QUEENS BENCH DIVISION
Kingston upon Hull
B e f o r e :
| R (on the application of H)
- and -
KINGSTON UPON HULL CITY COUNCIL
- and -
|KS, AS, SS, TS and FS
Mr David Phillips (instructed by Kingston upon Hull City Council) for the Defendant
Miss Joanne Jenkins (instructed by Hamers Solicitors) for KS (Interested Party)
Miss Naomi Madderson (instructed by Burstalls Solicitors) for AS and SS (Interested Parties)
Mr Simon Hirst (instructed by Pepperells Solicitors) for TS and FS (Interested parties through their guardian)
Hearing dates: 22nd and 25th February 2013
Crown Copyright ©
His Honour Judge Jeremy Richardson QC:
(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?
(1) The decision by the local authority of 31st January 2013 to remove both children from the residential care of their grandparents to foster care.
(2) The decision by the local authority of 1st February 2013 to implement the decision of 31st January 2013 forthwith.
Summary of the Judicial Review Proceedings
(2) Summary of the Judicial Review Proceedings
(4) The Facts
(5) The Law
(6) The Duty to Consult
(7) Discussion in relation to this case
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 Family Proceedings Court
The FPC decision
"During (the evidence of the social worker) it became clear there was no evidence before the court today for the assertion that she was concerned for the risk posed by the paternal grandparents. Unfortunately there is not any documented evidence of conversations between (the LA) and the paternal grandparents outlining their position on caring for the children."
A little later the justices indicated that there was no evidence the LA had looked at placements within the family or friends prior to deciding foster care was best. The justices continued:
"During the cross-examination the social worker agreed that there was not any justifiable reason whey the children could not be placed with the paternal grandparents whilst the viability assessment takes place and that support could be provided by the (LA)."
The Viability Assessment of the Grandparents
(1) The grandparents had not implemented any long term planning for the children and felt that they should not have been removed from their parents.
(2) Both grandparents felt the children should be returned to their mother (who could cope if someone went in to clean up and have a chat once per week). They also felt that the father could return to family life if he stopped taking drugs.
(3) Neither would call the police if their son arrived and would not leave when requested.
(4) There was a history of intra-family violence when arguments flared-up.
(5) There was a minimisation and denial of the effects of historic domestic violence.
(6) The grandfather's acceptance of some aspects of the drug culture was worrying.
(7) The grandparents were seemingly unconcerned about the poor home conditions endured by the children when with their parents. It was felt by social workers the grandparents lacked insight to the emotional and physical harm suffered by the children when with their parents.
(8) There was some evidence of a lack of cooperation with certain social workers by the grandparents.
(9) The grandparents exhibited an inability to understand appropriate punishment regimes for the children and appeared dismissive of concerns.
The report concludes:
"It is the opinion of the author of this report that (the grandparents) do not have the understanding which would fully enable them to protect (the children) due to their lack of acceptance of any of the (LA) concerns. They have demonstrated hostility towards the (LA) which would have implications for working relationships which would ultimately have an impact upon the children."
The report acknowledged the passion for caring for the children by the grandparents and the potential benefits for placing the children with family members, but the concerns outweigh the benefits. Consequently, the report concluded in this way:
"It is evident that (the children) have lived within poor home conditions, have witnessed domestic violence, and drug use. They have no routines or clear boundaries and have had little stability. They will need a high level of parenting to thrive and reach their potential. Both (children) need a better than average standard of care and (the grandparents) are unable to provide this."
"The (LA) have (ICO's) in respect of both children who are in need of immediate care placement (to be placed together)" (emphasis mine)
There are further entries upon the computer system of the LA revealing the decision making process. On 1st February 2013 there was a meeting between senior social workers and those closely involved with the family. The decision made on 31st January 2013 was reinforced to the effect that foster placement should occur with "immediate effect". The reasoning was:
"The viability assessment of the grandparents is negative and it is felt that their care of the boys is a continuation of the poor care the boys were receiving from their parents."
The LA plainly decided to remove the children speedily and was seemingly concerned about the parents seeking to remove the children from the care of the grandparents. I am slightly concerned that the latter aspect of the decision appears to have been entered upon the sequentially numbered computer system as "17" when events recorded for the following day are recorded as being "15". I hope the entry is not part of any attempt to justify what happened after the event. I am troubled by the sequential entries, but I will, for present purposes, not assume anything untoward.
The Riverside Incident
The Immediate Removal Decision
The Judicial Review Proceedings.
The Judgment of 25th February 2013
(1) The decision made by the LA on 31st January 2013 to remove the children was unlawful.
(2) The LA was the author of the very unhappy events of 1st February 2013 (the Riverside Incident); and, had they acted lawfully, those events may have been avoided.
(3) Having created that situation, as a result of that unlawful decision, the LA acted reasonably in taking the immediate action to remove the children during the afternoon of 1st February 2013. The LA are much to be criticised for creating the situation (due to an unlawful decision); but having created it, acted in a way that many other local authorities would have acted.
(4) The proposal to remove the children is one that would have received the support of the guardian providing appropriate planning had been undertaken (it was not). In consequence the children entered foster care in a rushed and unseemly manner. The guardian was not in fact consulted.
(5) At no stage did the decision of the LA have the approval of any court. The decision not to refer the case back to the FPC or any family court was unlawful.
The Care Proceedings
(1) It is always important (usually vital) for any decision-maker to consult with all relevant parties to be affected by the proposal before making the decision. The weight (or none) to be attached to the responses is a matter for the decision-maker providing the decision is legally rational.
(2) In the context of the removal of a child from a parent (and I would add any other family member) should not be countenanced unless and until there has been due and proper consultation and an opportunity to challenge the proposal.
(3) Article 8 not only provides substantive protection for parents and other family members, but requires procedural safeguards too.
(4) Article 8 is not something that applies simply to the judicial process, but to other decisions made by the local authority too.
"So Article 8 requires that parents are properly involved in the decision-making process not merely before the care proceedings are launched and during the period when care proceedings are on foot (the issue I was concerned with in Re L), but also ---- after care proceedings have come to an end and whilst the local authority are implementing the care order."
The Duty to Consult
"Parents should be expected and enabled to retain their responsibilities and to remain closely involved as is consistent with their child's welfare, even if that child cannot live at home either temporarily or permanently."
"If children are to live apart form their family, both they and their parents should be given adequate information and helped to consider alternatives and contribute to the making of an informed choice about the most appropriate form of care."
Discussion in relation to this case
(1) The FPC made its decision to grant ICO's in respect of both children on 18th December 2012 on a very clear premise – that it approved the children should live with the grandparents.
(2) The decision to remove the children was made on 31st January 2013 following receipt of the Viability Assessment of the grandparents. This was a decision and there was no consultation with anyone outside the LA before it was made.
(1) The viability report on the grandparents was completed by the LA on 30th January 2013. It was unfavourable to the grandparents.
(2) It must be remembered the FPC was of the very clear view the grandparents should remain the primary carers of the children and made the ICO's on that very clear understanding.
(3) The decision to remove (not a proposal) was made on 31st January 2013 in the absence of any consultation with the grandparents (who were actually looking after the children and in respect of whom the adverse report related), or the parents, or the guardian.
(4) There is no evidence of any alternative plan embracing other or alternative protective measure for the children short of removal from the care of their grandparents. These were after all two very young children who had been in what appears to have been an abusive parental household (not grandparental household).
(5) The documentation relating to the decision is very sparse. There is no record of the discussion or the empirical or, indeed any other, analysis of the facts or situation. There is no record of the evidence or material considered. There is no record of the competing arguments. There are no notes of the meeting, nor any minutes. [I shall say more of this: infra)
(6) This was a critical meeting whereby a fundamental change to the lives of the children was being postulated and the net content of the notes is but a few lines on the computer system. Consequently, the decision (and let there be no doubt it was a decision) is impossible to review with any level of accuracy except by reference to witness statements made much later once the judicial review proceedings were commenced.
(7) There are no minutes of the discussions with the police; and the information given to the Independent Reviewing Officer seems to have been an afterthought
(1) By a decision of 31st January 2013 the LA decided to remove the children (who were both subject to ICO's in favour of the LA) from the care of their paternal grandparents.
(2) The LA was under a duty to consult with the mother and father, paternal grandparents, and the guardian of the children before taking that decision.
(3) Due to a significant change in the care provided for the children which would have resulted form the decision, the LA was under a duty to have the case listed before the FPC before acting upon it.
(4) The LA did not consult with any of those who were required to be consulted before making the decision. The LA arranged a meeting with the mother and father on 1st February 2013 to inform them of the decision to remove the children but not to consult them.
(5) The LA made no application for the case to be listed before the FPC before the decision acted upon.
(6) The reaction of the father at the meeting on 1st February 2013 and the consequent decision of the LA to remove the children as an emergency was the result of the failure to consult the relevant parties.
(7) The decision of the LA of 31st January 2013 to remove the children from the care of their paternal grandparents was therefore unlawful due to the failure to consult the relevant parties before making the decision.