H, R (on the application of) v Kingston Upon Hull City Council [2013] EWHC 388 (Admin)

[2013] EWHC 388 (Admin)Case No CO 1368/2013
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Date 8 th April 2013
The Combined Court Centre
Lowgate
Kingston upon Hull
HU1 2EZ
Before
HIS HONOUR JUDGE JEREMY RICHARDSON QC
Between
R (on the application of H)ClaimantKINGSTON UPON HULL CITY COUNCILDefendantKS, AS, SS, TS and FSInterested Parties
Mr Brendan Roche (instructed by Sills and Betteridge Solicitors) for ClaimantMr David Phillips (instructed by Kingston upon Hull City Council) for DefendantMiss 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 Hearing dates: 22 nd and 25 th February 2013
JUDGMENT
[1]In this judicial review claim the mother of two young children (who are the subject of interim care orders) seeks to impugn the decision of a local authority to remove those children from the care of a family member into foster care without (as she alleges) any consultation or judicial approval for that course. This raises important issues relating to the inter-relationship of two distinct areas of public law: on one side – administrative law; and on the other – public family law (in particular care proceedings).[2]Two distinct issues arise:(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?[3]The short answer to the first question is a qualified “yes”. The qualification is that judicial review only obtains when there is no other appropriate remedy. Such a claim may succeed when it is shown the local authority has acted unlawfully.[4]The short answer to the second question is that there is a duty to consult with relevant family members and others, but the weight to be attached to the views of those individuals is for the local authority to determine.[5]These two short answers will be more fully expanded upon in this judgment.[6]The local authority in this case asserts it was in the process of consultation when events overtook that, and it was compelled to take immediate action to remove the children into foster care without further ado. Consequently, there were two decisions (both of which are challenged by the mother):(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.[7]As I shall come to explain I propose to grant declaratory relief to the mother that the decision of 31st January 2013 was unlawful; but, the decision of 1st February 2013 was lawful given the events of that day.

Summary of the Judicial Review Proceedings

[8]The claim in this case is brought by a mother of two young children, who are the subject of interim care orders, against a decision made by the local authority to remove the children from the care of a the paternal grandparents, without any court approval for that course or consultation. The children were removed one day later following an incident where the father of the children is alleged to have made threats. An urgent application for permission to apply for judicial review was made to Mr Justice Holman sitting in the Administrative Court in London. He consulted with me (as I was also sitting in the Administrative Court – but in Leeds). He decided the case would be speedily listed before me. I simultaneously arranged for the care proceedings (then in the Family Proceedings Court) to be transferred to me sitting in the Family Division of the High Court. Both cases were listed before me at Leeds within 3 days. I heard submissions and granted permission to apply. I also continued the interim care order and made certain other consequential orders within the care proceedings. The full judicial review application was heard two days later in the Administrative Court (sitting in Hull) and two days thereafter I announced my decision in a short judgment. I decided I would grant declaratory relief to the mother against the local authority in that it had acted unlawfully in certain material respects. I indicated I would give my full reasons for that decision in a reserved judgment to be given later. The precise form of declaratory relief would await this judgment.[9]The child-centric aspects of this case have been covered in the meanwhile by decisions in the concurrent Family Division proceedings.[10]This judgment gives my full reasons for granting declaratory relief to the mother. The precise terms of the relief is set out at paragraph 72 of this judgment (infra).

Anonymity

[11]I feel it is very important to camouflage the identities of the parties and other important players in this case as it concerns the welfare of infants whose case would ordinarily be heard in private family proceedings. I have already made an order in this case (heard in public) that the identities of the children and other family members are to remain anonymous. That order is to remain and I give a reminder that I would regard it as a serious contempt for it to be breached. The identities of the parties in the family proceedings are protected by operation of law.[12]I propose to divide this judgment in to the following sections for ease of reference:(1) Introduction(2) Summary of the Judicial Review Proceedings(3) Anonymity(4) The Facts(5) The Law(6) The Duty to Consult(7) Discussion in relation to this case(8) Conclusion[13]I shall set out the facts in this judgment in a way that camouflages the identity of the child and other parties. The precise facts of the case (and its ultimate resolution) will be covered in the family proceedings and not this court. I shall reveal enough to make the judgment intelligible. There is no harm by revealing the parties live in Hull and the relevant local authority under the Children Act 1989 is Kingston upon Hull City Council.

Dramatis Personae

[14]I shall commence my distillation of the facts by setting out the dramatis personae: 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)[15]The children have been represented throughout these proceedings by their guardian appointed by CAFCASS. Neither she nor any of the individual social workers need to be named in this judgment. It is important that I record at an early stage of this judgment the fact that, although I am shall be critical of the decisions of social workers and the LA generally, I have absolutely no doubt they believed they were making decisions that were in the best interests of the children. The issue in this case has been whether those decisions were lawful. The Facts The Backdrop

The Facts

[16]For the purposes of this judgment I do not need to recite the detailed allegations made by the LA against the mother and father in respect of their poor upbringing of the children. The nature of the assertions may be gleaned from a viability assessment of the grandparents (infra). If proved there can be little doubt statutory intervention would be warranted. That will be for the family court to decide in due course. There is ample evidence to warrant a court making an interim care order for each child.[17]The children lived with their parents in Hull (the precise location and circumstances are irrelevant for this case). The involvement of the LA prior to December 2012 need not be set out. On 12th December 2012 the LA commenced proceedings under section 31 of the Children Act 1989 in the Hull and Holderness Family Proceedings Court (FPC). The allegation was both parents had neglected the two children. The case was very much the sort of matter that would be well within the remit of the FPC. I very much doubt even the county court would have been troubled with this case (subject, of course, to any appellate proceedings) had the case followed a routine path.

The Family Proceedings Court

[18]The application by the LA for an interim care order (ICO) was heard by the FPC on 18th December 2012. The mother and father did not oppose the LA application. The issue for decision was where the children should live in the interim. In no circumstances was it to be with the parents. The LA was desirous of both children being placed in foster care. The parents felt their children should be placed with the grandparents – the paternal grandparents.[19]The FPC (composed of three Justices of the Peace) heard evidence from a social worker. Plainly, the FPC was concerned about the course proposed as the court requested reconsideration of the issue by the LA. After a short adjournment the LA indicated it would accept the children should be placed with the grandparents. It is pertinent to note the guardian of the children was not overly keen on the grandparents’ involvement and sought a tight protective package if the boys should be placed with them.

The FPC decision

[20]The FPC decision is of importance. The court recorded the following as part of its written reasons:
“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.” 21. 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).”
[21]It is plain from the written reasons of the FPC that they were not overly impressed with the way in which the LA case had been conducted. Whilst they were entirely satisfied that an ICO should be made and the children should not reside with the mother and father; they would only approve an interim care plan that embraced the children living with the grandparents subject to a “strong written agreement to ensure (their) safety”. In consequence the court made an ICO in respect of each child and a variety of other case management directions with a view to a case management conference hearing (CMC) on 24th January 2013.[22]It was implicit within the decision that the children would be placed with the grandparents under Regulation 24(1) of the Care Planning Placement and Care Review (England) Regulations 2010/959 (2010 Regulations). The children went to live with the grandparents. The LA commenced a viability assessment of the grandparents.[23]The CMC took place at the FPC on 24th January 2013. The viability assessment was not then completed and further directions were given with a view to a more purposeful hearing on 7th February 2013.[24]I should also record the guardian raised certain concerns about the care offered by the grandparents at a Looked After Children Review (LAC Review) in January 2013.

The Viability Assessment of the Grandparents

[25]The Viability Assessment of the grandparents was completed on 30th January 2013. It was undertaken by social workers of the LA. It is a document consisting of 40 pages. I do not intend to set out the matters which formed the basis of the analysis of the social workers, but the conclusion was not favourable to the grandparents.[26]The analysis may be summarised as follows:(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. 28. 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.”
[27]Thus, the stage was set for the LA to seek to remove the children and place them with approved foster carers under Regulation 25(6) of the 2010 Regulations. The LA decided to act at once. The LA records reveal:
“The (LA) have (ICO’s) in respect of both children who are in need of immediate care placement (to be placed together)”
(emphasis mine) 30. 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.[28]It is of considerable importance that the children’s guardian was not consulted about the decision to remove the children, nor was she consulted about the meeting scheduled for 1st February 2013 with the parents. There were certain logistical problems about contact as there was a change of guardian, but it appears little purposeful effort was made to contact CAFCASS.[29]Mr David Phillips for the LA has made strenuous efforts to persuade me that there was no decision made on 31st January 2013 to remove the children. I have considered his submissions with great care. I am unable to accept his submission on that issue.[30]Let there be no misunderstanding the LA made the decision to remove the children from their grandparents on 31st January 2013. That was not a proposal subject to negotiation or debate; it was a firm decision. The only consultation was for the purposes of implementation. The only consultation (more accurately information) was planned to be with the mother and father. They were to be informed of the decision and – one assumes – the grandparents would be informed thereafter. The guardian was not informed at all – certainly not until after the unhappy events I shall come to describe. It is unclear from the contemporary computer records when the LA intended to inform the guardian. There was discussion with the police, but no record of it.[31]The computer records of decisions do not contain minutes or any analysis of why decisions were made, any discussion or consideration of alternatives to the course decided upon. The decision to remove was in every sense unilateral.

The Riverside Incident

[32]On 1st February 2013 a meeting was arranged at the Riverside Centre to make the mother and father aware of the LA decision. It is noteworthy the grandparents were not at this meeting. This was an unhappy occasion and resulted in an outburst from the father culminating in him threatening to kidnap the children. It is important to record that the family court has made no findings as to whether the outburst occurred or the extent of it, if it did. For present purposes I shall assume some form of threat was made such as to cause the LA to act at once. A decision was made by the LA there and then to remove the children at once. The precise facts may well have to be investigated by the family court. The Administrative Court is not the appropriate forum for that factual dispute to be resolved.

The Immediate Removal Decision

[33]The grandparents were informed of the decision and the children removed from their care at 2.30pm that day. The police were even on stand-by. The grandmother, when told of the possibility of the father removing the children, indicated that was unlikely.[34]It would seem the children were removed from the care of the grandparents as there was (as adjudged by the LA) an immediate risk of significant harm to the children. The guardian was not consulted at any stage of this process.[35]In the result, the father did not come back to the home of the grandparents and took no steps to implement the alleged threat he made at the Riverside Centre.[36]The mother did not acquiesce in the decision for she immediately took advice. Judicial Review proceedings were instituted at once. The Judicial Review Proceedings.[37]The judicial review claim was commenced on 7th February 2013 in London by the mother against the decisions of the LA. The FPC hearing was scheduled for the same day. The FPC was advised of developments and removed the care proceedings to Kingston upon Hull County Court. The ICO’s were continued for that purpose. Given the nature of the case and the urgency of it, the written application for permission was placed before Mr Justice Holman on 11th February 2013 in London. He consulted with me as I was then sitting in the Administrative Court in Leeds. He directed a rolled-up hearing before me on 15th February 2013 at Leeds. I arranged for the care proceedings to be transferred to the Family Division of the High Court to be heard concurrently with the judicial review case.[38]It was both fortuitous and utterly coincidental I was sitting in the Administrative Court at that time and I happened to be a judge able to sit in the Family Division. Moreover, I was a judge based in Hull. Consequently, the case was able to be heard speedily and in a place convenient for all the parties (first at Leeds and then in Hull).[39]I granted permission to apply for judicial review on 15th February 2013 at Leeds at an oral hearing. Within the family proceedings I renewed the ICO’s for a limited period and directed the full hearing take place before me at Hull on 22nd February 2013. I heard full argument by all parties over one day and reflected upon the matter over the weekend.

The Judgment of 25th February 2013

[40]I gave a short judgment announcing my decision in which I set out the following:(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.[41]It was only after the commencement of the judicial review proceedings that the approval of any family court for the removal to foster care was given. In fact I heard argument in private within the care proceedings as to the correct course. I shall set that out – very briefly – in a short while.[42]In the result I decided that I would grant declaratory relief in the judicial review proceedings, but the precise form thereof would await this judgment.

The Care Proceedings

[43]I do not intend to set out what has been decided in the care proceedings. The case was proceeding in the High Court, but has now been removed to the County Court. It was thought the case could have been conveniently heard by the FPC, but given the various problems, I decided that the county court was the appropriate venue. Added to which, was an early date for the hearing could be achieved for the final hearing at the county court. I have also permitted an independent social worker to prepare a report.[44]The family case will now take its course. The matter is being handled by the county court.[45]I gave permission for the children to be placed in foster care, as to return them to the grandparents would have been wrong as events turned out. I feel it would be wrong to reveal any more details of the family proceedings. I shall now turn to the purely jurisprudential aspect of this case.

The Law

[46]It will be convenient if I commence this part of the judgment by a simple recitation of the key submissions of the parties. The mother (supported by the father and grandparents) submits the decision of 31st January 2013 by the LA was unlawful as there was no consultation and no court approval for the course. The LA had a duty to consult with all relevant players (regardless of their litigation status) before making the decision to remove the children from the residential care of their grandparents. This was not done and in consequence there was a failure to adhere to basics rights under Articles 6 and 8 of the convention that apply to a public authority. The simple point is the acts of the LA were unfair. It was further submitted the decision on 1st February 2013 to remove the children immediately was likewise unlawful. The guardian supported the basic legal argument and was particularly critical of the LA by not consulting with her before making any decision having regard to the basis of the FPC decision and its reasoning. There is a duty – it was argued – for the LA to consult and listen to the guardian. The LA accepted the basic propositions of law that they ordinarily should consult, but may act swiftly when there is a real need and child safety demands that course. The LA argued that – upon the facts – they were in the process of consulting the parties when the father acted irrationally at the Riverside Incident forcing the LA to act swiftly to protect the children from the risk of kidnap by the father (as he threatened). The principal argument of the LA did not relate to the applicable law – rather more the application of it to their view of the facts. The LA emphasised the point that local authorities have, on occasion, to exercise the power to act swiftly without all due consultation when child safety is engaged in an urgent case.[47]It will be appreciated I have greatly abbreviated the arguments advanced by counsel, but I trust they will all forgive me for the distillation in order to avoid lengthening this judgment.[48]I now turn to my analysis of the situation. All statutory references hereafter are to the Children Act 1989 (the 1989 Act).[49]When any court determines any question in relation to the upbringing of a child the paramount consideration is the welfare of that child (section 1 of the 1989 Act). That principal must govern all child centric decisions in this context. Parental responsibility is invested in parents by reason of section 2 (or the mother when the parents were not married and the father has not acquired it). Even when a full care order is made under section 31 of the 1989 Act the parental responsibility for a child invested in a parent is not extinguished but shared – albeit the court invests parental responsibility in the local authority and it may determine the extent to which the parent may meet his or her parental responsibility (see section 33(3) of the 1989 Act). The local authority is in a pivotal position once the care order is made under section 31.[50]An interim care order is exactly what it says – interim; and does not bring in its wake all that flows from a final order. An ICO may only be made when a court is satisfied that there are reasonable grounds for believing the basis for making a care or supervision order are present. In short terms the full case for a care order does not have to be established – simply reasonable grounds for believing that position exists. A wholly separate question arises in many cases whether removal from the parent is justified. There is much Court of Appeal authority upon that which I have no intention of setting out, but essentially the court considering such a course must:(i) only do as much as is really necessary to secure the safety of a child;(ii) only decide what really needs to be decided at the interim stage (as the concept is purely to hold the ring until the full hearing); and(iii) only remove a child if it appears truly necessary to do so in the interests of the child’s safety. The interim care proceedings are not a dress rehearsal for the final hearing. An ICO is an interim protective order and requires renewal from time to time under the present statutory arrangements. That does not mean regular reappraisal of the living arrangements, but it does mean the court is keeping a watchful eye on developments. The interim process of care proceedings is judicially controlled and the more so with the advent of recent family justice reforms. I feel it always needs to be remembered that the removal of any child from a parent is a very serious step that should never be made lightly. That similarly applies to the removal of a child from another family member to a foster carer. These observations are particularly significant when such a course is postulated prior to full investigation at a final hearing.[51]There can be no doubt that Articles 6 and 8 of the European Convention on Fundamental Freedoms and HumanRights 1951 (the Convention) are engaged when an application for an ICO is made – and all the more so when removal is in issue. This issue was addressed by the Court of Appeal in Re S (Care Proceedings: Human Rights) [2010] EWCA Civ 1383 [2012] 2 FLR 2009, where Sir Nicholas Wall P (with whom Arden LJ and Wilson LJ, as he then was, agreed) said that a useful formulation of the test to be applied in questions of removal was: whether the removal or continued removal of the child from the care of his or her parent(s) is proportionate to the risk of harm to which he or she will be exposed if the child is allowed to remain or return to parental care [see paragraphs 8 and 9 of the judgment]. The articulation of the test by the President in Re S is a valuable lodestar for courts deciding whether an ICO should be made and removal countenanced. It will be understood that making an interim order when not all is known about the family dynamic is one of the most difficult decisions a family court is asked to make (particularly when removal of a child from a parent or other family member is proposed). There is a volume of Convention jurisprudence which emphasises the invasive and draconian nature of an ICO and removal of a child from the family.[52]When an ICO is made the local authority and the parent share parental responsibility for the child – albeit the local authority is usually the one in the driving seat particularly when removal has been sanctioned. This plainly does not mean the parents or others are of little or no consequence. Although the local authority may be driving the vehicle, on a journey approved by the court, it does not mean it is able to ignore the views of the passengers as to the route to follow. There needs to be consultation; and concurrence (if possible). The consultation must be genuine and not merely a process whereby decisions are merely the subject of information to parents. I repeat a parent with parental responsibility does not surrender that when an ICO is made, nor when removal is permitted by the court. The weight to be attached to the views of parents and others is a different question. A local authority must always work in a carefully calibrated manner and act in a proportionate way commensurate with the issues involved and those involved. Calibration and proportionality are highly fact specific. The level and manner of consultation with one family will inevitably differ to that of another family depending on the issues and circumstances. The weight to be attached to the views of a father who murdered the mother of his child is likely to be rather less (if any) to be attached to the views of grandparents who are looking after a child in a difficult family situation. A sense of reality and a sense of proportion are key to the concept of consultation; however, consultation there must be, save in exceptional circumstances where child safety or other pressing reasons are present. I should also add that proper records are an essential aspect of consultation and decision-making.[53]During the course of argument I was referred to the case of Re G (Care: Challenge to Local Authority Decision) [2003] EWHC 551 (Fam) which was a decision of Munby J (as he then was: now the President) involving a challenge to a decision of a local authority to remove a child from parents after a final care order was made. Munby J reviewed the convention cases and domestic law in a comprehensive judgment which has continuing relevance. He drew attention to the fact that social workers (in 2003 when the Human Rights Act 1998 was still in comparative infancy) needed to be more aware of its terms and import (see paragraph 3 of the judgment). Given the events of this case that is a paragraph that needs repetition. Let there be no misunderstanding: the convention applies to local authorities in respect of their decision making in care cases and all social workers need to be alive to its provisions and import; moreover they must apply the convention. The texture of decision-making needs to have the weave of the convention visible and palpable.[54]In my judgment it is possible to distil the relevant law in the following way by reference to the expansive and helpful judgment of Munby J in Re G which has resonance today in this case. I particularly call attention to paragraphs 28 to 55 of the judgment which I say, with profound respect, were both learned and graphical – making it all the more readable. The distillation of relevant considerations applicable to the facts of this case are:(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.[55]The passage of the judgment at paragraph 36 is apposite to this case:
“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.”
[56]There have not been – in so far that counsel and I have been able to determine – any reported case of judicial review proceedings in relation to ICO’s. It was felt by counsel – and I am inclined to agree – that challenges whilst care proceedings are in train are usually made within the confines of the family court when an application to revoke the ICO is made or a renewal application is made. Ordinarily, the Administrative Court will not countenance judicial review proceedings when there is an alternative remedy – especially so when that alternative is a judicial remedy. However, that does not mean that judicial review cannot apply to decisions made by local authorities whilst care proceedings are in train. I am of the view that there are limited – perhaps very limited circumstances – where an application can be made justly. This would be so when a person affected by a decision is not actually a party to the care proceedings and might not have a sufficiently good reason to be made an intervener in those proceedings. It might equally apply where (as here) a party (the mother) does not wish to challenge the basis of the ICO, but merely a decision made by the LA as to its implementation. It may be that a local authority has reached a conclusion in respect of which it refuses to alter (despite the request of the family court). All the family court can do is to exhort (it usually works – but it does not always) or revoke the ICO. The family court is not exercising the jurisdiction of the High Court in, the now infrequently used, wardship procedure where by the court makes all important decisions about all aspects of a child’s life as used to be the case. In my judgment the circumstances whereby judicial review is applicable whilst care proceedings are in progress (and there is an extant ICO) are likely to be rare and distinctly fact specific. The Administrative Court is very alive to the concept of an alternative remedy.[57]In this case the immediate removal decision made on 1st February 2013 has been the subject of discussion and resolution in the family proceedings. In this case the mother, father and grandparents seek to have quashed the decision made the day before which was not made in anguished circumstances. It is that decision which is the real target of their artillery.

The Duty to Consult

[58]I have made it clear that there is a duty upon a local authority to consult with all affected parties before a decision is reached upon important aspects of the life of a child whilst an ICO is in force. I have been shown the guidance issued by HM Government to local authorities in 2010 [The Children Act 1989 Guidance and Regulations] where there is valuable material available to social workers about how to approach their difficult task in this regard. Paragraph 1.5 provides (inter alia):
“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.” 62. Further: “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.”
[59]Whilst it is not spelled-out quite as starkly as perhaps it should, there is contained therein a plain message that a local authority must consult and, in my judgment, that is even more crucial during the interim phase of proceedings when final decisions as to the threshold criteria and outcome have not been made by a court. The question as to whom the local authority needs to consult is distinctly fact specific. In my judgment that should ordinarily include the parents. If capacity is in issue or there are safety issues or other genuinely powerful reasons not to embrace them, then different considerations apply. It should also embrace the guardian (if appointed and available). It should also embrace any other family member who has a material interest in the children. This would include a family member who may be caring for a child or otherwise closely concerned with the child. This frequently involves grandparents who step-in to help.[60]The weight to be attached to the input of parents and others is for the local authority to judge – it may be no weight at all may be attached depending on the circumstances – but there needs to be consultation about fundamental decisions. Moreover, the concept of consultation does not mean concurrence at one end of the spectrum; nor information at the other. The “others” who need to be consulted may have a valuable contribution that might alter the proposal of the local authority. It does not mean the parents and other parties must concur with the proposal before it can be implemented. There can be no veto or casting vote. Equally, the parents and other parties are not mere vassals to whom information is given and nothing more.[61]It has to be acknowledged that there will be decisions to be made in some cases where it is impossible to engage with parties or even to consult where the local authority must act speedily in the interests of child safety and protection. When this is done there must be clear reasons for this and the decision must be objectively reasonable and justifiable. Such a decision needs careful justification and calibration. A full note of the reason for such an exceptional course must be made.[62]During the pre-final hearing stage (the interim phase of the case) the family court will be monitoring developments and where there is a fundamental disagreement as to an important decision, the parties need to have the issue adjudicated upon. This is of critical importance where the court has made an ICO upon a particular premise and that is to be changed, and changed where there is no agreement. Unless there a real need for an urgent decision (on proper grounds of child safety or protection) the family court should ordinarily be involved. The interim phase of care proceedings is now under even tighter judicial control than hitherto. I cannot emphasise enough the local authority is not allowed to act unilaterally upon important matters affecting a child in its interim care without proper consultation save in exceptional circumstances. There must be proper consultation and judicial input when there is a contested proposal. It must be equally emphasised that local authorities must act speedily and without express approval if exceptional circumstances obtain. The weight to be attached to the views of those consulted is a matter for the judgment of the local authority in whom trust for the management of the ICO has been reposed by the court.[63]It has to be accepted the family court during the interim phase is not required to consider the care plan (interim care plan) as it is required to do when a final order is made [see section 31(3A) and section 31A(5) of the 1989 Act]. In the ordinary course of events it does, although such documents are not usually fully-formed texts – rather more work in progress. In my view it is all the more important that the case should be restored before the family court speedily if the basis upon which the ICO was made or approved (whether in an interim care plan or otherwise) is to be fundamentally altered and there is opposition to that course. This does not mean every decision has to be returned to court following consultation – this is not after all, wardship – but where there is a truly different decision to be implemented, then that does require the imprimatur of the family court in order to comply with substantive and procedural demands of Articles 6 and 8 before it is implemented. Furthermore: in simple parlance – it is just elementary fairness.

Discussion in relation to this case

[64]In this case there are two important factors (which I believe the LA have tried to play down):(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.[65]The grandparents were not consulted. The guardian was not consulted – although I accept there were certain logistical problems on 31st January and 1st February 2013 about this – but why was it vital to implement this proposal at once? There was no plan to engage the court until the next hearing, by which time the LA hoped the new plan would be in place. There was no suggestion the grandparents were failing to implement the agreement reached with the LA after the ICO’s were made. It is argued it was an irrational decision and one made without any consultation – let alone adequate consultation.[66]I have been much influenced by the submissions of Mr Simon Hirst for the guardian in addition to the basic propositions advanced by Mr Brendan Roche for the mother. These submissions were echoed by Miss Naomi Madderson and Miss Joanne Jenkins too by reference to their own lay clients.[67]Let me consider the position on the facts as they appear:(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[68]The meeting with the parents the day after the decision was not consultation at all. It was a process of disseminating information about a decision that had already been made. It all went wrong. Indeed, the longest entries on the computer system relate to the very unhappy meeting where threats were allegedly issued by the father (never implemented or even half-heartedly pursued). Nevertheless, the LA forcefully assert they were uttered and, in my judgment, had to take them seriously at that time. Consequently, I am unable to criticise the LA for acting as they did on 1st February 2013. This situation should have been avoided and probably could have been had there been proper consultation or alternative strategies considered; but having created the situation without justification, the LA were faced with a potential crisis and acted as many local authorities would have done. The action taken on 1st February 2013 – post paternal threats – was not an irrational or unreasonable decision. The LA was entitled to take urgent action to deal with what they reasonably believed to be a credible threat. This could all have been avoided had it take steps to consult as it should. This aspect of the matter has been the subject of consideration by the family court. Even though the guardian was critical of the original decision on 31st January 2013 made without consultation, she was supportive of maintaining the foster placement given what happened. She was also supportive of removal – but in a more collaborative and timely way conducive to the welfare interests of the children. This was not done and reveals the true importance of proper consultation. It is not just a concept beloved of lawyers, but it is of deep practical importance to the welfare of the children in question.[69]I have been critical of the absence of records of the decision making process. There is a plain duty to keep adequate records and this has been articulated by the courts repeatedly. Procedural and other common fairness dictates this should be so. I take the view there have been lamentable failures by the LA in this case to maintain adequate records of the route they took to reach a fundamental decision. The paucity of records or analysis reveals the absence of underpinning and support for the major decision taken in relation to the two very young boys in this case.[70]There was no consultation in respect of the decision taken to remove the boys on 31st January 2013. It is as simple as that; and that was unlawful.[71]I have considered whether the mother or any other party to these proceedings had an alternative remedy in the family court. By the time the emergency decision was taken on 1st February 2013 (which I have adjudged to be reasonable and thereby lawful) there was little that could be done in the family courts as the catalyst for that (the unlawful decision of 31st January 2013) had been overtaken. All the family court could do was to either approve the removal or revoke the ICO’s. It is not normally the function of the FPC or any family court to opine in public on the lawfulness of historic decisions that were overtaken by events. I considered whether these proceedings were in truth academic, but in the result I formed the view that the decision made by the LA was of such a character (and was in the result so wrong) that it merited judicial review. The actual decision (which was comprehensively unlawful) was overtaken by events; but had it been able to be quashed in the sense it remained operational, it would have merited that course. The decision taken by the LA on 31st January 2013 was unlawful and gave rise to a very unhappy sequence of events that could and should have been avoided. There was no other means than judicial review proceedings to have that decision made the subject of adverse adjudication. The operational decisions (stemming from the unlawful decision but made for good reasons as events turned out) have been the subject of consideration in the family court. The practical side of events created by the unlawful decision has been handled by the family court. This court is entitled to adjudicate upon the lawfulness of the original decision and had there been any meaningful way by which that decision could have been quashed I would have taken it. In the result, I feel, the only proper course is to grant declaratory relief.

Conclusion

[72]Accordingly, I will grant declaratory relief. There is a viable argument that I should quash the decision of 31st January 2013. However, as matters are now being closely monitored by the family court, I feel that course is not merited. There needs to be a clear declaration of unlawfulness of the decision of 31st January 2013 in a narrative form which camouflages the identity of the parties. Counsel for all parties have considered this judgment in draft form and, having received their assistance, I propose to grant the following declaration:(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.[73]This case serves as a useful reminder of the need of all local authorities to consult meaningfully and not engage in unilateral decision-making. Had there been consultation in this case the unhappy Riverside Incident would have been in all likelihood avoided and it may have been possible to have found a route whereby the children could have remained with the grandparents (with additional safeguards) or for removal to have been effected in a much more seemly and kindly way for the children. The mess created in this case was the sole responsibility of the LA.[74]My answer to the first question I posed at the outset of this judgment is a qualified “yes” (see paragraph 2(1) supra). This case must not be seen as a vehicle for encouraging judicial review applications when ICO’s are operational. Usually the appropriate remedy is for the family court to control the situation, but there are unusual situations (and this is one) where the actual decision sought to be impugned cannot effectively be made the subject of review in family proceedings. This may well be (as here) where other events have overtaken. In many respects this case is exceptional. I hope it remains so.[75]For the reasons I have given I am satisfied, when an ICO is in force, there is a plain duty upon a local authority to consult with all closely involved parties, but the weight to be attached to the views expressed is a matter for the judgment of the local authority. Furthermore, when there is a dispute the issue must be returned to the family court for resolution.[76]It would not be right for me to leave this case without expressing my thanks to all counsel for their submissions and to all solicitors for preparing the bundles. It was all done with commendable speed and thoroughness. I am truly grateful to all concerned.[77]Accordingly, I shall issue the declaration and other consequential orders.