R (G) v Nottingham City Council - and - Nottingham University Hospitals NHS Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Munby |
| Judgment Date | 05 March 2008 |
| Neutral Citation | [2008] EWHC 400 (Admin) |
| Docket Number | Case No: CO/532/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 March 2008 |
[2008] EWHC 400 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Munby
Case No: CO/532/2008
Mr Ian Wise and Ms Caoilfhionn Gallagher (instructed by Bhatia Best) for the Claimant (G)
Mr David Lock and Ms Shona Rogers (instructed by Nottingham City Council, Legal Services) for the Defendant (local authority)
Ms Marina Wheeler (instructed by Mills & Reeve) for the Interested Party (hospital)
In the care proceedings
Ms Rachel Rowley (instructed by Nottingham City Council, Legal Services) for the Applicant (local authority)
Mr Brian Jubb (instructed by Bhatia Best) for the First Respondent (G)
Ms Maria Mulrennan (instructed by Jackson Quinn) for the Second Respondent (K)
Ms Beryl Gilead (instructed by Sheltons) for the Third Respondent (K's father)
Hearing date: 18 February 2008
This matter first came before me on 30 January 2008. Following that hearing I handed down judgment on 4 February 2008: R (G) v Nottingham City Council [2008] EWHC 152 (Admin).
The background
I shall not repeat what appears in that judgment, save to note that it touched on three distinct matters:
i) G's claim for judicial review;
ii) G's claim that she had been unlawfully separated from her baby, K; and
iii) the care proceedings in respect of K brought by the local authority.
So far as concerns the claim for judicial review, I set out (at paras [1]-[3]) the background to G's claim, identified (at para [6]) the essence of the claim as being G's complaint that the pathway plan which the local authority had prepared for her was so deficient and inadequate as to be unlawful, and indicated (at para [31]) that I had given directions in relation to the future conduct of the proceedings. Included in the order I made was a direction listing the matter before me on 18 February 2008 for a permission hearing, coupled with a direction that if permission was granted the substantive hearing would follow immediately.
So far as concerns G's claim that she had been unlawfully separated from K, I set out (at paras [8]-[13]) the events which had triggered this complaint, recorded (at para [14]) the local authority's concession that what had happened was unlawful, and explained (at paras [15]-[27]) why that concession was properly made.
So far as concerns the care proceedings I recorded (at para [28]) the intention of the local authority to commence care proceedings and, in a postscript, recorded (at paras [39]-[40]) how the care proceedings had been heard by His Honour Judge Inglis in the Nottingham County Court on 31 January 2008 and 1 February 2008 and how, on the latter date, those proceedings had culminated in the making by Judge Inglis of an interim care order. I should also record that those proceedings took place in private. But at the end of the hearing Judge Inglis approved the publication of a press release in the following terms:
“Under section 97 of the Children Act 1989 no person may publish material which is intended or likely to identify any child as being involved in proceedings under the Act. That provision of course applies in this case and nobody may publish such information.
There is information that the court is prepared to make public, provided that the restriction in section 97 as to anonymity is observed.
The court in these proceedings has not been concerned with the events which led to separation of [K] from his mother during the hours after his birth. Those events were considered in the High Court by Mr Justice Munby earlier this week.
The court in these proceedings is concerned with the welfare of [K].
The removal by court order of a child from the care of his mother soon after birth is a very grave step to take, and is to be taken only when the welfare of the child makes it necessary.
In this case the court has decided that the welfare of [K] requires that he lives in local authority foster care on an interim basis while further enquiries are made and assessments carried out. His mother will have frequent periods of contact with him each week.
When the further enquiries have been made the court expects to be in a better position later this year to make a decision about who should care for [K] and what part his mother and other members of his family should play in his future care.”
Events following 1 February 2008
G sought permission to appeal against the order which had been made by Judge Inglis. That application came before the Court of Appeal (Ward and Wall LJJ) on 7 February 2008. G was granted permission to appeal. Her appeal against the making of the interim care order was dismissed but the Court of Appeal varied other aspects of the order made by Judge Inglis so as to facilitate a viability assessment which the Court of Appeal directed pursuant to section 38(6) of the Children Act 1989. Section 38(6) provides so far as material that:
“Where the court makes an interim care order … it may give such directions (if any) as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child”.
The principles upon which that jurisdiction is to be exercised have been authoritatively expounded by the House of Lords in two cases: In re C (A Minor) (Interim Care Order: Residential Assessment) [1997] AC 489 and In re G (A Minor) (Interim Care Order: Residential Assessment) [2005] UKHL 68, [2006] 1 AC 576.
For reasons explained by Wall LJ in his judgment (see Re G [2008] EWCA Civ 86) the Court of Appeal transferred the care proceedings from the Nottingham County Court to the High Court and directed that the matter was to be listed before me on 18 February 2008 to consider, inter alia, whether or not I should direct a further assessment under section 38(6).
In the meantime matters had developed in relation to both G's original claim for judicial review and her claim that K had been unlawfully separated from her:
i) On 6 February 2008 the local authority produced what was described as a 'final draft' of a revised pathway plan for G.
ii) On 11 February 2008 G filed amended grounds in support of her claim for judicial review (a) alleging that the revised draft pathway plan dated 6 February 2008 was still so defective as to be unlawful and (b) seeking relief (including damages) in relation to her unlawful separation from K.
iii) On 14 February 2008 the local authority filed its acknowledgement of service and summary of the grounds on which G's claim was being resisted.
iv) In accordance with the directions I had given on 30 January 2008 the relevant NHS Trust had been joined as an interested party in the claim relating to G's allegedly unlawful separation from K. On 15 February 2008 the NHS Trust filed its acknowledgement of service.
Also on 15 February 2008 the viability assessment which had been directed by the Court of Appeal was filed. It recommended a residential assessment of G and K for four months at a well known institution in the South East at a total cost of some £63,500 with an additional cost of some £33,000 if K's father was also to be included as part of the assessment.
The hearing on 18 February 2008
Accordingly there came before me for hearing on 18 February 2008:
i) the judicial review proceedings, in accordance with the order I had made on 30 January 2008; and
ii) the care proceedings, in accordance with the order made by the Court of Appeal on 7 February 2008.
Separate counsel were instructed for the two sets of proceedings. In the judicial review proceedings G was represented by Mr Ian Wise and Ms Caoilfhionn Gallagher, the local authority by Mr David Lock and Ms Shona Rogers, and the NHS Trust by Ms Marina Wheeler. In the care proceedings the local authority was represented by Ms Rachel Rowley, G by Mr Brian Jubb, K (represented by his children's guardian) by Ms Maria Mulrennan and K's father by Ms Beryl Gilead. I am grateful to all counsel for their assistance.
By the end of the hearing agreement had been reached between all parties as to the orders I should be invited to make, both in the judicial review proceedings and also in the care proceedings. It is nonetheless important that I give a formal judgment explaining what happened and, more especially, why I made the orders I was invited to.
I do this not merely, as I commented at the end of the hearing, in the interests of transparency of the court process and because of the publicity the case has already attracted, but also for an important technical reason.
Amongst the orders I was invited to make in the judicial review proceedings were two declarations that the local authority had acted unlawfully. It was common ground that I should make those declarations, but it is fundamental that the court does not grant declarations by consent. If the court is to make a declaration the court has to be satisfied on the facts and as a matter of law that the declaration is one that ought properly to be made: see, for example, the judgment of Buckley LJ in Wallersteiner v Moir [1974] 1 WLR 991 at page 1029. I need, therefore, to explain why I was satisfied that I should make these declarations.
In what follows I shall deal separately with the judicial review proceedings and the care proceedings, as indeed I did on 18 February 2008.
The judicial review proceedings – the pathway plan
I consider first the claim insofar as it relates to the alleged deficiencies in G's pathway plan.
The relevant statutory scheme is...
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