R (on the application of H) v Kingston Upon Hull City Council KS, as, SS, TS and FS (Interested Parties)

Hearing dates: 22nd and 25th February 2013

I direct that pursuant to CPR PD 39A Para 6.1 no official shorthand note shall be taken of this judgment and copies of this approved judgment as handed down shall be treated as authentic

Introduction

In this judicial review claim the mother of two young children (who are the subject of interim care orders) seeks to impugn the decision of a local authority to remove those children from the care of a family member into foster care without (as she alleges) any consultation or judicial approval for that course. This raises important issues relating to the inter-relationship of two distinct areas of public law: on one side – administrative law; and on the other – public family law (in particular care proceedings).

Two distinct issues arise:

(1) 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)?

(2) What is the extent of the duty to consult when an interim care order is in force?

The short answer to the first question is a qualified "yes". The qualification is that judicial review only obtains when there is no other appropriate remedy. Such a claim may succeed when it is shown the local authority has acted unlawfully.

The short answer to the second question is that there is a duty to consult with relevant family members and others, but the weight to be attached to the views of those individuals is for the local authority to determine.

These two short answers will be more fully expanded upon in this judgment.

The local authority in this case asserts it was in the process of consultation when events overtook that, and it was compelled to take immediate action to remove the children into foster care without further ado. Consequently, there were two decisions (both of which are challenged by the mother):

(1) The decision by the local authority of 31 ^st January 2013 to remove both children from the residential care of their grandparents to foster care.

(2) The decision by the local authority of 1 ^st February 2013 to implement the decision of 31 ^st January 2013 forthwith.

As I shall come to explain I propose to grant declaratory relief to the mother that the decision of 31 ^st January 2013 was unlawful; but, the decision of 1 ^st February 2013 was lawful given the events of that day.

Summary of the Judicial Review Proceedings

The claim in this case is brought by a mother of two young children, who are the subject of interim care orders, against a decision made by the local authority to remove the children from the care of a the paternal grandparents, without any court approval for that course or consultation. The children were removed one day later following an incident where the father of the children is alleged to have made threats. An urgent application for permission to apply for judicial review was made to Mr Justice Holman sitting in the Administrative Court in London. He consulted with me (as I was also sitting in the Administrative Court – but in Leeds). He decided the case would be speedily listed before me. I simultaneously arranged for the care proceedings (then in the Family Proceedings Court) to be transferred to me sitting in the Family Division of the High Court. Both cases were listed before me at Leeds within 3 days. I heard submissions and granted permission to apply. I also continued the interim care order and made certain other consequential orders within the care proceedings. The full judicial review application was heard two days later in the Administrative Court (sitting in Hull) and two days thereafter I announced my decision in a short judgment. I decided I would grant declaratory relief to the mother against the local authority in that it had acted unlawfully in certain material respects. I indicated I would give my full reasons for that decision in a reserved judgment to be given later. The precise form of declaratory relief would await this judgment.

The child-centric aspects of this case have been covered in the meanwhile by decisions in the concurrent Family Division proceedings.

This judgment gives my full reasons for granting declaratory relief to the mother. The precise terms of the relief is set out at paragraph 72 of this judgment (infra).

Anonymity

I feel it is very important to camouflage the identities of the parties and other important players in this case as it concerns the welfare of infants whose case would ordinarily be heard in private family proceedings. I have already made an order in this case (heard in public) that the identities of the children and other family members are to remain anonymous. That order is to remain and I give a reminder that I would regard it as a serious contempt for it to be breached. The identities of the parties in the family proceedings are protected by operation of law.

I propose to divide this judgment in to the following sections for ease of reference:

(1) Introduction

(2) Summary of the Judicial Review Proceedings

(3) Anonymity

(4) The Facts

(5) The Law

(6) The Duty to Consult

(7) Discussion in relation to this case

(8) Conclusion

I shall set out the facts in this judgment in a way that camouflages the identity of the child and other parties. The precise facts of the case (and its ultimate resolution) will be covered in the family proceedings and not this court. I shall reveal enough to make the judgment intelligible. There is no harm by revealing the parties live in Hull and the relevant local authority under the Children Act 1989 is Kingston upon Hull City Council.

Dramatis Personae

I shall commence my distillation of the facts by setting out the dramatis personae:

Kingston upon Hull City Council – the local authority (LA)

TS and FS – male children born in 2008 and 2012 respectively (the children)

RH – the mother of TS and FS (mother)

SS – the father of TS and FS (father)

AS and KS – the paternal grandparents of TS and FS (the grandparents)

The children have been represented throughout these proceedings by their guardian appointed by CAFCASS. Neither she nor any of the individual social workers need to be named in this judgment. It is important that I record at an early stage of this judgment the fact that, although I am shall be critical of the decisions of social workers and the LA generally, I have absolutely no doubt they believed they were making decisions that were in the best interests of the children. The issue in this case has been whether those decisions were lawful.

The Facts

The Backdrop

For the purposes of this judgment I do not need to recite the detailed allegations made by the LA against the mother and father in respect of their poor upbringing of the children. The nature of the assertions may be gleaned from a viability assessment of the grandparents (infra). If proved there can be little doubt statutory intervention would be warranted. That will be for the family court to decide in due course. There is ample evidence to warrant a court making an interim care order for each child.

The children lived with their parents in Hull (the precise location and circumstances are irrelevant for this case). The involvement of the LA prior to December 2012 need not be set out. On 12 ^th December 2012 the LA commenced proceedings under section 31 of the Children Act 1989 in the Hull and Holderness Family Proceedings Court (FPC). The allegation was both parents had neglected the two children. The case was very much the sort of matter that would be well within the remit of the FPC. I very much doubt even the county court would have been troubled with this case (subject, of course, to any appellate proceedings) had the case followed a routine path.

The Family Proceedings Court

The application by the LA for an interim care order (ICO) was heard by the FPC on 18 ^th December 2012. The mother and father did not oppose the LA application. The issue for decision was where the children should live in the interim. In no circumstances was it to be with the parents. The LA was desirous of both children being placed in foster care. The parents felt their children should be placed with the grandparents – the paternal grandparents.

The FPC (composed of three Justices of the Peace) heard evidence from a social worker. Plainly, the FPC was concerned about the course proposed as the court requested reconsideration of the issue by the LA. After a short adjournment the LA indicated it would accept the children should be placed with the grandparents. It is pertinent to note the guardian of the children was not overly keen on the grandparents' involvement and sought a tight protective package if the boys should be placed with them.

The FPC decision

The FPC decision is of...