Re K & Re R
| Jurisdiction | England & Wales |
| Judge | Moradifar |
| Judgment Date | 08 July 2022 |
| Neutral Citation | [2022] EWHC 1890 (Fam) |
| Court | Family Division |
| Docket Number | Case No: RG22C50069 & RG22C50057 |
In the matter of:
and
[2022] EWHC 1890 (Fam)
HHJ Moradifar
(SITTING AS A JUDGE OF THE HIGH COURT)
Case No: RG22C50069 & RG22C50057
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Re K
Edward Kirkwood (instructed by The Joint Legal Team) for the Applicant Local Authority
Polly Allison (instructed by Riz Khan of Barrett and Thomson Solicitors) for the first Respondent Mother
Ian Robertson (of Griffiths Robertson Solicitors) for the child through her guardian and Cafcass Legal
Re R
Edward Kirkwood (instructed by The Joint Legal Team) for the Applicant Local Authority
Andrew Bond (instructed by Sheila Dhanoya of MMA Solicitors) for the first Respondent Mother
Reena Ghai (of Reena Ghai Solicitors) for the second respondent behalf of the father.
Jasbinder Dail (of Rowberry Morris Solicitors) for the child through his guardian
Hearing dates: 8 July 2021
Approved Judgment
Introduction
I am concerned with two unrelated cases that involve a local authority accommodating and placing each of the mothers together with their young child in an unregulated residential family placement (“the placement”). In both cases the local authority applies to the court to sanction these placements through the exercise of its inherent jurisdiction or alternatively by directing the assessment of each child pursuant to s38(6) of the Children Act (1989) (the ‘Act’). Given the common issue to both cases, I have heard them sequentially.
The first case concerns K who is almost eight weeks old. She has lived with her mother all of her life. She is the subject of applications by the local authority for public law orders. The court made her the subject of an interim care order when it approved the local authority's interim care plan placing K and her mother is a residential unit where she and her mother would be assessed. Regrettably, following a serious incident in the placement, on 22 June 2022 it came to an abrupt end. The only available placement was an alternative residential placement where K and her mother reside to date.
On 28 June 2022, the case returned to court and questions were raised about the suitability of the placement. On further investigation, it transpired that the placement is not a registered or regulated placement and the matter was subsequently allocated to me. The local authority concedes that it should have made the necessary enquiries prior to the mother and child being placed there. However, it argues that this was the only available placement which ensured that K was not separated from her mother. The local authority has continued its searches of regulated placements and there are no immediate options available.
Pending the identification of a regulated placement, the local authority has applied to invoke the court's inherent jurisdiction by seeking the court's approval and authorisation for the continuing placement of K and her mother. Latterly, the local authority had applied in the alternative for directions for assessment of K pursuant to s 38(6) of the Children Act (1989). As its case has crystalised, the local authority's primary application is the latter of the two applications. The mother supports any mechanism through which her continuing care of K is assured and supports the local authority's applications. The guardian and Cafcass resist the applications. It is submitted on behalf K that it is an inappropriate use of the court's inherent jurisdiction or the statutory frame work to authorise an illegal placement where little is known about the suitability of the placement as a place of safety or as an assessment centre. It is further argued on behalf of K that this would be an inappropriate use of said provisions of the Act where the local authority has failed to demonstrate the unit's capacity to appropriately undertake an assessment. Subsequently, the guardian has been able to visit the placement and following the provision of further information, her position has softened but continues to argue that it would be contrary to general policy that the court should sanction a placement in the face of the relevant statutory frame work that otherwise renders the placement illegal.
The local authority now makes identical applications in the second case which concerns R who is eight weeks old. Following his birth, he and the mother have resided in the said placement after the mother gave her agreement to be accommodated pursuant to s20 of the said Act. Subsequently, on 13 May 2022, the local authority applied for public law orders in respect of R who was made the subject of an Interim Care Order on 19 May 2022.
The law
S4(2) of the Care Standards Act (2000) defines a residential family centre in England as any establishment where:
“…
(a) accommodation is provided for children and their parents;
(b) the parents' capacity to respond to the children's needs and to safeguard their welfare is monitored or assessed; and
(c) the parents are given such advice, guidance or counselling as is considered necessary.”
The Act requires the defined establishment including a residential family centre to be registered and s11 (and s26) of the said Act creates a criminal offence in this regard. Reg. 3 of the Residential Family Centres Regulation (2002) provides exemptions for some establishments by stating that:
“ Excepted establishments
3. For the purposes of the 2000 Act, an establishment is excepted from being a residential family centre if—
(a) it is a health service hospital, an independent hospital, an independent clinic or a care home;
(b) it is a hostel or a domestic violence refuge; or
(c) the main purpose of the establishment is to provide accommodation together with other services or facilities to adults, and the fact that those adults may be parents, or may be accompanied by their children, is incidental to the main purpose of the establishment.”
The inherent jurisdiction of this court is wide ranging and has stood the test time. It has been the subject of commentary and jurisprudence that has guided us over many decades. More recently, the courts have recognised the pressing need for authorisation of placing vulnerable children in unregulated or unregistered placements where they are likely to be deprived of their liberty. In so doing, the court has invoked its inherent jurisdiction to authorise such placements to safe guard the welfare of these vulnerable children. In Re M & N (Minors) [1990] 1 All ER 205 (at 537) Waite LJ defined the court's inherent jurisdiction as follows:
“ the prerogative jurisdiction has shown striking versatility throughout its long history in adapting its powers to the protective needs of children, encompassing all kinds of different situations. Although the jurisdiction is theoretically boundless, the courts have, nevertheless, found it necessary to set self-imposed limits upon its exercise, for the sake of clarity and consistency and of avoiding conflict between child welfare and other public advantages.”
Lord Donaldson MR in Re J (A Minor) (Wardship: Medical Treatment [1991] (Fam) 33 (41D) observed that;
‘The parents owe the child a duty to give or to withhold consent in the best interests of the child and without regard to their own interests.
The Court, when exercising the parens patriae jurisdiction, takes over the rights and duties of the parents, although this is not to say that the parents would be excluded from the decision making process. Nevertheless, in the end, responsibility for the decision, whether to give or withhold consent, is that of the Court alone’.
In Re M (Children) (Wardship: Jurisdiction and Powers) [2015] EWHC 1433 (Fam) The former President of the Family Division, Sir James Munby P. most helpfully stated that:
“32. This is not the occasion, and there is no need for me, to explore the range of circumstances in which it may be appropriate to make a child who is outside the jurisdiction a ward of court. I merely observe that cases such as this demonstrate the continuing need for a remedy which, despite its antiquity, has shown, is showing and must continue to show a remarkable adaptability to meet the ever emerging needs of an ever changing world. I add that the use of the jurisdiction in cases where the risk to a child is of harm of the type that would engage Articles 2 or 3 of the Convention – risk to life or risk of degrading or inhuman treatment – is surely unproblematic. So wardship is surely an appropriate remedy, even if the child has already left the jurisdiction, in cases where the fear is that a child has been taken abroad for the purposes of a forced marriage (as in Re KR and Re B) or so that she can be subjected to female genital mutilation or (as here) where the fear is that a child has been taken abroad to travel to a dangerous war-zone. There is no need for me to go any further, so I need not consider whether there are other kinds of situation where a child who is already abroad should be made a ward of court or whether wardship is an appropriate remedy where the risk to the child is of harm falling short of harm of the type that would engage Articles 2 or 3 of the Convention.
33. In the Tower Hamlets case, Hayden J recognised (para 11) that the relief he was being asked to grant arose in circumstances without recent precedent, but rightly saw that as no obstacle. He said (paras 57–58), and I entirely agree:
“57 The family court system, particularly the Family Division, is, and always has been, in my view, in the vanguard of change in life and society. Where there are changes in medicine or in technology or cultural change, so often they resonate first within the family. Here, the type of harm I have been asked to evaluate is a different facet of vulnerability for children than that which...
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