Public law children case update: December 2022
Laura Parker rounds up the latest public law children rulings of interest to practitioners.
Lancashire County Council v M and Ors [2022] EWHC 2900 (Fam)
An application for permission to withdraw care proceedings by a local authority which was opposed by the parents, given that the parents had also made a separate claim pursuant to s.7(1)(b) Human Rights Act 1998.
Summary
Hayden J granted permission to the local authority to withdraw care proceedings in relation to W, a 13-year-old with complex needs, despite this being opposed by the parents. The parents had submitted a claim under s.7(1)(b) Human Rights Act 1989, on the basis that the local authority is compromising W’s safety by implementing a care package where a burden is placed upon the parents; this claim ultimately fell away once the care proceedings were withdrawn, but the court confirmed that this was not a reason for proceedings to continue if threshold was not crossed.
Background
W is a 13-year-old child with complex needs and required care on a 2:1 ratio. Since June 2022, W has been at home everyday and has been staying overnight for at least 2 nights since August 2022. An interim care order was made on 11 March 2021; the basis for intervention in W’s life was due to the parents having a mistrustful and combative relationship with care staff which led to a deterioration in the mother’s health and her ability to care, as well as W becoming upset and self-harming.
An interim judgement was given by Hayden J in 2021 after the instruction of a chartered psychologist and psychotherapist; it was recognised by the expert that relationships between care professionals and parents can become inflamed and difficult but that systemic intervention would be helpful to move away from mutual blame to diminish sensitivities and optimise collaboration. Systemic intervention meetings took place between the parents and social worker, which proved to be constructive.
The parents brought a claim under s.7(1)(b) Human Rights Act 1989 on the basis that the local authority proposed to act in a way which is incompatible with the right to private and family life, by implementing a care package in which the burden placed on the parents generates a situation in which W's safety is compromised. The remedy sought by the parents was limited to seeking a declaration. The claim was brought within the Children Act proceedings to reinforce the fundamental importance of a sufficiently resourced care plan, in which the family is appropriately supported. It was submitted by the local authority that the parents’ strategy was to encourage the court to step away from any statutory basis into dictating how independent agencies should exercise their powers, applying pressure in relation to the allocation of resources.
Decision
Hayden J confirmed that when considering withdrawal of proceedings in care proceedings, applications to withdraw fall into two categories: where the threshold criteria is not met and whether it would be in the best interests of the child to withdraw proceedings. The court confirmed that the welfare checklist is a useful analytical framework for determining the merits of an application to withdraw proceedings.
Hayden J recognised that the systemic intervention between the parties had been constructive and it was accepted that the threshold criteria was not met. Due to this, the court confirmed that the parents’ claim would ultimately wilt away.
The court confirmed that it is fundamentally in W's interests that his parents should be entitled to take decisions for him unfettered by the intervention of the State and that W does not need to be subject to public law intervention.
A case concerning a 13-year-old girl with complex needs, where the court confirmed that it is not simply a rubber stamp on deprivation of liberty applications when the court is presented with minimal placement options.
Re J (Deprivation of Liberty: Hospital) [2022] EWFC 121
Summary
The court was faced with a deprivation of liberty application concerning J, a 13-year-old girl with complex needs, who had been housed in hospital for 3 months as there was no suitable alternative placement for her. The court confirmed that it is placed in a very difficult position when placement options are limited, as the court cannot direct that placements become available; the court is confronted with a ‘scandalous lack of provision.’
Background
J, a 13-year-old girl with complex needs, was made subject to an interim care order on 20 July 2022. The local authority had been unable to obtain accommodation for J and so J had been living in hospital for 3 months, despite having no physical or mental requirement for in-patient treatment. J’s presence in the hospital causes disruption for staff and patients, given the attention she requires and her behaviour.
The court had determined at seven previous hearings that it was necessary, proportionate and in J’s best interests to deprive her of her liberty within the hospital; on at least three occasions, this was due to the fact that there were no alternative accommodation options for J. On this occasion, the local authority had located a private property where a bespoke placement could be constructed for J, but would result in some delay for J as there would need to be further training for her carers.
Decision
Section 27A of the Care Planning, Placement and Case Review (England) Regulations 2010, as amended in 2021, confirm that it is lawful for a local authority to place a child in a hospital, however, the court still needs to be satisfied that it is necessary, proportionate and in a child's best interests for the authorisation of deprivation of liberty to be given.
Poole J confirmed that he would authorise the deprivation of J’s liberty by the use of restrictions at the hospital, on the basis that alternative bespoke arrangements would be available within a reasonable time; the court confirmed that the continued deprivation of J’s liberty would likely not have been authorised if there were no alternative options close at hand for J, as her continued deprivation of liberty would not be in her best interests. The court also confirmed that it was satisfied that J’s liberty should be deprived at the new bespoke placement.
Poole J then gave an overarching view on the difficulty faced by the courts when faced with a lack of placements for children with complex needs. The court cannot direct that placements become available, but equally the court is not simply a rubber stamp when confronted with a lack of options. Poole J stated that the courts were ultimately confined by the consequences of a ‘scandalous lack of provision.’
Laura Parker is a pupil barrister at St Mary’s Family Law Chambers.
