John Adebayo Abolarin v Liverpool City Council
| Jurisdiction | England & Wales |
| Judge | Eyre |
| Judgment Date | 14 March 2018 |
| Neutral Citation | [2018] EWHC 319 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 March 2018 |
| Docket Number | Case No: CO/1005/2017 |
[2018] EWHC 319 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Manchester Civil Justice Centre
1 Bridge Street West
Manchester M60 9DJ
HIS HONOUR JUDGE Eyre QC
(sitting as a Judge of the High Court)
Case No: CO/1005/2017
The Queen on the Application of
Lorraine Mensah (instructed by Lei Dat & Baig) for the Claimant
Simon Vaughan (instructed by Alison McDonald) for the Defendant
Hearing dates: 5 th January 2018
His Honour Judge Eyre QC:
The Claimant had been approved as a foster carer by the Defendant since 2009. On 25 th November 2016 the Defendant informed the Claimant that having reviewed his suitability to be a foster carer it had decided not to continue that approval. That decision was taken in accordance with a recommendation from a fostering panel ("Panel B") which had met on 12 th October 2016. The recommendation from Panel B had been made following its review of a recommendation to the same effect from a panel ("Panel A") which had met on 19 th April 2016. The Claimant seeks quashing of the Defendant's decision on the basis that it was flawed by unfairness and irrationality. Permission was given by HH Judge Moulder (as she then was) on three grounds two of which concerned fairness with the other relating to rationality.
The Factual Background and the Statutory Provisions.
The Defendant had first approved the Claimant as a foster carer in early 2009 (the Claimant asserts that the approval was on 31 st March 2009 but there are also references in the papers to that approval having been on 25 th February 2009 or 5th March 2009 - the precise date does not matter for present purposes). At that stage the Claimant had been approved together with his wife, Joy. Sadly Mrs. Abolarin died on 9 th September 2013.
Following Mrs. Abolarin's death difficulties arose between the Claimant and the Defendant's Fostering Service and the service raised concerns as to the Claimant's continued suitability as a foster carer. Those concerns had been considered at a meeting of a fostering panel on 10 th June 2015. At that stage the Claimant's approval was continued. However, from the viewpoint of the Defendant's Fostering Service the problems did not resolve and on 18 th February 2016 a report was made recommending the termination of the Claimant's approval as a foster carer. That report was considered first by Panel A and led ultimately to the decision of 25 th November 2016.
The approval of foster carers and the termination of that approval is governed by the Fostering Services (England) Regulations 2011 ("the Regulations"). The constitution, membership, and meetings of the fostering panel are provided for thus by the material parts of Regulations 23 and 24.
23.'Constitution and membership of fostering panel
(1) The fostering service provider must maintain a list of persons who are considered by them to be suitable to be members of a fostering panel ("the central list"), including one or more social workers who have at least three years' relevant post-qualifying experience.
…
(4) Subject to paragraph (5), the fostering service provider must constitute one or more fostering panels, as necessary, to perform the functions of a fostering panel under these Regulations, and must appoint panel members including '
(i) a person to chair the panel who, in the case of any appointment made after 1st October 2011, must be independent of the fostering service provider, and
(ii) one or two persons who may act as chair if the person appointed to chair the panel is absent or that office is vacant ("the vice chairs")
from the persons on the central list.
…
(7) The fostering service provider must ensure that the fostering panel has sufficient members, and that individual members have between them the experience and expertise necessary, to effectively discharge the functions of the panel.
…
(10) For the purposes of this regulation and regulation 24 '
(a) a person is not independent of the fostering service provider if '
(i) they are currently approved by the fostering service provider as a foster parent,
(ii) in the case of a local authority fostering service, the person is an elected member of that local authority, or is employed by that local authority for the purposes of the fostering service or for the purposes of any of that local authority's functions relating to the protection or placement of children, or
(iii) in the case of a fostering agency, the person is employed by, or is a trustee of, that fostering agency,
24.'Meetings of fostering panel
(1) No business may be conducted by a fostering panel unless at least the following meet as the panel '
(i) either the person appointed to chair the panel or one of the vice chairs,
(ii) one member who is a social worker who has at least three years' relevant post-qualifying experience, and
(iii) three, or in the case of a fostering panel established under regulation 23(5) four, other members, and
where the chair is not present and the vice chair who is present is not independent of the fostering service provider, at least one of the other panel members must be independent of the fostering service provider.
It will be seen in due course that both Panel A and Panel B had a markedly higher proportion of independent members than was required under the Regulations.
Regulation 25 provides for the fostering panel to recommend to the local authority whether a particular person is or remains suitable to be a foster parent. By virtue of Regulation 27 a potential foster parent cannot be approved unless that person's application has been considered by a fostering panel and the fostering service provider has taken account of the recommendation of the fostering panel.
Regulation 28 sets out the provisions governing the review of the approval of foster parents. Such review must take place within a year of the first approval and thereafter (Regulation 28 (2)) whenever the fostering service provider considers it necessary "but at intervals of not more than a year". Regulation 28 (5) provides that the service's report must be provided to the fostering panel on the occasion of the first review and that it may be provided on subsequent reviews. Regulations 28 (7) and (10) provide as follows for a foster parent whose approval the fostering service provider proposes to terminate to have an opportunity for review by the fostering panel or an independent review panel operating under the aegis of the Secretary of State.
28.'Reviews and terminations of approval
…
(7) If, taking into account any recommendation made by the fostering panel, the fostering service provider are no longer satisfied that the foster parent or the foster parent's household continue to be suitable, … they must (subject to paragraph (8)) '
(a) give written notice to the foster parent that they propose to terminate, … the foster parent's approval (a "qualifying determination"), together with their reasons and a copy of any recommendation made by the fostering panel
…
(b) advise the foster parent that, within 28 days of the date of the qualifying determination, the foster parent may '
(i) submit any written representations that the foster parent wishes to make to the fostering service provider, or
(ii) apply to the Secretary of State for a review by an independent review panel of the qualifying determination.
…
(10) If, within the period referred to in paragraph (7)(b), the fostering service provider receive any written representations, they must '
(a) refer the case to the fostering panel for its consideration, and
(b) make their decision, taking into account any recommendation made by the fostering panel.
The report of 18 th February 2016 set out a number of concerns on the part of the Defendant's Fostering Service. Those concerns focused on the Claimant's ability to work in partnership with the Fostering Service. It was said that the Claimant had failed to be open with that service; that he had not been truthful to the social workers responsible for working with him; and that he had failed to show that he could work in partnership with the service. The report referred to a number of occasions when it was alleged that there had been such failures. These related to matters such as an alleged lack of openness on the Claimant's part about the gravity of his late wife's illness; about his relationship with his new wife and her pregnancy; and about arrangements being made for visitors to come to his home. The report referred to alleged incidents which had occurred both before the 2015 panel hearing and subsequently. In essence the thrust of the report was that there had been a failure to work in partnership with the Fostering Service and that the lack of openness and honesty which was said to have been evidenced in the period before the 2015 had continued since then.
The Claimant made a detailed written response to that report. That response ran to forty-seven pages. In the response the Claimant accepted that with hindsight he could have dealt some matters differently. However, he did not accept the accuracy of the allegations being made against him. In addition the Claimant contended that much of the report related to old matters which should be regarded as having been "dealt with before and previously laid to rest". The Claimant's position was that to the extent that the older matters were correct they should be regarded as having been considered at the earlier review (or indeed before that). As they had not resulted in the termination of his approval at that stage the Claimant contended that they should not be taken into account in deciding whether approval should be terminated in 2016. The position of the Fostering Service was that the previous incidents demonstrated a pattern of behaviour which had...
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