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“The driver cannot ignore the passengers”

 The judicial review case of H R v Kingston Upon Hull 2013  – where the Court found that a failure to consult with parents BEFORE making a decision to move children under an ICO was unlawful

 The case is here

 http://www.bailii.org/ew/cases/EWHC/Admin/2013/388.html

 This is, I think, the pivotal passage from the judgment (hence the title)  – underlining mine

 When an ICO is made the local authority and the parent share parental responsibility for the child – albeit the local authority is usually the one in the driving seat particularly when removal has been sanctioned. This plainly does not mean the parents or others are of little or no consequence. Although the local authority may be driving the vehicle, on a journey approved by the court, it does not mean it is able to ignore the views of the passengers as to the route to follow. There needs to be consultation; and concurrence (if possible). The consultation must be genuine and not merely a process whereby decisions are merely the subject of information to parents. I repeat a parent with parental responsibility does not surrender that when an ICO is made, nor when removal is permitted by the court. The weight to be attached to the views of parents and others is a different question. A local authority must always work in a carefully calibrated manner and act in a proportionate way commensurate with the issues involved and those involved… A sense of reality and a sense of proportion are key to the concept of consultation; however, consultation there must be, save in exceptional circumstances where child safety or other pressing reasons are present. I should also add that proper records are an essential aspect of consultation and decision-making.

In this case, the Local Authority had initially sought to remove the children from the parents, and at Court (as is often the way) a compromise was reached, whereby the parents agreed to an Interim Care Order if the children were placed with grandparents, and the LA agreed to place the children with grandparents. As often is the way with compromise, regrets followed.

 Thereafter, the LA had doubts about whether that was the right placement, and they conducted their fostering assessment, which became available on 30th January. This was very negative, and it considered that the grandparents attitude towards the concerns about the parents care was worrying. Sufficiently worrying for them to decide on 31st January that they would seek to move the children into foster care.

 They met with the parents on 1st February, and told them that this was the plan. The parents reacted badly, particularly the father, who said (inadvisably) that he would kidnap the children.

 The LA then moved the children, earlier than they had intended to.

 The parents made an application for judicial review, seeking to overturn two decisions :-

  1. That the decision on 31st January that the children would be moved was unreasonable, it having taken place without consultation
  2. That the decision on 1st February to move them forthwith was unreasonable

The parents triumphed on ground 1, but lost on ground 2  – the Court determining that the events of 1st February (although they had arisen purely because of the LA’s failure to properly consult) did legitimately give rise to a reason to implement a move.

 The LA had claimed that they had not MADE a decision on 31st January to move the children, but the Court rejected that.

  1.  I gave a short judgment announcing my decision in which I set out the following:

(1) The decision made by the LA on 31st January 2013 to remove the children was unlawful.

(2) The LA was the author of the very unhappy events of 1st February 2013 (the Riverside Incident); and, had they acted lawfully, those events may have been avoided.

(3) Having created that situation, as a result of that unlawful decision, the LA acted reasonably in taking the immediate action to remove the children during the afternoon of 1st February 2013. The LA are much to be criticised for creating the situation (due to an unlawful decision); but having created it, acted in a way that many other local authorities would have acted.

(4) The proposal to remove the children is one that would have received the support of the guardian providing appropriate planning had been undertaken (it was not). In consequence the children entered foster care in a rushed and unseemly manner. The guardian was not in fact consulted.

(5) At no stage did the decision of the LA have the approval of any court. The decision not to refer the case back to the FPC or any family court was unlawful.

 The Court placed quite a lot of emphasis on the LA not consulting with the Guardian (perhaps working on the basis of five years ago, when  all Guardians communicated much more regularly with social workers and would give a view on events) , and in this case the children were between Guardians, leaving responsibility solely with CAFCASS.  Nonetheless, this LA did not notify CAFCASS or the Court, or the child’s solicitor that a move was afoot.

 The Court summed up the human rights position in relation to interim care orders, and this is a helpful summary.  Underlining again mine, for emphasis.

  1. An interim care order is exactly what it says – interim; and does not bring in its wake all that flows from a final order. An ICO may only be made when a court is satisfied that there are reasonable grounds for believing the basis for making a care or supervision order are present. In short terms the full case for a care order does not have to be established – simply reasonable grounds for believing that position exists. A wholly separate question arises in many cases whether removal from the parent is justified. There is much Court of Appeal authority upon that which I have no intention of setting out, but essentially the court considering such a course must: (i) only do as much as is really necessary to secure the safety of a child; (ii) only decide what really needs to be decided at the interim stage (as the concept is purely to hold the ring until the full hearing); and (iii) only remove a child if it appears truly necessary to do so in the interests of the child’s safety.

The interim care proceedings are not a dress rehearsal for the final hearing. An ICO is an interim protective order and requires renewal from time to time under the present statutory arrangements. That does not mean regular reappraisal of the living arrangements, but it does mean the court is keeping a watchful eye on developments. The interim process of care proceedings is judicially controlled and the more so with the advent of recent family justice reforms. I feel it always needs to be remembered that the removal of any child from a parent is a very serious step that should never be made lightly. That similarly applies to the removal of a child from another family member to a foster carer. These observations are particularly significant when such a course is postulated prior to full investigation at a final hearing.

  1. There can be no doubt that Articles 6 and 8 of the European Convention on Fundamental Freedoms and Human Rights 1951 (the Convention) are engaged when an application for an ICO is made – and all the more so when removal is in issue. This issue was addressed by the Court of Appeal in Re S (Care Proceedings: Human Rights) [2010] EWCA Civ 1383 [2012] 2 FLR 2009, where Sir Nicholas Wall P (with whom Arden LJ and Wilson LJ, as he then was, agreed) said that a useful formulation of the test to be applied in questions of removal was: whether the removal or continued removal of the child from the care of his or her parent(s) is proportionate to the risk of harm to which he or she will be exposed if the child is allowed to remain or return to parental care [see paragraphs 8 and 9 of the judgment]. The articulation of the test by the President in Re S is a valuable lodestar for courts deciding whether an ICO should be made and removal countenanced. It will be understood that making an interim order when not all is known about the family dynamic is one of the most difficult decisions a family court is asked to make (particularly when removal of a child from a parent or other family member is proposed). There is a volume of Convention jurisprudence which emphasises the invasive and draconian nature of an ICO and removal of a child from the family.
  1. When an ICO is made the local authority and the parent share parental responsibility for the child – albeit the local authority is usually the one in the driving seat particularly when removal has been sanctioned. This plainly does not mean the parents or others are of little or no consequence. Although the local authority may be driving the vehicle, on a journey approved by the court, it does not mean it is able to ignore the views of the passengers as to the route to follow. There needs to be consultation; and concurrence (if possible). The consultation must be genuine and not merely a process whereby decisions are merely the subject of information to parents. I repeat a parent with parental responsibility does not surrender that when an ICO is made, nor when removal is permitted by the court. The weight to be attached to the views of parents and others is a different question. A local authority must always work in a carefully calibrated manner and act in a proportionate way commensurate with the issues involved and those involved. Calibration and proportionality are highly fact specific. The level and manner of consultation with one family will inevitably differ to that of another family depending on the issues and circumstances. The weight to be attached to the views of a father who murdered the mother of his child is likely to be rather less (if any) to be attached to the views of grandparents who are looking after a child in a difficult family situation. A sense of reality and a sense of proportion are key to the concept of consultation; however, consultation there must be, save in exceptional circumstances where child safety or other pressing reasons are present. I should also add that proper records are an essential aspect of consultation and decision-making.
  1. During the course of argument I was referred to the case of Re G (Care: Challenge to Local Authority Decision) [2003] EWHC 551 (Fam) which was a decision of Munby J (as he then was: now the President) involving a challenge to a decision of a local authority to remove a child from parents after a final care order was made. Munby J reviewed the convention cases and domestic law in a comprehensive judgment which has continuing relevance. He drew attention to the fact that social workers (in 2003 when the Human Rights Act 1998 was still in comparative infancy) needed to be more aware of its terms and import (see paragraph 3 of the judgment). Given the events of this case that is a paragraph that needs repetition. Let there be no misunderstanding: the convention applies to local authorities in respect of their decision making in care cases and all social workers need to be alive to its provisions and import; moreover they must apply the convention. The texture of decision-making needs to have the weave of the convention visible and palpable.
  1. In my judgment it is possible to distil the relevant law in the following way by reference to the expansive and helpful judgment of Munby J in Re G which has resonance today in this case. I particularly call attention to paragraphs 28 to 55 of the judgment which I say, with profound respect, were both learned and graphical – making it all the more readable. The distillation of relevant considerations applicable to the facts of this case are:

(1) It is always important (usually vital) for any decision-maker to consult with all relevant parties to be affected by the proposal before making the decision. The weight (or none) to be attached to the responses is a matter for the decision-maker providing the decision is legally rational.

(2) In the context of the removal of a child from a parent (and I would add any other family member) should not be countenanced unless and until there has been due and proper consultation and an opportunity to challenge the proposal.

(3) Article 8 not only provides substantive protection for parents and other family members, but requires procedural safeguards too.

(4) Article 8 is not something that applies simply to the judicial process, but to other decisions made by the local authority too.

  1. The passage of the judgment at paragraph 36 is apposite to this case:

“So Article 8 requires that parents are properly involved in the decision-making process not merely before the care proceedings are launched and during the period when care proceedings are on foot (the issue I was concerned with in Re L), but also —- after care proceedings have come to an end and whilst the local authority are implementing the care order.”

This is interesting – there are occasions, when representing a Local Authority that the concerns the LA have are so high that care proceedings are certain to be commenced. In those circumstances, it is traditional to send the Letter Before Action, making it plain that care proceedings will be commenced.  [Though of course, the parent is able to obtain legal advice and contest the ICO application]

Is the upshot of this judgment that it is unlawful to DECIDE to commence proceedings before consulting with the parent about this?   It seems to me that it probably is.    

The Court then went on to consider the interplay between interim care orders and judicial review – mindful that there is of course a remedy in the care proceedings (to challenge the ICO, or to appeal a court decision to continue it)

56. There have not been – in so far that counsel and I have been able to determine – any reported case of judicial review proceedings in relation to ICO’s. It was felt by counsel – and I am inclined to agree – that challenges whilst care proceedings are in train are usually made within the confines of the family court when an application to revoke the ICO is made or a renewal application is made. 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). All the family court can do is to exhort (it usually works – but it does not always) or revoke the ICO. The family court is not exercising the jurisdiction of the High Court in, the now infrequently used, wardship procedure where by the court makes all important decisions about all aspects of a child’s life as used to be the case. In my judgment the circumstances whereby judicial review is applicable whilst care proceedings are in progress (and there is an extant ICO) are likely to be rare and distinctly fact specific. The Administrative Court is very alive to the concept of an alternative remedy.

 

The Court also covered the duty to consult – and made it plain that there is a spectrum of consultation, not merely ‘agreement’ at one end, and ‘informing the parents of the decision’ at the other  – there has to be a genuine dialogue which allows for the potential for a parent or other interested party to bring something to the conversation which might result in a different outcome.

  1. I have made it clear that there is a 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. I have been shown the guidance issued by HM Government to local authorities in 2010 [The Children Act 1989 Guidance and Regulations] where there is valuable material available to social workers about how to approach their difficult task in this regard. Paragraph 1.5 provides (inter alia):

“Parents should be expected and enabled to retain their responsibilities and to remain closely involved as is consistent with their child’s welfare, even if that child cannot live at home either temporarily or permanently.”

Further:

“If children are to live apart form their family, both they and their parents should be given adequate information and helped to consider alternatives and contribute to the making of an informed choice about the most appropriate form of care.”

  1. Whilst it is not spelled-out quite as starkly as perhaps it should, there is contained therein a plain message that a local authority must consult and, in my judgment, that is even more crucial during the interim phase of proceedings when final decisions as to the threshold criteria and outcome have not been made by a court. The question as to whom the local authority needs to consult is distinctly fact specific. In my judgment that should ordinarily include 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. It should also embrace the guardian (if appointed and available). It should also embrace any other family member who has a material interest in the children. This would include a family member who may be caring for a child or otherwise closely concerned with the child. This frequently involves grandparents who step-in to help.
  1. 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. Moreover, the concept of consultation does not mean concurrence at one end of the spectrum; nor information at the other. The “others” who need to be consulted may have a valuable contribution that might alter the proposal of the local authority. It does not mean the parents and other parties must concur with the proposal before it can be implemented. There can be no veto or casting vote. Equally, the parents and other parties are not mere vassals to whom information is given and nothing more.
  1. It has to be 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. When this is done there must be clear reasons for this and the decision must be objectively reasonable and justifiable. Such a decision needs careful justification and calibration. A full note of the reason for such an exceptional course must be made.
  1. 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. The interim phase of care proceedings is now under even tighter judicial control than hitherto. I cannot emphasise enough the local authority is not allowed to act unilaterally upon important matters affecting a child in its interim care without proper consultation save in exceptional circumstances. There must be proper consultation and judicial input when there is a contested proposal. It must be equally emphasised that local authorities must 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.

 

Whether you represent a parent, or child, or Local Authority, this case has some important information, and reminders.  I think that most Local Authorities would have had the case before the Court before the children were removed, but conversely, that most would probably have made the DECISION that they intended to remove once that negative viability report arrived. This case reminds us that the duty to consult goes far deeper than simply telling the parents that a decision has been reached, but actually to be a genuine discussion about the situation and the options available PRIOR to a decision being reached.

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

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