“Finally, the fourth ground – unlawful refusal of advocacy support – is also not arguable. In one of the few Defendant authority documents included in the bundle, the social worker recorded that: “It is agreed that [Mr R] will not have any involvement in the children’s care or plans. [Mr R] does not hold [Parental Responsibility] for either child and will not be given any information in relation to the children or parents own personal circumstances. The Local Authority hold a Care Order for [X…] and will take legal action to safeguard the children and by association parents from any breaches of any confidential information. Outcome: [Mr R] putting his own views and perspectives onto parents will not be tolerated and legal advice may be sought to obtain any necessary orders, to prevent any slander which diverts the focus away from the children and into adult issues. The focus is on the children’s welfare only. The Claimant has no legal right to the lay advocate of her choice in care planning procedures, especially if the local authority considers the chosen advocate is obstructive and undermining that process, as the Defendant authority clearly considers Mr R is. Even if he or the Claimant strongly disagree, that contested factual issue is inappropriate for judicial review. Given the Claimant’s impairment, perhaps a trained Mental Capacity Advocate should be considered. However, again, that is not an appropriate issue for judicial review. Finally, there may be some force in the Defendant authority’s concerns about Mr R, since from his own notes, he appears to have audio-recorded meetings (it is unclear whether with consent or not) and adopted a legalistic and combative stance, plainly at odds with the consultative approach appropriate for care planning. Moreover, he has presented four unarguable challenges about that process to the Administrative Court, including a complaint about his own status which a professional lawyer would probably have considered rendered him as having a conflict of interest with his client. For these reasons, in my view, Mr R is inappropriate to support the Claimant as even a McKenzie Friend at any reconsideration hearing at this claim, let alone to conduct the litigation for her, which may well be unlawful (unless of course, he can provide evidence of his regulatory authorisation to do so). In short, the arguments apparently presented by Mr R on behalf of the Claimant are not arguable, so I will refuse permission for her to claim judicial review. However, I refrain from certifying them totally without merit, in case with proper and professional support and expert advice, she has arguable challenges to the Defendant’s decision-making that do not have an alternative remedy in the Family Court. Since the local authority has not been troubled with responding on permission, there will be no order for costs. Of course, that may change if they are required to respond because the Claimant seeks oral renewal of her permission application.”
“(7) Ground 1(2) is a specific challenge to the lawfulness/legality of the placement continuing after expiry of the extension period provided by regulation 25 of the Regulations. This circumstance post-dates the decision in AC-2025-BHM-000203 and relates to continuing conduct. Further, the claim was brought promptly after the Claimant became aware that the extension period had expired. The Defendant does not dispute that the placement is unregulated. The summary grounds of resistance do not suggest any statutory basis for the continuation of the placement after expiry of the extension period but rather suggest mitigations and considerations that address the welfare of Child X. In light of the mandatory wording of regulation 25(2) and (6) of the Regulations I am satisfied that Ground 1(2) is arguable (though not the remainder of Ground 1 for the reasons above) (8) If the lawfulness/legality of the continuation of the placement is arguable, it follows that Ground 5 is similarly arguable because the qualified nature of Article 8 is such that interference with Article 8 rights by a public authority must be lawful.”
“The parties will be expected to address the Court at the start of the substantive hearing as to whether it is appropriate for the Court to hear and determine the claim in light of the child now having been removed from the contentious placement with the paternal aunt.”
“If the period of temporary approval and of any extension to that period expires and the connected person has not been approved as a local authority foster parent in accordance with the Fostering Services Regulations, the responsible authority must terminate the placement after first making other arrangements for C’s accommodation.”
“An outcome that suggests that the effect of the regulations is to thwart the court’s duty unders 1 of the Children Act 1989 begs the question whether the regulations are ultra vires. Although that point was raised in argument, it was not pursued and I express no view on it beyond saying that it is a matter of concern. In the light of numerous inquiries it is not surprising that the regulations are as strict as they are. Whether they were actually intended to have this effect, I do not know. One might perhaps regret that the power of the court to disapply the regulations was not included in these regulations as it had been in their predecessor, after, of course, due diligent enquiry by the court.”
“… if the Defendant is right, a local authority may continue a placement it itself recognises as unregulated after Regulation 25 expiry if it later says welfare justified doing so. That is not academic. 53. Nor is academicity a proper route to avoid deciding a contested point of statutory legality where the Defendant asks the Court to approve its conduct as lawful and where the issue concerns the statutory safeguards applicable to a looked-after child under 16.”