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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> TM AND PM FOR JUDICIAL REVIEW OF A DECISION TO REFUSE TO GRANT THE PETITIONERS' APPLICATION TO BE KINSHIP CARERS BY THE HIGHLAND COUNCIL [2017] ScotCS CSOH_139 (31 October 2017)
URL: http://www.bailii.org/scot/cases/ScotCS/2017/[2017]_CSOH_139.html
Cite as: [2017] CSOH 139, [2017] ScotCS CSOH_139, 2017 Fam LR 132, 2017 GWD 35-546

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OUTER HOUSE, COURT OF SESSION

[2017] CSOH 139

P193/17

OPINION OF LORD BRAILSFORD

In the Petition

TM and PM

Petitioners

for

Judicial Review of a decision to refuse to grant the petitioners’ application to be kinship

carers

THE HIGHLAND COUNCIL

Petitioners: Cartwright; Thorley Stephenson SSC

Respondents: Brabender; Harper Macleod LLP

Respondents

31 October 2017

[1] This is a petition for Judicial Review in which, as originally presented, the petitioners

sought reduction of a decision by The Highland Council dated 1 December 2016 refusing

their application to be kinship carers of their two grandchildren, PTM born on 11 October

2011 and E, a female child whose full name and date of birth are unknown to the petitioners.

At a procedural hearing on 1 June 2017 Lord Ericht reduced the respondents’ decision dated

1 December 2016 in respect of the child E. In respect of the decision insofar as it related to

the child PTM the matter proceeded to a substantive hearing on 21 June 2017.

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[2] As originally presented the petition deployed a number of arguments alleging

ultra vires actings of the petitioners in respect of their own procedures and, additionally a

number of alleged breaches of natural justice and an infringement of Article 8 ECHR by the

respondents, in relation to their handling of the application. The width of the petitioners’

case narrowed in terms of written submissions lodged in June 2017 and revised written

submissions lodged on the date of the substantive hearing. By the time of the substantive

hearing the grounds of challenge to the decision of 1 December had narrowed to two,

namely that the respondents had acted ultra vires in the conduct of an appeal against a

refusal to recommend the petitioners as kinship carers of PTM, which failing they had acted

in a manner which was procedurally unfair and as a consequence reached a decision that

was unlawful. The second ground of challenge was that the decision of 1 December 2016

did not provide adequate reasons.

Factual Background

[3] The background facts giving rise to this application may be stated relatively briefly.

LM is the daughter of the petitioners. She has two children, the aforesaid PTM and E. LM

was convicted of assaulting PTM and was sentenced on 11 July 2015 to a period of

imprisonment of 3 years and 4 months in respect of the conviction. Prior to that the female

petitioner had reported an assault on the child PTM. As a consequence of that report PTM

was removed from the care of LM and placed in local authority care. The child was

thereafter made the subject of a Compulsory Supervision Order in terms of section 83 of the

Children’s Hearings (Scotland) Act 2011. The child E was born in or around July or

August 2016 and was placed in local authority care shortly after her birth. She was also

made the subject of a Compulsory Supervision Order.

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[4] After PTM’s placement in local authority care the petitioners made an application to

the respondents’ social work department to be considered as kinship carers for the child. By

letter dated 11 April 2016 the respondents advised the petitioners that they would not be

considered as kinship carers for PTM but that a final decision rested with the Kinship Care

Panel maintained by the respondents1. On 20 September 2016 the petitioners were formally

informed that the Kinship Care Panel had not recommended that they should be kinship

carers for PTM, albeit that before that date and by at least 24 August 2016 the petitioners

were aware of the decision of the Kinship Care Panel and had submitted comments on that

decision which had been accepted as the basis of the appeal held on 20 September 20162.

This decision was the subject of an appeal. By letter dated 1 December 2016 the petitioners

were advised that their appeal in respect of the decision of the Kinship Care Panel had been

refused.

Legislative Framework

[5] There was no material dispute between parties as to the applicable legal framework.

It is a matter of agreement between the parties to this petition that PTM is subject to a

Compulsory Supervision Order made under and in terms of section 83 of the Children’s

Hearings (Scotland) Act 2011. As a consequence PTM is in terms of section 17(6)(b) of the

Children (Scotland) Act 1995 (“the 1995 Act”) a “looked after” child. Section 17 of the

1995 Act imposes obligations upon local authorities in respect of looked after children. For

present purposes the relevant provisions are as follows:

1 The Kinship Care Panel met to discuss the petitioner’s application on the assessment on 21 April

2016. The Minute of that meeting was produced as No 7/7 of process. The recommendation was that

the petitioners were not approved as kinship carers of PTM. That decision was subsequently signed

indicating acceptance, by the agency decision maker on 5 May 2016. The Minute records that “a copy

of the minute would be sent with the decision letter” to the petitioner.

2 See No 6/1/9 of process, fifth paragraph.

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“17(1) Where a child is looked after by a local authority they shall …—

(a) safeguard and promote his welfare (which shall, in the exercise of

their duty to him be their paramount concern);

…

direct contact between the child and any person with parental

responsibilities in relation to him as appear to them to be, having

regard to their duty to him under paragraph (a) above, both

practicable and appropriate.

(3) Before making any decision with respect to a child whom they are looking

after, ..., a local authority shall, so far as is reasonably practicable, ascertain

the views of - ...

(d) any other person whose views the authority consider to be relevant.”

The Looked After Children (Scotland) Regulations 2009 (2009/2010) (Scottish SI) (“the

2009 Regulations”) impose obligations on local authorities in respect of looked after children

in their care. Regulation 10 relates to Kinship Carers and provides:

“(1) A local authority may make a decision to approve a person mentioned in

paragraph (2) as a suitable carer for a child … which carer shall be known as a

‘kinship carer’.

(2) The persons referred to in paragraph (1) are–

(a) a person who is related to the child; or

(b) a person who is known to the child and with whom the child has a

pre-existing relationship.

(3) Before making a decision under paragraph (1) the authority must–

…

(b)

…”

… carry out an assessment of that person’s suitability to care for the

child.

It was accepted by both competing parties that the petitioners fell within the category of

persons specified in Regulation 10(2)(a) of the 2009 Regulations.

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The Respondents’ Kinship Procedure and Guidance

[6] The 2009 Regulations allow a local authority to make a decision to approve a kinship

carer. Those regulations require authorities before approving kinship carers to obtain

information relative to the child and assess applicants who wish to be kinship carers.

The 2009 Regulations provide no details of the process by which the decision making

required of the local authority is to be undertaken. The Scottish Government has

promulgated guidance in relation to the 2009 Regulations.3 Under the heading “Approving

Kinship Carers and Reviewing non-approval decisions” the guidance provides that:

“(3) Regulation 10 refers to the local authority making an approval decision. It does

not define the process. The local authority may decide to use their existing Fostering

Panel, the sub-group of that panel focusing on making recommendations about

kinship carer assessments, or a small group including a manager set up for the

purpose. Whatever decision-making process is established, the individual should be

well supported and trained in the distinctive aspects of kinship placements.

Although the pattern of a panel discussion, recommendation and then endorsement

by an agency decision-maker which is familiar in foster care is not specified, local

authorities should consider a form of this process in order to be accountable for these

placements. There is no provision in the regulations for review if a kinship carer is

not approved but good practice indicates that local authorities should make

provision for a similar review of the decision as may be available to fostering

applicants.”4

The respondents adhered to that advice in making administrative arrangements to ensure

the fulfilment of their obligations under the 2009 Regulations. They established an

independent kinship panel modelled on fostering panels within their authority. They issued

“Kinship Care Procedures and Guidance” initially in July 2015 and revised in April 2016.5

3 Guidance on the Looked After Children (Scotland) Regulations 2009 and the Adoption and Children

(Scotland) Act 2007, March 2011, published by the Scottish Government, produced as No 7/4 of

process.

4 No 7/4 of process, paragraph numbered 7 on page 55.

5 “Kinship Care Procedures and Guidance” published by The Highland Council and dated July 2015,

produced as no 7/2 of process, “Kinship Care Procedures and Guidance”, published by The Highland

Council and dated April 2016, produced as No 7/3 of process.

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Petitioners’ Arguments

[7] The petitioners’ first argument was that the decision dated 1 December 2016 had

been reached in breach of the respondents’ own kinship care procedures.

[8] This argument was developed initially by stating that there were two sets of kinship

care procedures promulgated by the respondents, the first dated July 2015, the second

April 2016. It was submitted that the petitioners had never been advised which set of

procedures applied to their application. Beyond that it was argued that in any event the

respondents in determining the petitioners’ application had acted in contravention of

provisions which were contained in both sets of procedures.

[9] The respondents were said to have acted in breach of these procedures in three

respects. First, they failed to notify the petitioners of the decision of the Kinship Care Panel

until the date of a hearing on the appeal on 20 September 2016. Second, they did not allow

the petitioners the time stipulated in the procedure to consider whether they wished to

appeal the decision of the Kinship Care Panel by providing the petitioners with a copy of the

decision they were appealing against only on the day of the appeal. Third, the respondents

did not determine the petitioners’ appeal in accordance with the Kinship Care Procedure.

[10] In relation to these arguments it was submitted that a Kinship Care Panel decision to

decline to recommend the petitioners as kinship carers was made at a meeting of the panel

on 21 April 2016, confirmed by the chair of the panel on 3 May 2016 and confirmed by the

agency decision-maker on 5 May 2016.6 This decision was not formally notified to the

petitioners until 20 September 2016. In terms of paragraph 8.2 of the July 2015 Kinship Care

Procedures and Guidelines the petitioners should have received intimation of the decision of

the panel within ten working days of that decision being confirmed by the agency

6 The Highland Council - Care & Learning Service Kinship Care Panel; Minute of Meeting held on

21 April 2016 produced as No 7/7 of process.

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decision-maker.7 The same time limit applied in the April 2016 Kinship Care Procedures and

Guidance.8 In terms of paragraph 9.1 of the July 2015 Kinship Care Procedures and

Guidelines if a kinship carer was not approved that person had a right of appeal to the

Director of Care and Learning within 21 days of notification of the decision. The time limit

for appealing was extended to 28 days in the April 2016 edition of the Guidelines.9

[11] The petitioners’ submission was that the failure to intimate this decision, made by

the agency decision-maker on 5 May 2016, to them until 20 September 2016 was prejudicial

to their interests. 20 September 2016 was the date when their appeal against the decision

was due to be held. Although they were present at the hearing of the appeal and made

submissions it was submitted that because of failure to intimate timeously they were denied

the opportunity to take independent advice and be separately represented. They were

denied the opportunity to present written submissions prepared with the benefit of

independent advice.

[12] A second departure by the respondents from their written Kinship Care Procedure

and Guidance was identified, this being in relation to the appeal decision made following

the hearing on 20 September 2016. The official who heard that appeal was Bill Alexander,

then the Director of Care and Learning for the respondents. Following the hearing of the

appeal he wrote to the petitioners by letter dated 26 September 2016.10 The letter narrated

Mr Alexander’s account on a number of matters raised at the hearing and concluded in the

penultimate paragraph:

“I am aware that you are presently starting a further assessment, with regard to

providing care for your granddaughter, [E]. My decision is, therefore, not to come to

a conclusion on your appeal at the current time, but to reflect further on this matter

after the second assessment is received. I shall alert the social worker who is

7 No 7/2 of process at paragraph 8.2 on page 5

8 No 7/3 of process at paragraph 10.2 on page 7

9 No 7/3 of process at paragraph 11.1 at page 8

10 No 7/1 of process

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undertaking that assessment of this fact and ask her to ensure that you both have

every opportunity to be fully involved and engaged in that process.”

The petitioners’ submission was that by so acting Mr Alexander breached the relevant parts

of the respondents’ Kinship Care and Guidance Procedures. The relevant provision in the

guidance provided:

“The Director of Care and Learning will make arrangements for the appeal to be

considered and identify someone to hear the appeal and provide feedback on the

circumstances. The person hearing the appeal can then either, make an agency

decision, uphold the decision of the placement confirmation meeting or refer it back

to the placement confirmation meeting for further consideration.”11

It was submitted that having regard to the terms of Mr Alexander’s said letter of

26 September 2016 he did not comply with the guidance in relation to the hearing of appeals.

He did none of the things he should have done in terms of the guidance. He neither reached

a decision or referred it back to the placement confirmation meeting for further

consideration. His decision to “reflect further” was ultra vires the power conferred on him in

terms of the guidance.

[13] A further complaint was advanced by the petitioners. This was that the respondents

had displayed bias in their handling of the petitioners’ application. The argument rested

upon a letter dated 10 August 2016 from the respondents to the petitioners.12 The part of the

letter founded upon was in the following terms:

“My view is that having read both the Independent Report and the Minute I doubt

that doing another assessment would come to a different recommendation.”

The argument was that it was clear from this comment that the respondents’ employee who

wrote the letter considered that another assessment of the petitioners as kinship carers

would reach the same conclusion as the earlier one in respect of the child PTM. It was

submitted further that on that basis the fair minded and well-informed observer with

11 The wording of this provision is identical in both versions of the Kinship Care Procedures and

Guidance paragraph 11.2 of No 7/3 of process and paragraph 9.2 of No 7/2 of process.

12 No 6/1/8 of process

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knowledge of the circumstances would be likely to conclude that on a balance of

probabilities any further assessment had a pre-determined conclusion. This would lead the

fair minded and informed observer to the view that there was a real possibility that the

respondent was biased in relation to the kinship assessment process, reliance was placed

upon Porter v Magill [2002] 2 AC 357 at paragraph 103.13

Respondents’ Arguments

[14] The respondents’ first proposition was that in terms of section 17(1)(a) of the

1995 Act it was their duty to make the looked after child’s welfare their paramount

consideration. In the context of kinship care they required to determine whether a person

was or was not approved as a suitable carer for a looked after child. In order to fulfil this

obligation the respondents had, in accordance with Government guidelines, instituted

“Kinship Care Procedures and Guidance”. This was published on their website and, in

addition, a hard copy of the document had been forwarded to the petitioners in or around

September 2016. It was also noted that the petitioners had had the benefit of legal assistance

and representation since at least December 2015.14

[15] In relation to their published Kinship Procedure and Guidance, it was submitted that

the respondents had regard to their obligations under the 2009 Regulations. Reference was

made in particular to Regulation 10. It was acknowledged that Regulation 10(1) allowed a

local authority to make a decision to approve a “kinship carer”. The petitioners fell within

the class of persons who qualified as potential kinship carers. The 2009 Regulations made

no provision or provided no specific details as to the process by which the assessment of

13 Per Lord Hope of Craighead: “The question is whether the fair-minded and informed observer,

having considered the facts, would conclude that there was a real possibility that the tribunal was

biased.”

14 No 6/1/2 of process

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kinship carers was to be undertaken. Guidance issued by the Scottish Government

sanctioned, but did not require, the local authority to make use in this process of their

existing fostering panel or base their method of assessment upon that model. That guidance

was followed by the respondents in establishing an independent Kinship Panel. The model

followed in their published guidelines was based upon fostering panels in terms of

Regulation 17 of the 2009 Regulations.

[16] On the basis of their guidance, in order to consider an application such as that made

by the petitioners and make recommendations in respect thereof, the Kinship Panel would

require to have before it an assessment. In the case of the child PTM the assessment was

undertaken by a social worker who followed the respondents’ guidance and reported to the

Kinship Care Panel. The petitioners received a copy of this assessment prior to it being

forwarded to the Kinship Panel. The Kinship Panel did not recommend the approval of the

petitioners’ kinship carer application relative to PTM. This recommendation was forwarded

to the agency decision maker with whom in terms of the respondents’ Kinship Procedures

and Guidance, a decision to approve the petitioners’ application lay. The agency decision

maker did not approve the petitioners’ application. This decision was intimated to the

petitioners by the chair of the Kinship Panel by letter dated 6 May 201615.

[17] The respondents’ Kinship Procedures and Guidance set out an appeal process

following a decision not to approve an application. This provided for a time limit within

which, following notification of the decision, an appeal could be made. The time limit was

either 21 or 28 days depending on which version of the guidance was followed. The

petitioners did not adhere to the 28 day time limit and did not seek to appeal the decision

intimated to them by letter dated 6 May 2016 until 22 August 2016. Notwithstanding the

fact that the request for an appeal was made outwith the 28 day time limit, the respondents

15 See No 7/7 of process and 6/1/9 of process

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exercised their discretion to allow an appeal. Consistently with their practice in other cases,

the respondents determined that the appeal was to be heard by the then Director of Care

and Learning. The appeal review was heard by this person on 20 September 2016. The

petitioners were present at the review. The petitioners made both written and oral

submissions. The chair of the appeal panel considered that the petitioners had made a

“strong presentation”16. His decision was intimated to the petitioners by letter dated

1 December 2016. His decision was that he did “... not agree your application to provide

kinship care for either child.”17 Reasons for this decision were provided.

[18] In relation to the second argument advanced by the petitioners, that is bias, the

respondents’ position was that throughout the assessment of the petitioners’ application and

its determination, they followed their published “Kinship Procedures and Guidance”. They

permitted the petitioners a review of the decision where there was no requirement in their

guidance to so do but with the purpose of giving the petitioners a further opportunity

within a new assessment process. No bias was displayed.

Conclusion

[19] The petitioners’ submission rests primarily upon the procedures implemented by the

respondents in fulfilment of obligations incumbent upon them under Regulation 10 of the

2009 Regulations and alleged failures to comply with those procedures. There was no

dispute between the parties that the petitioners fell within the category of person who fell to

be considered as potential kinship carers. There was, further, no dispute that when a person

entitled to be considered as a kinship carer made an application to be so considered the

relevant authority must, before making a decision, carry out an assessment of that person’s

16 See affidavit by Bill Alexander, dated 26 April 2017, No 12 of process on page 3

17 No 6/1/12 of process

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suitability to care for the child (Regulations 10(3)(b) of the 2009 Regulations). Beyond that,

there was agreement between the parties that the regulations provided no mechanism nor

set down a scheme stipulating how that assessment process required to be carried out. Such

advice as was available was to be found in guidance issued by the Scottish Government

in 2009. There was no dispute that the respondents had, following advice in the Scottish

Government’s guidance, published their own Kinship Care Procedures and Guidance,

posted the same on their website and, in the context of the present petition, provided hard

copies of the same to the petitioners at the time they made application to be considered as

kinship carers of the two children.

[20] The complaint of the petitioners in the end of the day narrowed to one of procedural

irregularity and, in addition, a complaint of bias by one member of the respondents’ staff.

[21] In so far as the case of procedural irregularity was concerned, in order to succeed the

petitioners would require to establish both that the respondents departed from their own

published guidelines as to how in a procedural sense such an assessment should be carried

out and, in addition, that such departure from procedure defeated a legitimate expectation

of the petitioners and, further, resulted in prejudice to them.

[22] There is in my opinion no merit in so far as the first of those arguments is concerned.

The issue where a difference in the two versions of the guidance was identified concerned

the time limits for appeal from a decision of a Kinship Care Panel. It is correct that the

July 2015 Guidance stipulated 21 days and the April 2016 Guidance stipulated 28 days.

However in the context of the facts of this petition there was no practical consequence

arising out of this difference. Nothing turns on whether the time limit for appeal was 21 or

28 days as, regardless of which period applied, an appeal outwith these limits was allowed

by the respondents as an exercise of discretion. The development of this, that the petitioner

did not know of the appeal until the date it occurred, is demonstrated to be incorrect on the

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known facts. In the Note of Argument counsel for the petitioners conceded that “formal”

intimation was made on the date of the hearing of the appeal. However the Minute of the

Kinship Care Panel recording the decision complained of records that a copy thereof “would

be sent” to the petitioners18. That this in fact happened is clear from the terms of a letter

from the respondents to the petitioners dated 24 August 201619. It is also clear, not least

from the affidavit provided by the chair of the appeal panel, that the petitioners participated

in the appeal and made a “strong presentation”20.

[23] The development of the argument was that in terms of the rules, the ultimate

decision maker, in the context of this petition the chair of the appeal panel, required to make

a determination. It was argued that in the present case that procedure had not been

followed, the decision maker had sought further advice from a social worker who was about

to commence an assessment in respect of the child E, before making a decision. The reasons

for deciding to delay making his decision in respect of the appeal against the Kinship Care

Panel decision relative to PTM until after an assessment of the petitioners as potential

kinship carers of E was available are explained in the affidavit of the chairperson21.

[24] Having regard to the terms of the relevant guidance, I am of the view that this

complaint has no merit. The procedure followed, whilst not expressly provided for in the

guidance did not, in my view, derogate from the purpose of the published guidelines.

Moreover, and importantly, in affording the petitioners the opportunity to avail themselves

of a further assessment, it did not detract from, or remove, rights of the petitioners. On the

contrary, it provided them more protection in that both further consideration and additional

assessment was given to augment representations they made at the review hearing.

18 No 7/7 of process, final page

19 No 6/1/9 of process, fifth paragraph

20 No 12 of process

21 No 12 of process, page 3, fourth paragraph.

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[25] In so far as the allegation of bias is concerned, it rested upon one sentence in one

letter written to the petitioners by an employee of the respondents22. In the first place the

sentence complained of requires to be read and considered in the context of the whole letter.

Read as a whole the letter cannot, in my opinion, be said to have expressed any partiality or

have been influenced by any outside source in a manner which was detrimental to the

interests of the petitioners. Moreover, the part of the letter complained of, properly

construed, can be no more than an expression of opinion in relation to the likely outcome of

a further assessment in relation to the child E. The opinion was based upon material the

author of the letter had seen and which, moreover, had been seen by the petitioners. The

author of the letter was a person who was not charged with any responsibility for the

determination of the appeal relative to PTM. There is no suggestion that the author had any

influence upon the person charged with responsibility of determination of the appeal.

Moreover the letter was plainly written at a time which was outwith the period for

appealing the decision regarding PTM and, in any event it is plain from the letter that the

author believed there was to be no appeal. Having regard to those considerations in a

practical sense, the letter cannot be said to have had any influence upon the appeal process.

I am satisfied that the letter cannot be construed in a way which would cause it to fall within

the ambit of Lord Hope’s dicta Porter v Magill (supra). It follows that the letter cannot

constitute the basis for a challenge to the decision on the grounds of bias.

[26] For all the foregoing reasons, I am not satisfied that the complaints set forth in this

petition have been established. I will sustain the respondents’ second plea-in-law and refuse

the prayer of the petition. I will reserve all question of expenses meantime.

22 No 6/1/8 of process