England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		6 October 2010

1. MR JUSTICE HOLMAN: Before and during August 2009, two teenage children (who were unrelated to each other) were both being formally fostered by the Norfolk County Council with the claimant, Raymond Bewry. During August 2009, at his request, both children temporarily left his home and went to two different respite placements. However, at the time that those respite placements began the formal fostering with the claimant was continuing. He continued to be paid the appropriate fostering payments and he clearly fully expected that at the end of the respite period both of them would return to his home.

1. During that period, namely on Monday 17 August 2009, the Norfolk County Council held a meeting attended by seven of their staff. One purpose of that meeting was clearly to decide whether or not either or both the children should in fact return to the claimant at the end of the period of respite care, or whether new arrangements should be made for them to be placed elsewhere. The conclusion of that meeting was indeed that the fostering placements with him should be terminated, and they never returned to his care. He was not informed in advance that that meeting would take place, nor did anybody from, or on behalf of, the Norfolk County Council seek directly to ascertain from him his wishes and feelings with regard to the possible termination of the fostering placements shortly in advance of, or in preparation for, that meeting.
2. The sole issue that arises on this application for judicial review is whether the Norfolk County Council acted unlawfully and in breach of a duty upon them under section 22(4) of the Children Act 1989 in their failure to ascertain, or try to ascertain, his wishes and feelings regarding the matter to be decided at that meeting.
3. I wish to stress very strongly indeed that there is absolutely no question whatsoever of either of these children now returning to live with, or be fostered by, the claimant. I have given no consideration whatsoever, and express no view whatsoever, as to the appropriateness of any of the decisions that were actually taken at that meeting on 17 August 2009. One of the decisions was to suspend further foster placements with the claimant and, as I understand it, no further foster children have been placed with him since that date and his continuing status as a foster parent is still under investigation, consideration or review. I wish to make crystal clear that nothing whatsoever that I have considered today, or may express in this judgment, impacts one way or another on the suitability of this claimant as a foster parent, either historically for the children concerned or for any other children from now on.
4. The focus of this short hearing today has been, and the focus of this judgment is, very narrowly on the question whether there was a failure of consultation specifically in relation to the decision made at that meeting on 17 August 2009. That being so, I intend to summarise the facts relatively briefly. The Team Manager, Mr Graeme Malcolm, in his witness statement dated 23 June 2010, now at bundle pages 281 to 287, has set out a considerable and detailed chronology of some events between June and August 2009. In preparation for this hearing today, Miss Sarah Phillimore, who acts on a pro bono basis on behalf of the claimant, has prepared a chronology running to nine very closely typed pages and making detailed reference to many parts of the evidence and bundle. I wish to compliment Miss Phillimore on her very great and time consuming industry, especially in a case in which she acts pro bono, but, as I have made clear throughout the hearing today, there simply is not the time, nor in my view the need, to give detailed consideration to the very many twists and turns during the course of 2009, many of which are highly disputed as between these two parties.
5. The headline facts are as follows. The claimant is and was a single man who, in February 2006, became an approved foster carer for the Norfolk County Council. He was approved as a level 5 foster parent, which is the highest possible level, and was approved to foster more than one child on a full time or long term basis. He has in fact fostered a number of children on behalf of the Norfolk County Council. This case concerns two such children.
6. The first to be placed with him was RS. RS was born in August 1994. He was thus aged 14 when first placed with the claimant on a respite basis in February 2009. From about 6 March 2009 that placement became a continuous, and not merely a respite, placement. It follows that by mid August 2009 and the meeting to which I have referred, RS was just 15 and had by then lived continuously with the claimant for some 5 and a half months. The second child was SP. He was born in June 1993. He was first placed with the claimant in late May 2009. It thus follows in his case that he was aged 15, almost 16, when first placed. He had been in the continuous care of the claimant for some 2 and a half months by mid August 2009 and was aged 16 at the date of the August meeting and decision. Each of these children were being voluntarily accommodated by the local authority pursuant to the provisions of section 20 of the Children Act 1989, which meant of course that the parents of the respective children could have asked for their return at any time. Such a request never in fact arose.
7. Without immersing into the very detailed chronologies of either Mr Malcolm or Miss Phillimore to which I have referred, it is plain that difficulties and tensions arose in the relationship between the claimant on the one hand and social workers and other members of the Norfolk County Council on the other hand in the period from about May or June 2009 until August 2009, and I regret to say apparently continuing ever since.
8. The claimant has placed some emphasis on a document dated 21 April 2009 in which the Team Manager for RS, Janet Steed, records that RS was responding very well to the claimant's style of caring and that many of the behaviours which he was said previously to have exhibited had not been a problem in the placement. She noted that, in general, the claimant was working well with the young people placed with him; he gave a lot of support to RS and was also coping well with another child; he communicated well and appropriately with Janet Steed herself and used supervision well. It is sad indeed that that early optimism so rapidly dissolved into friction and dispute. The claimant says, but I have not investigated this at all, that it all went wrong as the result of him making a "whistle blowing" complaint in early May 2009 about the treatment by the local authority of certain unaccompanied asylum seeking children. However it arose, there were undoubtedly escalating problems in that, on various occasions, the claimant expressed his view that it would not be appropriate for him to have meetings with certain staff of the Norfolk County Council. They plainly felt that he was becoming increasingly difficult to deal with. His perspective is a very different one. I have not had any time to investigate that, but for the purposes of this hearing and my decision today I am prepared to accept that by August the perspective of the Norfolk County Council had become as described by Mr Malcolm, the Team Manager, in paragraphs 2 and 5 to 10 of his statement dated 23 June 2010, bundle pages 281 and 287 to 288. He says there:

"The decision to suspend further placements with Ray Bewry was made on 17 August 2009. This followed an alarming and, in my professional experience, wholly unheard of disengagement by Mr Bewry with my team and myself. We were very significantly alarmed by this ... Mr Bewry has not met any member of the fostering service to discuss either the concerns or day to day care arrangements since 9 June 2009 ... In my long professional years as a social worker I have never encountered such a deliberate pattern of non-engagement.

The council had entrusted the care of two vulnerable young people to Mr Bewry. These were medium term placements and the social workers involved had a duty to ensure Mr Bewry was providing appropriate care and support and that these placements remained in RS's and SP's best interests ... In as much as we should have sought Mr Bewry's views on a change of placement before removing SP and RS, this was, in reality, not possible, as the very reason for considering a change in placement was Mr Bewry's prolonged failure to communicate with us. How could we consult with him, if we could not even discuss RS and SP's day to day welfare and needs? ..."

9. Despite those concerns, the Norfolk County Council had not removed or sought to remove either of the children from the claimant prior to mid August 2009. In early August the claimant himself asked that the two children should spend a period of respite care and it was arranged that they would leave his home for that purpose on 11 August 2009, which they did. RS went to an alternative respite placement and SP went to a children's home. As I understand it, it is common ground that on the date when the children left the claimant, namely 11 August 2009, it was arranged and agreed or understood by him on the one hand, Norfolk County Council on the other hand, and indeed the boys themselves, that they were due to return, and would return, to the home of the claimant on 25 August 2009. Although he had arranged for this period of respite care, the claimant himself did not go away and, as I understand it, continued daily to reside at his home in Norwich during the whole of the material period.
10. About a week after the children had begun the respite care a meeting took place on Monday 17 August 2009 at the Social Services offices in Norwich. I mention that the claimant has sought to raise for consideration today whether the alleged meeting ever in fact took place or whether, indeed, the minutes to which I am about to refer are a fabricated and bogus account of a non-existent meeting. That is, of course, a matter of the utmost gravity, for it involves the suggestion that senior members of the Norfolk County Council have made untrue statements within, and for the purpose of, these proceedings and have fabricated records and documents. I wish to make crystal clear that I have given no thought or consideration whatsoever to that grave suggestion which could not possibly be the subject of adjudication in a conventional judicial review and without hearing oral evidence on some very precisely pleaded allegations. In all my consideration of this matter today, and for the purposes of this judgment, I absolutely accept without question that a meeting did take place on 17 August 2009, that the people referred to in the minute (with the manuscript addition of somebody called Suzie Thurlow) did attend, and that the purported minutes are a fair and reliable summary of what took place and what was decided.
11. Altogether, seven people attended. The meeting was chaired by Mr Shaun Burland, the Service Development Manager (fostering) and, as he says, a senior manager at Norfolk County Council. I do have to say that the statement of Mr Burland, dated 26 July 2010, is regrettably vague as to the genesis of this meeting and as to when precisely a decision was taken to call the meeting, and when the various participants were informed of the time, date and place of the meeting. I asked during the course of this morning that the representatives of the Norfolk County Council present here today should try and find out more information as to the genesis of the meeting and obtain (by fax or email) any available documents in relation to setting it up. I am sorry to say that those enquiries seem to have been largely negative. Apparently the various participants were contacted by unrecorded 'phone calls or emails, or maybe even arrangements were made face to face within the Social Services office, and I remain extremely vague as to any clear date on or by which it was decided to set it up; but it seems clearly to have been set up during the week ending Friday 14 August 2009. In any event, insofar as a central issue to be considered at the meeting was the question whether or not the children should return to the claimant after the period of respite care, that was not due to end until some time later on 25 August 2009, and I have not seen or heard anything to suggest that the meeting necessarily required to be held as early as 17 August 2009 rather than on some date a little later in that week.
12. The minutes record as follows:

"Shaun [Burland] explained the purpose of the meeting. Concerns have been raised regarding the care offered by Ray Bewry and an investigation under the concerns procedure is being carried out ..."

The minutes continue a little later:

"Further concerns have been expressed since the original investigative process began which have not yet been fully shared or discussed with Ray due to his apparent lack of cooperation ..."

I pause to mention that Miss Phillimore has, understandably, placed some emphasis on that sentence since it indicates that amongst the matters discussed at the meeting were "further concerns" which at that stage had not even been fully shared or discussed with the foster parent himself.

13. The minutes continue:

"Shaun has discussed these further concerns with the LADO and it is felt that there are good reasons to suspend further placements being made until the investigation has been completed and the matter has been discussed at a foster panel."

Pausing there, that passage is concerned solely with suspending further placements of other children than RS and SP and is not an aspect which is remotely under consideration by me. But the minute immediately continues:

"As the children [RS and SP] are not currently cared for by Ray it seems an appropriate time to consider whether it is in their best interests to return to Ray following their respite."

Pausing there, that seems to me clearly to identify that one of the two key matters for consideration at the meeting was a decision as to "whether it is in their best interests to return to Ray following their respite", so that was not a decision which had yet been reached collectively by the Norfolk County Council, even if the minds of some of the participants at the meeting had already been made up.

14. The minutes continue with a note of contributions made by various participants. It is right to record that the view was expressed that the then current respite placement in relation to RS was "going very well" and that continuation of that "placement would be more nurturing than the placement with Ray". However, the placement of SP in the children's home "is not doing so well. SP cannot stay [at the children's home] so a new placement would need to be found if he was not to return to Ray."
15. The minutes then contain a passage headed "summary" which reads as follows:

"There are significant concerns regarding the care Ray offers. These have not yet been discussed with Ray so a proper conclusion has not been reached. However, Ray has not been able to cooperate with understanding these concerns better. There are a number of issues raised that suggest that at the present time Ray is more focussed on his own issues rather than being able to focus on the needs of the children. The view of all present was that it would not be in the interests of the children to return to Ray ..."

Again, one notes from the first two sentences of that passage that some at any rate of the "significant concerns" had not yet been discussed with the claimant himself.

16. The minutes concluded with a number of "action points", including that Mr Burland would 'phone the claimant and inform him that RS and SP would not be returning after the period of respite. It is minuted that that would be done on Thursday 20 August 2009. It was indeed on that date that Mr Burland informed the claimant that the children would not be returning to him.
17. The claimant has a catalogue of complaints and grievances in relation to many aspects of this matter but, as I have been at pains to explain, I am concerned with only one, namely whether or not the local authority were in breach of a duty upon them in failing to ascertain or attempt to ascertain his wishes and feelings with regard to the matter to be decided at that meeting. It seems to me crystal clear from the minutes from which I have already quoted that one of the matters to be decided at that meeting was quite clearly "whether it is in their best interests to return to Ray following their respite".
18. There is authority, prior to the coming into force of the Children Act 1989, on the topic of the legitimate expectation of foster parents to be consulted in relation to major decisions about the termination of foster placements with them. See for example R v Hereford and Worcester County Council ex part D [1992] 1 FLR 448. This was a decision of Scott Baker J on 31 July 1991, but it seems to have concerned decisions made before the Children Act came into force and not governed by that Act, for, despite the reputation and distinction of the counsel involved, not to mention, if I may respectfully say so, of the judge himself, it appears that the Children Act 1989 was not even considered at the hearing. I draw from that judgment of Scott Baker J the general but very important proposition that:

"For my part, I cannot see that there is any general duty on a local authority to consult foster parents in every case where it is proposed to remove a child. The facts of placements vary infinitely from overnight to many years. Some placements are short term; some are long. Whether there is a duty to consult seems to me to turn on the facts of the particular case."

So, there was, and in my view still is, no general common law duty on a local authority to consult foster parents, and the approach to cases such as this was, and must surely remain, highly fact specific.

19. Since the Children Act came into force the relevant provision is section 22 of that Act. Mr John McKendrick, who appears on behalf of the Norfolk County Council, has emphasised, if it needs to be emphasised, that pursuant to section 22 (3):

"It shall be the duty of a local authority looking after any child - (a) to safeguard and promote his welfare ..."

But the essential provision for the present case is subsection (4) which provides as follows:

"Before making any decision with respect to a child whom they are looking after, or proposing to look after, a local authority shall, so far as is reasonably practicable, ascertain the wishes and feelings of -

(a) the child;

(b) his parents;

(c) any person who is not a parent of his but who has parental responsibility for him; and

(d) any other person whose wishes and feelings the authority consider to be relevant,

regarding the matter to be decided".

20. It needs to be firmly emphasised at once that there is no reference at all to foster parents in any of the specific categories identified in paragraphs (a) to (c). If Parliament had thought that there should be an automatic duty to consult (always so far as is reasonably practicable) with foster parents, then Parliament would no doubt have said so. So, in my view, the law remains as stated by Scott Baker J in the Hereford and Worcester County Council case, that there is no "general duty on a local authority to consult foster parents in every case where it is proposed to remove a child".
21. Plainly, however, a foster parent, being a person, is someone who may, on the facts and in the circumstances of a particular case, fall within the sub paragraph (d). In most cases, and certainly this case, the foster parent who has been, or is, currently actively involved in the life of a child is obviously somebody in relation to whom the local authority needs at least to pause and consider whether he might be a person whose wishes and feelings the authority should consider to be relevant regarding the matter to be decided. That is not at all to say that in every, or any given, case the local authority should go on actually to consider that the foster parent's wishes and feelings are relevant regarding the matter to be decided.
22. I regret to say that another area of obscurity in the evidence in this case, and in particular the statement of Mr Burland, is as to whether Mr Burland or the Norfolk County Council gave consideration at all to the question of whether they should consider the wishes and feelings of the claimant to be relevant regarding the matter to be decided, and went on to reach a decision that they did not consider his wishes and feelings to be relevant regarding the matter to be decided; or whether the meeting of 17 August 2009 was set up and ploughed ahead without Mr Burland or anyone else pausing even to consider whether the claimant was a person whose wishes and feelings they should consider to be relevant regarding the matter to be decided. In other words, I am, frankly, very unclear, even at the end of today, whether there was no express notification of the fact of the meeting to the claimant and no attempt to ascertain his wishes and feelings because the local authority reached a positive decision that his wishes and feelings were not relevant; or because they simply did not pause to consider at all whether he was a person whose wishes and feelings ought to be ascertained. At all events, they did not positively consider that he was a person whose wishes and feelings were relevant regarding the matter to be decided, and they did not directly and for the purposes of the meeting seek even to ascertain them.
23. This is a judicial review and I can only interfere if the failure of the local authority to consider the wishes and feelings of the claimant to be relevant regarding the matter to be decided amounted to a decision that no local authority, acting reasonably in discharge of their duties under section 22(4), could have reached. Mr McKendrick has urged that, on the facts and in the circumstances of this case, the question of any duty upon the local authority under section 22(4) needs to be considered in the context, not only of the overarching statutory duty under section 22(3), but also duties under regulations 33 and 36 of the Fostering Services Regulations 2002, Statutory Instrument 2002 number 57. Regulation 33 makes plain that an authority must not place a child with a foster parent unless it is satisfied not only that that is the most suitable way of performing its duty under the Act but also that a placement with the particular foster parent "is the most suitable placement having regard to all the circumstances". That is background, for these particular children by then had already been placed, but regulation 36 provides that:

"36(1) A responsible authority shall not allow the placement of a child with a particular person to continue if it appears to them that the placement is no longer the most suitable way of performing their duty under (as the case may be) section 22(3) or 61(1)(a) and (b) of the Act.

(2) Where it appears to an area authority that the continuation of a placement would be detrimental to the welfare of the child concerned, the area authority shall remove the child forthwith ...".

Clearly that regulation emphasises that, once it appears to a local authority that a placement is no longer "the most suitable way" of performing their duties under the Act, then they must not allow that placement to continue. This local authority had not reached that conclusion prior to the meeting on 17 August 2009, and indeed that was one of the very matters that fell for consideration at that meeting.

24. Paragraph (2) deals in my view with urgent or emergency situations. The test is the higher one that it appears to the authority "that the continuation of a placement would be detrimental to the welfare of the child concerned". In that situation the authority must remove the child "forthwith". But regulation 36(2) cannot have been in play at the material time on the facts and in the circumstances of this case. These children had left the home of the claimant on 11 August 2009. They were in entirely safe situations elsewhere and were not due back with him before 25 August. So, although I bear in mind in a general way those regulations upon which Mr McKendrick places reliance, it seems to me that my decision today has to be taken fairly and squarely by reference to section 22(4) of the Act itself.
25. It seems to me crystal clear that on 17 August 2009 the local authority did in fact make a "decision" with respect to children whom they were looking after. It is crystal clear that "the matter to be decided" was, in the language of the minutes, "whether it is in their best interests to return to Ray following their respite".
26. I pass over the question, much discussed by Charles J in a passage in his judgment in Re:P (Children Act 1989, sections 22 and 26; local authority compliance) [2000] 2 FLR 910, of whether the language and effect of section 22(4) is properly described as "mandatory" or "directory". I note that the context of that decision was not a judicial review but an application at the time of the making of care orders for some authority or imprimatur from the court to the local authority to the effect that they need not consult further with the father on the facts of that case. In his discussion of the distinction between "mandatory" and "directory" provisions, Charles J referred in particular to a distinction between situations where failure to comply renders the decision "void" or renders it "an irregularity" giving to the court a discretion whether or not to set aside the decision. As I have said, no question whatsoever arises today or in this judicial review of setting aside the decision reached in relation to these children at the meeting on 17 August 2009. So, I eschew any use of the words mandatory or directory, or any other adjective. I merely note that section 22(4) employs the word "shall" which, in my view, in turn imposes and defines a duty upon a local authority.
27. The duty is, so far as is reasonably practicable, to ascertain the wishes and feelings regarding the matter to be decided of "any other person whose wishes and feelings the authority consider to be relevant". So, the first question must be whether or not the local authority consider the wishes and feelings of the person in question to be relevant. As I have said, it is only if they reach a decision on that question that no reasonable local authority, acting reasonably, could have reached that their decision is reviewable.
28. Each of Mr McKendrick, in particular at paragraphs 55 and 64 of his most excellent outline submissions dated 30.9.10, and Miss Phillimore, in her opening submissions dated 5 October 2010, and by their respective oral submissions today, have identified and discussed various considerations that a local authority ought to take into account in situations such as this. As I have said, these cases are very fact specific. There is no statutory check list, and there can be no exhaustive list of considerations that require to be taken into account. But it seems to me that, on the facts and in the circumstances of the present case, the following considerations in particular were and are obvious ones. First, Mr Bewry was a fully recognised and registered foster carer who had been on the panel for some years at, as I have said, the highest level, level 5. Second, the placement of these children with him had not been on a short term basis. It does not seem to me to make much difference whether it was on a so called "medium" or "long term" basis. Either way, they had been placed with him for an indefinite period of time which was not anticipated to be a short one. RS had, by August, been with him for 5 and a half months, which is an appreciable period of time.
29. Next, Mr McKendrick himself has drawn from authorities that a relevant consideration is whether the foster carer has some material interest that would be directly and adversely affected by the decision. I have been told that the claimant was being paid at the rate of £450 per week in respect of each of these children, so the termination of the foster placements with him involved, from his perspective, the very direct pecuniary interest of loss of income of no less than £900 a week.
30. Next, Mr McKendrick has also drawn from authorities as a relevant factor "whether criticisms were made of the foster carer's behaviour". Well, plainly in this case the whole focus of the meeting was escalating concerns or criticisms of the behaviour of the claimant. It seems to me that the fact that there are a number of concerns or criticisms tends to increase, rather than diminish, the appropriateness of some consultation, for if there are concerns they need to be expressed and views obtained. As I have already said, there are two references in the minutes of 17 August 2009 to the fact that a number of the concerns had not yet even been shared or discussed with the claimant.
31. Mr McKendrick has identified also "the potential relevance of the foster carer's wishes and feelings" and submits, I think, that in a situation such as that facing Norfolk the wishes and feelings of the foster parent were of little or no relevance, since the overarching statutory duty of the local authority was to safeguard and promote the welfare of these children. Put in that bald way -- I am sure Mr McKendrick would put it in a much more sophisticated way -- the wishes and feelings of a foster parent could never be relevant.
32. Finally, Mr McKendrick identified as a factor "the willingness of the foster carer to communicate with the local authority". This seems to me to come close to the nub of this case. I have already quoted at length from the witness statement of Mr Malcolm in which he describes the growing exasperation of the Norfolk County Council at the apparent unwillingness, from their perspective, of the claimant to engage with them. The position seems to have been taken, as I understand it, that since the main focus of their concern was his unwillingness or failure to engage with them, there was really no point in trying further to ascertain his wishes and feelings.
33. It seems to me that that simply will not do. I fully understand from their perspective the growing exasperation of the Norfolk County Council. I have no idea what might have occurred if the claimant had been informed, for example by leaving a letter at his home, that the local authority proposed to hold a meeting to consider whether or not they should terminate the foster placement. But it seems to me patent, on the facts of this case, that they should have informed him in advance that they intended to hold such a meeting; that the question of terminating the placement with him would be firmly on the agenda; and that if he wished to do so he would then have an opportunity to express his wishes and feelings on the proposed decision.
34. Mr McKendrick has accepted that at no time prior to the meeting on 17 August 2009, and indeed until the notification of the outcome to him on 20 August 2009, did the local authority alert the claimant to the fact that they were about positively to consider, and make a decision as to, the removal of the children. He says, however, that there was no point in seeking to ascertain the wishes and feelings of Mr Bewry because they would have been obvious and were well known to the local authority, namely that he would wish to keep the children.
35. That does not seem to me to do justice to the obvious purpose and intent of section 22(4)(d). I am very firmly of the view that if they had given consideration to the question of consultation with the claimant, this local authority could not have reasonably considered, and no local authority could reasonably have considered, that his wishes and feelings were other than relevant regarding the matter to be decided. Mr McKendrick raised subsidiary points with regard to the practicability of ascertaining the wishes and feelings of the claimant. But it seems to me that there was patent practicability in at least leaving a letter or document at his home where he was resident, making plain to him that a meeting would be taking place; of the issues that would be considered at that meeting; and affording an opportunity to him to convey his wishes and feelings. I am thus satisfied that there was, in this case, a breach of duty by the Norfolk County Council under section 22(4)(d) of the Children Act 1989.
36. Mr McKendrick has very strongly submitted that, even if I reach that conclusion, I ought to do no more than give expression to it by judgment in the way that I just have. He submits that to go further and make some declaration would be acting in vain, since it could have no practical purpose or effect. I do not accept that submission. I wish to make absolutely clear for the last time that nothing, absolutely nothing, that I have said or done today reflects or impacts at all on the correctness or appropriateness or otherwise of any decision actually reached on 17 August 2009. Nothing that I have said or done today could conceivably have the effect of either of these children ever returning (except voluntarily when adult) to live with the claimant. Nothing that I have said or done today is remotely relevant to his suspension as a foster parent, or any continuing investigation or review of that matter by, or within, the local authority. But it may be some comfort to the claimant, and at any rate gives formal expression to the decision that I have reached on this issue that has been so hotly contested as between the claimant and the Norfolk County Council, if I declare, as I will formally do, that the Norfolk County Council erred in law by considering the claimant not to be a person whose wishes and feelings were relevant pursuant to section 22(4)(d) of the Children Act 1989 regarding the matter to be decided on 17 August 2009, namely a decision whether or not to terminate the fostering placements of RS and SP with him.
37. Are there any matters that now arise?
38. MISS PHILLIMORE: My Lord, yes. I am reminded by the Bar Pro Bono Unit that, pursuant to section 194 of the Legal Services Act 2007, the court has a power to make a pro bono costs order. The order would require the losing party to make a payment to the Access to Justice Foundation.
39. MR JUSTICE HOLMAN: I have never ever had this animal before. Is this going to be controversial or not?
40. MR MCKENDRICK: I have not heard of any such application or --
41. MR JUSTICE HOLMAN: Are you familiar with the provisions?
42. MR MCKENDRICK: I am not.
43. MR JUSTICE HOLMAN: Had you been alerted to them by Miss Phillimore?
44. MISS PHILLIMORE: I regret, no, I did not.
45. MR JUSTICE HOLMAN: I have to say, it had seemed to me, as I increasingly foresaw the substantive outcome to which I was going to come, that there would simply be no order as to costs because your client has not incurred any costs. I have no idea of any of that. Well, hand it up, the statutory provision. Is it a statutory provision?
46. MISS PHILLIMORE: I am afraid, my Lord, I do not have a statutory provision.
47. MR JUSTICE HOLMAN: Did you not say it was something to do with the Access to Justice Act?
48. MISS PHILLIMORE: It is 194, the Legal Services Act 2007.
49. MR JUSTICE HOLMAN: Have you got that?
50. MISS PHILLIMORE: I am afraid I do not have it, no. My Lord, I was supposed to be provided with an information sheet, I have just checked and it is not within my papers. They do give a reference to the website.
51. MR JUSTICE HOLMAN: Well, I am sorry, at half past 5 it is not the business of judges to start going to a website.
52. MISS PHILLIMORE: No, my Lord.
53. MR JUSTICE HOLMAN: I am sorry, I think you will have to come back on another day if you wish to pursue the application.
54. MISS PHILLIMORE: My Lord, all I was going to say was, in the circumstances, I would consider it appropriate for a sum equivalent to the fee payable to Mr McKendrick to be paid by the Norfolk County Council to the Access to Justice Foundation.
55. MR JUSTICE HOLMAN: Well, it is never an approach to the assessment of fees that you look at what the other side has got on the brief. Have you supplied the other side with some proposed schedule of the costs that you claim?
56. MISS PHILLIMORE: My Lord, no, because I have been acting pro bono. It simply seems that this is something that the Legal Services Act requires as a recognition of the costs to organisations such as --
57. MR JUSTICE HOLMAN: Are you saying that the Legal Services Act is putting me under a duty?
58. MISS PHILLIMORE: No, the court has a power.
59. MR JUSTICE HOLMAN: Just merely giving to me a discretion?
60. MISS PHILLIMORE: It is a power, my Lord.
61. MR JUSTICE HOLMAN: Only a power not a duty? Are you sure? If I have a duty I will have to give consideration to a duty. If it is a power I am not going to exercise it.
62. MISS PHILLIMORE: The court has a power to make a pro bono costs order, so I do not imagine for a moment that imposes a duty upon you, my Lord.
63. MR JUSTICE HOLMAN: No. Well, I am afraid, Miss Phillimore, I think the whistle has just gone against you. It is now half past 5. I have got a lot to do. There are a lot of people here who have got to get back to Norfolk. This would require quite possibly half an hour of consideration of the statutory framework, the website and so on. I am not going to do it today and I do not think you want to come back another day on this do you?
64. MISS PHILLIMORE: My Lord, no.
65. MR JUSTICE HOLMAN: No. So, there will be no order as to costs.
66. MR MCKENDRICK: My Lord, it is with some trepidation that I ask for permission to appeal against this decision.
67. MR JUSTICE HOLMAN: What is the error?
68. MR MCKENDRICK: The error of law is simply, my Lord, in carrying out the balancing act in relation to the whether or not (inaudible) the local authority's decision that Mr Bewry was not a relevant person for the purposes of section 22(4)(d) that your Lordship has urged in law in applying the Wednesbury test --
69. MR JUSTICE HOLMAN: What is the error that I have made?
70. MR MCKENDRICK: Well, my Lord, what I say is this. That when you approached the question of whether the local authority has acted in a way that no local authority could have acted, your judgment falls into error. My Lord --
71. MR JUSTICE HOLMAN: I have exercised a discretionary judgment.
72. MR MCKENDRICK: Well, my Lord, in my submission it is not so much discretionary. There has to be a clear factual basis to say that no local authority could have acted in the way --
73. MR JUSTICE HOLMAN: Just what I have said; no reasonable local authority could have steamed ahead with the meeting on 17 August without at least telling Mr Bewry that they were intending to consider this matter and asking him if he wanted to say something about it. No reasonable local authority, in my view, could have acted in that way. So, there is no error of law, there may be an error of discretion by me.
74. MR MCKENDRICK: My Lord, I am aware that you have given very careful and detailed treatment to the issues that have been raised. It is now half past 5, if those instructing me wish to pursue the issue --
75. MR JUSTICE HOLMAN: Well, the application for leave to appeal will be refused.
76. MR MCKENDRICK: My Lord, yes.
77. MR JUSTICE HOLMAN: I will have to fill in one of these forms and I will say that no error of law has been identified to me. My decision that the local authority reached a decision that no local authority could reasonably have reached is discretionary, and I am not persuaded that it is arguably wrong in any case. This is a highly fact specific case in which a bare declaration has been made, with no further wider or on-going consequences, and any appeal would be a total waste of public funds and the time of the Court of Appeal.
78. I think we have all got to have increasing awareness these days that public funds and court time are extremely limited and they have got to be conserved for proper cases. This should end now. We have all had a very full one day hearing. Mr Bewry found his judicial review much more narrowly constrained than he would have wished, but he has got to live with that, and you have had a decision and, in my view, you should live with that. But if you wish to go to the Court of Appeal to renew your application for permission that is your absolute right. That is what the form will say.
79. MR MCKENDRICK: My Lord, I am most grateful for you sitting so late today.
80. MR JUSTICE HOLMAN: All right. You may have felt that I was whipping you along a lot during the day, but I knew it would take a long time and I think repeatedly estimates are given which do not allow in them time for the judgment.
81. MR MCKENDRICK: I had not anticipated you giving an ex tempore judgment, my Lord, I must admit.
82. MR JUSTICE HOLMAN: Mr McKendrick, if, on a straightforward case like this, the judges reserve judgment, there would be a stack of reserved judgments so high that one would be doing them after the grave. I am afraid it is just not possible. Tomorrow, there is that amount of papers, on Friday there is that amount of papers. On Monday I had to give an ex tempore judgment; when does one catch up if one keeps reserving? And any judges who do, just drown.
83. Anyway, it is, I think, fundamental that estimates should include within them time for preparation and delivery of the judgment. If the judge decides he wishes to reserve, the case takes less time, that is another matter.
84. Thank you all very much. I am particularly grateful to you, obviously, Miss Phillimore, for acting pro bono and I hope Mr Bewry will give you suitable thanks. Maybe a liquid reward if nothing else at this hour of the day.
85. Thank you all very much indeed.