returning the matter for consideration by the court.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Read more:

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability disclosure Discrimination disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Family life fatal accidents act Fertility FGM Finance fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Germany Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection hammerton v uk happy new year Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII hereditary disorder Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity India Indonesia Infrastructure Planning Committee inherited disease Inhuman and degrading treatment injunction Inquest Inquests insurance insurmountable obstacles intelligence services act intercept evidence interception interim remedies international international criminal court international law international treaty obligations internet internet service providers internship inuit investigation investigative duty in vitro fertilisation Iran Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Kerry McCarthy Kettling Kings College koran burning Labour Lady Hale LASPO Law Pod UK Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence limestone pavements lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome London Legal Walk London Probation Trust Lord Bingham Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Sumption Lord Taylor luftur rahman MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden paramountcy principle parental rights parenthood parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: