The duty to consult with parents

A High Court judicial review on the duty to consult cautions against the policy of local authorities to make unilateral decisions about children. Clare Ciborowska looks at the lessons to be learned.

The case of R (on the application of H) v Kingston Upon Hull City Council & KS, AS, SS, TS and FS (Interested Parties) [2013] EWHC 388 (Admin) 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 31 January 2013 and the second concerned a decision taken on 1 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 31 January 2013 to remove the children from the care of the paternal grandparents was unlawful but that the decision taken on 1 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 31 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 31 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 1 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 which commenced on 7 February 2013.

As the judge says, there have been no reported cases of JR proceedings 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 1 February 2013 there was little that could be done in the family court about the unlawful decision that was taken on 31 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 31 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 1 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.

Clare Ciborowska is a barrister at 1 Crown Office Row. She can be contacted by This email address is being protected from spambots. You need JavaScript enabled to view it.. This article first appeared in the UK Human Rights Blog.