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Local Authority Focus – July 2014

Sally Gore, barrister, of Fenners Chambers considers recent case law and other developments of particular significance to local authorities.

Sally Gore, barrister, Fenners Chambers

Sally Gore, barrister, Fenners Chambers

In this Focus I shall cover the following:

Judicial review

Some of the most significant developments in family law since the last 'Local Authority Focus' are, of course, the changes brought to bear by the Children and Families Act 2014.  For public law practitioners, section 15(1) of the Act, which inserts a new s.31(3A) into the Children Act represents a significant change in practice.  Essentially, a court considering whether to make a final care order in public law proceedings is required to consider the provisions in the care plan as to where a child will live, and the proposals for contact.  Any other details in the care plan are for the local authority.

Does this, therefore, leave a lacuna, where parents and those representing children have no judicial forum to challenge the remaining aspects of a care plan, some of which, for children with complex needs and histories, may be of some considerable importance?  What if, for example, a child's therapeutic needs are not adequately catered for in a care plan?

The obvious answer, and one that is frequently raised, albeit not always with great seriousness in care proceedings, is that judicial review would provide a remedy.  What, though, are the implications of the decision in R(H) v Kingston upon Hull City Council [2013] EWHC 388, in which  HHJ Richardson QC (sitting as a judge of the High Court) set out the circumstances in which the Administrative Court might be asked to intervene in a public law children case that is proceeding in the family court?  In that case, three potential scenarios were envisaged in which judicial review might be appropriate:

Whilst a challenge to aspects of a care plan was not envisaged as one of those scenarios, what underpins each of the examples given appears to be that parties can still resort to the Administrative Court when all other potential remedies have been exhausted.  In any event, HHJ Richardson QC was not intending this list to be exhaustive. 

Looked after children vs private foster placement

Remaining with the subject of judicial review, O (A Child) v Doncaster Metropolitan Borough Council [2014] EWHC 2309 (Admin) is a recent decision of the Administrative Court which considered whether a child, who was by this time 17 years of age, was a looked after child.  The claimant had been cared for by her maternal aunt and uncle under a residence order due to her mother's inability to care for her.  This arrangement broke down and the child went to live with a paternal aunt, known as TD.  There is some factual dispute as to what was said between the two aunts, and between TD and the local authority, but it is clear that the local authority had been involved in the claimant's change of placement from an early stage.  There had been several discussions between the local authority and TD about how the finances would be arranged, and TD had apparently told the local authority that she was unable to care for her niece without financial support from the local authority.

The local authority had chosen to characterise this as a private family arrangement rather than a local authority foster placement.  The judge relied largely on the local authority's own statements at the relevant times as they had repeatedly told TD that they regarded this as a private arrangement and any financial support therefore came from their s.17 budget.  A more cynical view could be that the local authority had the relevant case law, and particularly the decision in Southwark London Borough Council v D [2007] EWCA Civ 182 in mind at the time.

The court ultimately decided that this child was not looked after as she did not 'require accommodation' because TD had spoken to AB about possibly caring for her prior to the local authority becoming involved again.  It is very surprising that HHJ Heaton QC (sitting as a judge of the High Court) does not appear to have been referred to the cases of Southwark v D (above) and R (SA) v Kent County Council [2011] EWCA Civ 1303, both decisions of the Court of Appeal with similar facts to those in this case.  It was made clear by the Court of Appeal in the Southwark decision that the crucial question was the extent to which the local authority played a central role in facilitating the placement.  Notwithstanding that TD apparently indicated that she might wish to care for the claimant before the local authority became involved, the sheer number of meetings and level of correspondence between TD and the social worker involved may suggest that the local authority played a significant role in brokering this placement. 

The case of R (Collins) v Knowsley Metropolitan Borough Council [2008] EWHC (Admin) 2551, was not referred to in the judgment.  In that case, the claimant was already in her placement when the local authority became involved but this was a temporary placement and so she was still in need of accommodation. 

Re S (Children): costs on appeal

Local authorities have been understandably concerned at the decision of the Court of Appeal in Re S (Children) [2014] EWCA Civ 135 that the local authority should pay the costs of the appellant father's successful appeal.  The local authority concerned has obtained permission to take the costs point to the Supreme Court and a full hearing will take place in due course.

The appellant succeeded in the Court of Appeal because of deficits in the reasoning of the circuit judge who made final care and placement orders in respect of his daughter.  The local authority having conceded that the judgment was deficient, however, continued to resist the appeal.

In ordering that the unsuccessful local authority must pay the appellant's costs, the Court of Appeal distinguished the case of Re T (Children) [2012] UKSC 36.  Counsel for the father successfully argued that the principle that public policy considerations militate against any possible financial deterrent to an authority taxed with the responsibility of protecting children from pursuing proceedings was directed at first instance hearings and that in the case of an appeal, a parent should not be deterred from challenging decisions which have such a crucial impact on their relationship with their children.

The background to this case and the costs order being made against the local authority appear to be the result of two difficulties that often arise in appeals by parents against final orders.  Firstly, the local authority appears to have been candid enough to have conceded that the circuit judge had not provided an adequately reasoned judgment and yet it continued to resist the appeal; one might deduce from this that its reasons for doing so related to its own ongoing assessment of the child's needs, the wish to avoid any further delay in finalising her future placement, and the need for it to engage in some crystal ball-gazing to assess the prospects of the parent in question being able to successfully care for the child in the event that the case was remitted to the county court. 

The second difficulty that follows directly from the first is that it leads the local authority to conflate welfare issues with issues properly for consideration in an appeal.  Having recognized that the judgment itself was deficient, the local authority found itself in a truly invidious position.  However, it would be trite to point out that an appeal is an appeal and not a (re-)hearing of the case on welfare grounds.

The Court of Appeal, on the other hand, was clearly swayed by the powerful argument that parents in public law proceedings should not be deterred from pursuing appeals by mounting legal costs, particularly where, as here, the appeal itself clearly had merit.  It is surely right, therefore, that this conundrum should now be considered by the Supreme Court.

Delegation of social care functions

Since November 2013, all local authorities have had the power, under Part 1, Children and Young Persons Act 2008, to delegate certain of their functions in relation to looked after children and those leaving care to third-party providers.

The Government has recently published its response to the consultation on the draft Children and Young Persons Act 2008 (Relevant Care Functions) (England) Regulations 2014 which will allow local authorities to delegate almost all of their social care functions relating to children (with the exception of their functions as an adoption agency – unless to a registered adoption agency – and the functions of independent reviewing officers: s2(2) CYPA 2008). 

The significant change in the Government's response is the announcement that the extended range of functions can only be delegated to non-profit making organisations.  This followed 1,300 responses to the consultation, the majority of which were negative with the most common reason being given for objecting being the possibility of 'privatisation' or 'profit-making' in children's services.  Unsurprisingly, respondents perceived a potential conflict between the imperative of making a profit and the protection of vulnerable children.

Concerns were also raised in the consultation about the potential loss of social worker expertise but the response points out that the 2008 Act requires delegated functions to be carried out by or under the supervision of a qualified social worker. 

Arguably the most valid concern, after that about profit-making, is that greater fragmentation of functions may lead to an increased risk of poor communication and a lack of information-sharing between different individuals and organisations.  The Government's response to this is incomplete, simply stating that:

"It is far from given that delegation would increase the numbers of such parties. We have heard plans to bring together a range of functions currently delivered separately within single structures."

The amended regulations will be laid before Parliament during the Summer, in which case the proposed changes could come into force as early as this Autumn.

Care proceedings and the Equality Act – guidance for local authorities

Re C [2014] EWCA Civ 128 concerned an appeal by both parents against care and placement orders made in respect of their 17-month old daughter.  In the event, all parties, including the local authority, had agreed that the appeal should be allowed.  However, in the circumstances of the case, McFarlane LJ felt it was necessary to give some general guidance with a view to preventing the difficulties in this case from arising again in the future.

The mother in this case was of Turkish Cypriot origin, had some cognitive impairment and speech and hearing difficulties.  The father was profoundly deaf and communicated using British Sign Language.  Certain aspects of how the father's disability in particular was dealt with during the early stages of the proceedings had given rise to concerns.  This included the reliance on the mother to communicate to the father the implications of agreeing for the child, A, to enter foster care under a s.20 agreement, notwithstanding her own known difficulties, and the limited time and limited interpretation given to the father when he was asked by the court to consider the threshold document over a lunchtime adjournment during a preliminary hearing.  During the course of the proceedings, a deaf psychologist and a deaf social worker had been instructed to report on the case and both had expressed concerns about the level of interpretation provided to the father at crucial stages in the case.  Finally, some four weeks before the final hearing was due to commence, the parties agreed to undertake a further parenting assessment of the parents.  Time and resources meant that this was a 'standard' parenting assessment conducted by a local authority social worker with the assistance of a British Sign Language interpreter.  Again, the experts instructed in the case voiced criticism that this approach to a parenting assessment did not take adequate account of the father's disability.

In respect of the mother, there was also consensus amongst the parties that her learning disability compounded by her hearing difficulty had not been given adequate consideration by the approach taken to assessing her during the proceedings.

The guidance given by McFarlane LJ in this case (which is adapted from that given by Baker J in Wiltshire Council v N and Ors [2013] EWHC 3502 (Fam)), may be distilled as follows:

i. It is the duty of those acting for parents with a hearing disability to identify this as a feature of the case at the earliest opportunity;

ii. It is the duty of those acting for parents with disabilities such as these, and the local authority, to draw the disabilities to the attention of the court when proceedings are issued;

iii. It should be a matter of course for the provision of expert advice on the impact of a deaf person's disability on the particular circumstances of the case to be considered at the case management hearing;

iv. The issue of funding needs to be grappled with at the earliest opportunity both before and during the case management hearing.

In relation to the provision of assistance for those with hearing impairments during the court and assessment process, McFarlane LJ also draws out the following:

i. It is essential that those involved in the court process, and particularly judges, understand that assistance for those with hearing impairments is not a process of 'translation' (as where a person speaks a different language); it is one of interpretation.

ii. There is a difference between British Sign Language which is an ordinary form of communication, and English Supported Sign Language, which is a different and far more structured, in grammatical terms, process. Different people from the population who have a hearing disability will use one or both or neither.

iii. Professionals should also be aware of the possibility of using Deaf Relay Interpretation.  A relay interpreter is a deaf person who acts as an "intermediary" between the qualified sign language interpreter and the deaf person. The purpose is for the Deaf Relay Interpreter to provide a specialist service and approach the communication with the deaf person from a deaf perspective, breaking down issues and providing, what one report we have read refers to as, "cultural brokerage".


We have recently recorded two podcasts by Sally Gore on Judicial Review for Children Lawyers and Kinship Care. These are available to all of our CPD subscribers. If you wish to listen to either podcast but do not have a subscription, you can take out a subscription here.