To decide or not to decide, that is the question

Dave Phillips and Naomi Madderson consider the impact of a case in which a local authority which removed two children subject to an interim care order was judicially reviewed.

Kingston upon Hull City Council obtained an interim care order in respect of two young children in December 2012. The justices of the family proceedings court granted the order on the basis of a plan that the local authority would place the children with their paternal grandparents. During the interim period an assessment of the paternal grandparents' ability to offer care for the children was to be undertaken.

By 31 January 2013 the assessment of the paternal grandparents was completed. The view of the local authority was that the paternal grandparents were not able to offer appropriate care for the children. Therefore the local authority began to plan with a view to the children being placed in foster care. Pivotal to the decision of the judge in the case was the fact that the decision to remove the children from the care of the paternal grandparents was made on 31 January and that no consultation had been held with anyone outside the local authority prior to that decision being made.

The following day the parents, firstly the mother and then the father, were informed of the change in plan. The judge describes that meeting at paragraph 68 of the judgment as "a process of disseminating information about a decision that had already been made". The paternal grandparents were not a party to the proceedings. They were not given a copy of the assessment but were advised that the local authority would remove the children from their care. The father's alleged reaction led to an immediate removal of the children. That removal was deemed lawful by the learned judge but he was in no doubt that the actions of the local authority in reaching its decision before consultation had led to the problems which occurred on 1 February and the need to remove.

Does judicial review have a place in care proceedings?

In R (on the application of H) v Kingston upon Hull City Council [2013] EWHC 388 (Admin) issues which arose for determination by His Honour Judge Jeremy Richardson QC sitting in the administration division of the High Court related to, firstly, the use of the judicial review process to challenge decisions made by a local authority whilst s. 31 Children Act 1989 proceedings were ongoing and secondly, the issue of consultation by the local authority with family members and CAFCASS prior to decisions being taken in respect of the children for which the local authority shared parental responsibility.

The judge posed himself the following question: "Is it permissible to bring a judicial review challenge to a local authority decision when there are extant care proceedings (and an interim care order is in force)?" The short answer is a qualified "yes".

The longer answer appears at paragraph 56 of the judgment wherein the judge mentioned that counsel and he had not been able to find any reported case of judicial review proceedings in which an interim care order was in force. The judge went on to confirm the view of counsel 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."

The judge found that "there are limited – perhaps very limited circumstances – where an application can be made justly." In outline they appear to be as follows:

• Where the person affected by the decision is not a party and may not have grounds to intervene.
• Where the challenge is not to the grant of an ICO but to a decision by the local authority as to its implementation (the current case).
• Where the local authority refuses to accept judicial requests to amend its plans.

The judge pointed to the fact that the family court is limited to trying to exhort the local authority to change its view or to revoke the ICO.

In Re M (Care proceedings: Judicial review) [2003] EWHC 850 (Admin) the case related to an application for judicial review to prevent the issue of proceedings and therefore as the judge in the present case confirmed did not deal with the present dilemma of judicial review whilst care proceedings were ongoing. The judgment of Munby J dealt however with the use of judicial review in family proceedings and in doing so he referred to the judgment of Wilson J in the case of In Re C (Adoption: Religious Observance) [2002]1 FLR 119:

"Wilson J made it clear that where care proceedings are actually on foot an application for judicial review is normally a wholly inappropriate method of challenging the local authority's decision-making in relation to the child. Such issues can and should be resolved within the context of the care proceedings and by the court – whether the family proceedings court, the county court or the High Court – which is dealing with the care proceedings."

Munby J also refers to his own judgment in Re L (Care Proceedings: Human Rights  Claims) [2003] EWHC 665 (Fam), [2003] 2 FLR 160, in which he confirmed that the same principle applies to Human Rights Act 1998 applications and that it would only be in a "wholly exceptional case" that a freestanding human rights application should be made.

Has the decision in this current case broadened in any way the appropriate use of judicial review in Children Act proceedings?

Although in his judgment the judge referred specifically to the second issue being: "What is the extent of the duty to consult when an interim care order is in force?" it was not in fact argued on behalf of the local authority that the fact that an interim care order was in force reduced or affected its duty to consult.

The duty to consult had, as the learned judge relayed, been set out in "the expansive and helpful judgement of Munby J (as he then was) in Re G (Care: Challenge to Local Authority Decision) [2003] EWHC 551 (Fam). 

HHJ Richardson QC held that the following factors identified by Munby J should be given specific weight in the current case:

"(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."

Analysis

His Honour Judge Richardson QC stated that "[t]his case must not be seen as a vehicle for encouraging judicial review applications when ICO's are operational." Whether it is so seen will be clearer from subsequent applications. However the following points are worthy of consideration.

Prior to this decision the basis for a successful permission application appears to have been that the case is "wholly exceptional."

It was recognised by the judge that "[t]he administrative court is very alive to the concept of alternative remedy".

What makes this case "wholly exceptional", it appears, is that the judge found that the applicant had no alternative remedy because all the family court could do was either approve the removal or revoke the ICO's. It could not or would not have been able to adversely adjudicate on the decision which he found the local authority had taken unlawfully on 31 January 2013.

In any case where a local authority removes a child unlawfully at an interim stage of care proceedings it is likely surely that these circumstances will arise. It is clear from this judgment that the consultation process is a vital one which cannot be ignored. This secures the Article 6 and 8 rights of the parties (most likely the parents) are engaged.

The purpose of judicial review applications from the applicant's point of view is to quash whatever decision is made unlawfully to undo the 'wrong'. The judge makes it clear: "The practical side of events created by the unlawful decision has been handled by the family court [the judge was sitting in parallel jurisdiction]. This court is entitled to adjudicate upon the lawfulness of the original decision and had there been any meaningful way by which that decision could have been quashed I would have taken it."

From the wronged family's point of view is this process successful?

Is the administrative court in any different position than the family court? In these circumstances it is surely likely to make only declaratory relief and leave decisions of a welfare nature to the family court seised of those matters.

On the other hand, local authorities will be anxious not to be found to be acting unlawfully and will not wish to be put to the expense (financial and resource) of judicial review proceedings.

What of the future?

We are likely to encounter a great deal more cases in which non-parents or carers with a clear interest in the local authority's decisions have no access to public funding. What is their recourse? Who is to make the court alive to issues when the local authority seeks to remove?

This decision is not a vehicle for encouraging judicial review but a timely (10 years on) reminder of the duty of local authorities to enter into meaningful consultation with all parties including non-parents who have a clear interest in decisions made, as set out in Re G.  It is also however a clear reminder that in all but the most urgent cases, removal from families (including connected carers) of children at an interim stage should not occur without family court ratification. In the absence of such ratification a judicial review application is likely.

The need for consultation: "When is a decision not a decision?"

The question for social work professionals arising from this judgment can be framed as: "when is a decision not a decision?" There must, the argument goes, come a time when a view is reached by professionals as to what needs to happen to best protect children. The child who divulges sexual abuse; the child who receives serious head injuries which are deemed to be non-accidental are more obvious cases but, on a less blatant level, in every case a point must be reached when the key social worker forms a view as to what is required. Is that a decision without consultation? It would be hoped that a consultation by means of discussing matters with parents would be obvious but as this case demonstrates that is not always so.

The case put on behalf of the local authority and rejected by the learned judge was that in essence the view had been formed by 31 January as to what needed to happen next in the case, and that following that point in time, it was accepted that consultation must take place. That was yet to happen and would have happened on 1 February, but for the father's reaction. Moreover, following consultation the plan would not have been put into effect until the court ratified the decision (a hearing was listed on 7 February 2013). That was not accepted by the learned judge and there were cogent reasons why he did not accept it.

The recordings of the process which took place on 31 January belied the contention that the local authority had not made a decision. It was clear that arrangements were made to obtain foster placements for the children and notes, which the judge criticised for their paucity and brevity, led to the view that the local authority was making a decision and putting that decision into effect without any consultation.

The conclusion of the judgment is that it is a reminder of the "need of all local authorities to consult meaningfully and not engage in unilateral decision–making."

 At a point when a change of care plan is deemed to be necessary, consultation must start with parents, relevant family members and, without exception, the children's guardian.  If any or all refuse to accept the change then the matter must be returned to the family court for a decision. Whilst delay may occur, for example, in obtaining alternative placements for the child, the local authority should not make any arrangements to put its new plans in force until consultation and, if necessary, a court order has been made.

Whilst there will be exceptional cases in which the local authority has no alternative but to remove immediately they will be rare.

The answer, it seems, to the question "When is a decision not a decision?" is when it is a "proposal subject to negotiation or debate."

Dave Phillips and Naomi Madderson are members of the child care team at 37 Park Square Chambers and appeared in this case.