Public law Children: a case law update

Once again as winter sets in we have reached that point where an update of recent case law in the area of care/pubic law children work is (hopefully) welcome by all. Since lockdown there have been numerous cases in relation to remote hearings and various versions of what has now become very detailed and helpful guidance. In an attempt to move away from the depressing picture of lockdown, I am going to focus on some other areas in this update.

The first topic is something which I have had numerous issues with in the past; local authorities placing looked after children in temporary accommodation in Scotland. The issue was addressed in Salford CC v M (Deprivation of liberty in Scotland) [2019] EWHC 1510 (Fam), albeit the recently reported decision of Cobb J in Re H Interim Care Scottish Residential Placement [2020] EWHC 2780 (Fam), deals with the issue of placement in more detail, with the Salford case focussing more on the deprivation of liberty angle. The facts of Re H are not so important, rather it is the legal ramifications that I find so interesting. The salient facts were that a young man with behavioural difficulties, H, was placed in a temporary residential placement in Scotland by a North East local authority. H was a looked after child and became subject to an interim care order around 12 months after his initial accommodation pursuant to s.20. The question for Cobb J was in effect, the legal basis upon which a looked after child can be placed in Scotland under the auspices of an interim care order.

Cobb J found that paragraph 19 of Schedule 2 (arrangements to assist children to live abroad), did not apply as the placement was temporary in nature; H was not moving to ‘live’ in Scotland;

‘So when is paragraph 19 of Schedule 2 CA 1989 actively engaged? In my judgment, this statutory provision is engaged only when an English local authority is making arrangements, as the statute specifically provides, for the child to 'live' abroad; that is to say, for a proposed long-term or permanent arrangement for a child's future outside of the jurisdiction. It is not engaged in my judgment where the proposal of the English local authority is to place a child temporarily, or in the interim or short term, outside of England and Wales.’

The local authority could however, properly rely on the provisions of s.37(7)/(8) of the CA 1989 in order to place a child subject to an ICO, anywhere in the UK, albeit the Court would need to scrutinise the care plan given the fact that the child is subject to an ICO;

‘South Tyneside Council could place Henry, a child who is the subject of an interim care order (section 38 CA 1989), anywhere in the United Kingdom without seeking a specific free-standing order of the English court giving its formal approval. It was, and is, entitled to do so by reliance on the provisions of section 33(7)/(8). However, before making any interim care order, a court would need – as it would in any public law case – to scrutinise the care plan. In a case such as this, the court will want to ensure very specific compliance (inter alia) with the requirements of the 2010 Regulations. If satisfied with such compliance, and of the view that the plan for placement in residential care in Scotland meets the needs of the child, it would be appropriate for the order placing the child in the interim care of the authority to be endorsed with the explicit acknowledgement and approval of the plan to place the child across the border in Scotland; (see in particular [35], [37], [49], and [51] above).’

It is therefore essential that any placing authority complies fully with the 2010 Regulations (the Care Planning, Placement and Case Review (England) Regulations 2010). A looked after child who is not subject to an ICO or care order, can be lawfully placed elsewhere in the UK provided the regulatory process is followed correctly;

‘Thus, it will be clear that there is nothing in the primary or secondary legislation which prevents a local authority from placing a child which it is 'looking after' (accommodating) under section 20 CA 1989 outside of England (i.e. within Scotland) or even outside the UK. On my reading of the legislation (and no party in the instant case demurs), this can be done without recourse to the court, provided that the local authority has complied with its multiple duties under Part III CA 1989 (specifically section 22), is satisfied that this is the most appropriate placement for the child, has complied with the placement plan requirements under Regulation 9 of the 2010 Regulations and has complied with the detailed consultation and approval provisions of Regulation 11 of the 2010 Regulations.’

In relation to the ICO, this is not recognisable or enforceable in Scotland; conversely, a care order can be transferred to Scotland and recognised as a compulsory supervision order, pursuant to the transitional framework. It appeared possible as a matter of law, for a child’s parents to litigate in Scotland in relation to a child placed there by an English authority under an ICO, albeit such matters were limited to the child’s immediate protection. Any English authority seeking for recognition/enforcement of an ICO would need to consider petitioning to nobile officium of the Inner House of the Court of Session (and it is not clear whether any such petition would succeed);

‘The current interim care order in respect of Henry is not recognised and is not capable of enforcement in Scotland. Happily, at present no party seeks its enforcement, and there appears to be no reason in Scots law for taking any step towards recognition other than for 'legal tidiness'. If any party (particularly the Local Authority) seeks recognition or enforcement, it would be appropriate for that party to petition to the nobile officium of the Inner House of the Court of Session for an order in that court; I suggest that the success of such an application would depend on a range of factors including the specific facts, and the nature of the relief sought; (see in particular [54], and [63]-[72] above). While it appears possible for the parents to litigate in Scotland in relation to Henry on matters strictly limited to his immediate protection (see [70]/[71] above), it is reasonable to assume that, through judicial liaison under the 2018 Judicial Protocol, steps would be taken to avoid concurrent proceedings being held in the two jurisdictions.’

Cobb J did not find that H was deprived of his liberty in his placement, however if he was being, the local authority would again have needed to consider petitioning to nobile officium of the Inner House of the Court of Session as was done in the Salford case;

‘Henry is not, as a matter of fact, currently deprived of his liberty at Ossian House. If I were to have found that he was/is deprived of his liberty, I would have had to consider whether to make a declaration of lawfulness. Had I done so, the Local Authority would currently be obliged to petition to the nobile officium of the Inner House of the Court of Session as in the case of Salford CC(see in particular [81]-[83] above).’

Cobb J concluded by noting concerns in relation to the regularity with which children are being placed in unregulated placements due to a lack of adequate provisions in England and Wales (note that a Scottish placement will not be approved pursuant to the English regulatory framework), citing the Children's Commissioner’s recently published a report entitled "Unregulated: Children in care living in semi-independent accommodation" (10 September 2020).

Any local authority placing a child in an unregulated placement does of course, need to carefully follow the President’s guidance in relation to unregulated placements. In respect of placement of a child who is looked after pursuant to s.20 or alternatively subject to an ICO, local authorities are strongly advised to obtain early legal advice, prior to effecting any placement in Scotland. Unfortunately the experience of the writer is that looked after children subject to ICOs are in some cases, being placed in Scottish placements, without the Court being notified. Similarly, local authorities also need to consider the fact that any Court authorised deprivation of liberty is made in relation to a specific placement, and if a local authority seeks to move a child and continue any deprivation of liberty, then the Court will need to be consulted and a further declaration made in relation to any new placement (again, a fact that can sometimes be missed by local authorities).

Cumbria County Council v T (Discharge of Interveners) [2020] EWFC 58 is a very fact specific, but interesting judgment from MacDonald J, our regional FDLJ for the North West. The case involved a situation within care proceedings in which the mother was seeking findings of sexual abuse of the subject child, against the father and other individuals she asserted were involved in such abuse. The local authority was not seeking findings of sexual abuse, on the basis that the evidence would not allow for such findings to be made to the requisite standard of proof. Rather, the local authority pleaded threshold on the basis that (i) the mother had developed an unreasonable and false belief that the child was sexually abused by the father, or alternatively, (ii) the mother had deliberately fabricated false allegations of sexual abuse and induced the child to make false allegations of sexual abuse against the father. The father’s associates who the mother alleged were involved in the alleged sexual abuse, had been joined as intervenors by the circuit judge previously dealing with the matter; the issue for MaDonald J was whether they should continue to have intervenor status.

MacDonald J provides a helpful and concise summary of the applicable case law relating to individuals being given intervenor status in care proceedings. The Judge also considered the well known principles set out by the now President in A County Council v DP and Others [2015] EWHC 1593. MacDonald J ruled that all of the intervenors should be discharged, noting in particular the fact that the local authority would be actively putting a case that none of the intervenors were perpetrators of abuse, as would the father;

‘……the denial by the current intervenors of any inappropriate behaviour with T or any other child is co-terminus with the case of the local authority, and indeed the father. In these particular circumstances, I am satisfied that the rights of each of the intervenors can be sufficiently protected in this case without them having to be maintained as intervenors putting forward individual cases, even in circumstances where the mother seeks to put allegations to them in the witness box. I am reinforced in this view by the fact that, at all times when giving evidence the witnesses will have the protection of s 98 of the Children Act 1989. Any statement or admission made by the witnesses in the course of giving evidence in these proceedings will not be admissible in evidence against that witness or his or her spouse or civil partner in proceedings for a criminal offence other than perjury. Whilst I accept that the protection afforded by s 98 of the Children Act 1989 is not absolute, prior to giving their evidence each of the witnesses can be given the relevant warning by the court. Further, in the unlikely event of an application by the police or CPS for a transcript of the evidence of the relevant witnesses, this court retains a discretion whether to permit the disclosure of such material to the police or CPS. Whilst it would not be appropriate to pre-judge any such application, were such an application to be made, then amongst the factors the court would have to take into account would be the fact that no findings were sought against the witnesses in question before this court, that the conclusions reached by the court regarding the witnesses' evidence do not amount to formal findings made by the court on the balance of probabilities and that, in appearing before the court the witnesses were just that, witnesses, and not interveners and represented before the court by a legal team. In addition, during the course of their evidence, the court will, of course, remain vigilant to ensure that the proceedings remain fair for the witnesses who are required to give evidence. In particular, the court can intervene if the counsel for the mother strays into areas of cross examination that are not appropriate having regard to the evidence before the court.’

This case is very fact specific, but it does raise the interesting point in relation to whether joining individuals who have findings sought against them in care proceedings, is necessary in cases where another parties’ case is effectively co-terminus with their case. Clearly every case needs to be treated on its own fact specific basis but this judgment does raise some interesting points in relation to proportionality.

Re Y (Children in Care: Change of Nationality) [2020] EWCA Civ 1038 is a case of particular note for local authorities who have children in their care who are not British nationals (a situation the writer has encountered on a number of occasions in certain geographical areas). Problems arise in these circumstances in cases where children who are not British nationals are made subject to care orders; this then raises issues relating to their immigration status and then extent to which an application for British nationalities is necessary. In this case the Court of Appeal considered the extent to which a local authority to apply to change a child’s nationality without the consent of a parent; in other words, whether the local authority could use its powers under s.33(3)(b) to override the wishes of a parent. The Court concluded that a change of a child’s nationality was a momentous step that required independent judicial scrutiny; in such cases the local authority will need to apply for permission from the High Court to make an application for a change of citizenship.

The Court of appeal did remind practitioners that local authorities in these cases, including;

-The provision of clear evidence as to the effect of the proposed plan upon the child, particularly whether a child was to lose his or her original nationality.

-A welfare evaluation considering Article 8.1 of the United Nations Convention on the Rights of the Child (1989), ( which notes that nationality is part one a child's identity, which should be respected and preserved)

-A welfare analysis of the disadvantages and benefits that might flow to the children from the loss of their nationality of birth.

-Consideration as to when would be the appropriate time to apply for a change of nationality (for example, when a child is of an age to provide their own views in relation to the same).

In light of the current restrictions imposed on contact, by the Covid-19 pandemic (something which I know many of us are profoundly uncomfortable with; the very idea of young parents having only facetime contact with new born babies goes against everything we have come to believe in), the Court of Appeal decision in D-S (Contact With Children In Care: Covid-19) [2020] EWCA Civ 1031 is of particular interest. The Court was considering an appeal from an application brought by a parent for contact with a child in care. Peter Jackson LJ eloquently summarises the law in this area as follows;

‘(1) The local authority is under a duty to allow the child reasonable contact with his parents: CA 1989 s.34 (1). It must also endeavour to promote contact between the child and his parents unless it is not reasonably practicable or consistent with his welfare: CA 1989 Sch 2 para. 15 (1).

(2) Where an application is made to the court, it may make such an order for contact as it considers appropriate: s.34 (3). When doing so, the child's welfare is its paramount consideration. It must have regard to the welfare checklist and it must not make any order unless it would be better for the child than making no order at all: CA 1989 s.1 (1), (3) and (5).’

In the instance of case (1), this is a decision for the local authority, whereas case (2) is one for the Court. In making a decision on this issue, the Court must consider all the information that is requires, and to reach its conclusion giving paramount consideration to a child’s best interests;

‘Once the court has formed its own view, it has a broad discretion as to whether or not to make a contact order. It may well decide, applying the 'no order' principle, not to make an order because its conclusion about what contact is appropriate is broadly equivalent to be contact that is being offered, or, for example, because the making of an order may lead to a loss of flexibility, or because practical considerations make an ideal level of contact unachievable. But the essential point is that the court must reach its own conclusion and ensure that it has the information it needs to do that. It does not defer to the local authority, and the local authority is no more entitled than any other party to the benefit of any doubt.

The appeal was allowed on the basis the judge had made a decision without key information in relation to the children’s individual circumstances, the local authority’s resources and the current government guidance. A point I would make is that in light of this authority, each case should be considered on a case by case basis and a implementation of any ‘blanket policy’ by a local authority, may well fall foul of basic principles of Administrative Law.

On a final note, although I said I would keep well away from the topic of remote hearings, I did find the judgment of the Court of Appeal in Re S (Vulnerable Parent: Intermediary) [2020] EWCA Civ 763 of interest, having myself encountered real difficulties in ensuring vulnerable clients with cognitive functioning issues are able to adequately engage in remote hearings.

I hope this update has been of some use and wish my readers and their families all the best- stay safe.

Michael jones