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Children: Public Law Update (November 2011)

John Tughan reviews the more important judgments affecting public law children work over recent months

John Tughan, barrister, 4 Paper Buildings


John Tughan
, barrister, 4 Paper Buildings

In this update I will consider: 

Re M (Children) [2011] EWCA Civ 1035
In an interesting and unusual case, Mr Justice Hedley (and then the Court of Appeal) were faced with applications for interim care orders in circumstances where the children were thriving at home.  The Court of Appeal in Re M (Children) [2011] EWCA Civ 1035 was dealing with a "single issue case". 

Thorpe LJ summarised the issue thus:

"[I]n July 1988 at the magistrates' court in Kent the father pleaded guilty to two offences of indecent assault, one against the older child aged nine the other against the younger child aged five.  For that he was given probation for three years with a condition of psychiatric treatment for 12 months. The probation order was discharged in February 1991."

The relationship of the parents commenced after February 1991 and the children who were the subject of the current proceedings had not been harmed by the conduct of their father or otherwise.  The marriage had fallen into difficulties and the parents sought couple counselling. During counselling the father revealed to the counsellor that the sexual relationship with the children of his first marriage was much more serious than had been realised.  That disclosure to the counsellor and subsequent revelations to Dr Freedman indicated that he was charged and sentenced in 1988 on a completely false basis.  His disclosure to the counsellor led to the convening by the relevant local authority of a child protection conference and, when the referral to Dr Freedman resulted in the even graver revelations, the children were made subject to a child protection plan.  The local authority sought parental responsibility in order that the children could be told, against the parental wishes, of the past offending of their father.  Mr Justice Hedley granted the orders.

One of the criticisms of Hedley J's judgment in support of the appeal was that he had candidly disclosed his personal views on the issue to be decided and that the consequence was a distortion of the balancing exercise conducted by the judge.  The Court of Appeal rejected the criticism, stating that it was plain that judges inevitably bring to any welfare decision their own predispositions, their own convictions, their own prejudices, all of which or most of which will be drawn from their life experience, both as a lawyer and as a human being, and such was the case with Hedley J. 

The Court of Appeal held that the judge was entitled to take into account the reality of the parents' separation of four years and the adoption of a regime within which the father would never have contact with the children except in the presence of another adult.  However, the judge was entitled to conclude that there was a continuing risk that could not be ignored and to grant the orders.

This was an unusual case and an unusual application.  The local authority care plan envisaged the passing of information to the children and no further interference with the familial arrangements.  The mechanism of the interim care orders was held to be proportionate to that aim. 

R (SA) v Kent County Council [2011] EWCA Civ 1303
In a case with important consequences for the responsibilities of local authorities to support the placement of children with their families, the Court of Appeal in R (SA) v Kent County Council [2011] EWCA Civ 1303 held that the child was still a looked after child following placement with her grandmother.

Ward  LJ defined the issue in this way:

"The legal issue in this appeal, to state it broadly, is whether the claimant, A, is a child being looked after the local authority as that phrase is defined in section 22 of the Act.  In the more precise terms posed by the local authority in its skeleton argument, it is "whether, as a matter of law, a child who is not the subject of an interim care order can be a looked after child where she goes to live with a relative in circumstances where the local authority is involved in setting up and funding the arrangement."  If A is "a looked after child", she (or her maternal grandmother with whom she is placed) would be entitled to a fostering allowance of £146 per week. The local authority contend that they are acting lawfully in paying her (or her grandmother) a kinship allowance of only £63 per week pursuant to section 17 of the Act on the basis that she is living with her grandmother under a private family arrangement."

The answer was that

"In the court below, Black J reluctantly directed herself in accordance with Re C and In re H that sections 23(2) and 23(6) contain two distinct routes by which a local authority fulfils its duty to provide accommodation for a child so that if the local authority place the child under section 23 (2) she remains looked after whereas if the local authority make arrangements about accommodation under section 23 (6), she does not. She also diligently directed herself in accordance with Southwark and concluded at [74] that the local authority had discharged its section 20(1) duty by a placement under section 23(2) rather than section 23(6). She was entitled to come to that conclusion for the reasons which she gave and with which I fully agree and which, therefore, brook no further discussion from me. It follows that this appeal must be dismissed."

Black J had made factual findings that pointed to the above legal conclusion. Those included that all discussions about A going to live with her grandmother were initiated by the local authority; that the arrangement for A to live with her grandmother arose from discussions with the social worker and not from discussions with A's mother; that the local authority's ongoing involvement in the placement was consistent with it being a placement in which the local authority had taken the lead; and that the local authority had never indicated to the grandmother that it would expect her to make financial provision for A without help from themselves.

Re S [2011] EWCA Civ 812
In Re S [2011] EWCA Civ 812 the Court of Appeal, including the President and Black LJ, decided an issue under section 38(6) of the Children Act 1989 of which all practitioners in this area of law should be aware. Indeed, the whole of the leading judgment of the President is relevant to the proper approach to such issues.  In particular, the President's emphasis on the case management powers of the court, his acceptance of the first instance's judge's approach to the management of the case (it was "impeccable") and the citation of the PLO in that regard will be important for all to take on board.
In dealing with the submission of the appellant that a parent had a right to an assessment of their choice rather than one commissioned by the local authority, Black LJ said:   

"...I am sure that this was not what the court intended. The President made that clear in the passage I have just quoted from Re J.  Still less is there a principle such as that for which [the Appellant] contends, namely that "parents must be given the chance to put forward a positive case to the judge determining the issue of whether a care order should be made". Such a principle is unworkable not least because, sadly, there are cases in which the parents are plainly not able to care for their children and in which no amount of assessment or evidence gathering will enable them to put forward a positive case."

Re H (Children) [2011] EWCA Civ 1009
In Re H (Children) [2011] EWCA Civ 1009 the Court of Appeal was dealing with an appeal by a mother against the dismissal of her application for an injunction under the Human Rights Act 1998.  In a classic and not uncommon situation of a judge seeking a change in the care plan of a local authority and the local authority resisting that change, the judge at first instance had considered the plan for removal to be in breach of the Article 8 rights of the child.  When the local authority pressed for the continuation of the interim care order this was granted by the court as the evidence established that she could not care for the child in the community.

The mother applied for an injunction preventing separation of mother and daughter.  The court refused the order on the grounds that there was no jurisdiction in the court.

By the time the case came before the Court of Appeal the jurisdiction to injunct the local authority pursuant to the Human Rights Act 1998 had been conceded and the case was left with the original judge to continue her case management.  

The court accepted the concession of the local authority in relation to jurisdiction and referred to the judgment of Hale LJ in the case of W [2001] EWCA Civ 757 and the Court of Appeal in Coventry City Council v PGO [2011] EWCA Civ 729 for the fact that there is "plainly"  jurisdiction.

John Tughan