Fact-finding, placing for adoption and other issues – a case review 2009
In the first of a two-part series, Valerie Sterling looks at the key cases in the children and care field in 2009.
Re FH (Dispensing with fact-finding hearing) (2009) 1 FLR 349 CA
This case is of interest because a local authority successfully appealed a trial judge’s decision in care proceedings not to hold a fact-finding hearing; and the appeal court said that the possibility of imminent criminal proceedings against the alleged perpetrator of abuse was not a matter which “should have helped to dissuade the judge from conducting the fact-finding hearing”. (Per Wilson LJ at para 30).
“The judge should weigh, with appropriate respect, the previous decision that the exercise should be undertaken and should ask whether any fresh circumstances, or at least any circumstances freshly discovered, should lead her or him to depart from the chosen forensic course.” (para 26)
What had to be avoided “at all costs” was a “sudden decision to abort the hearing in circumstances in which, later, the findings not then made might after all be considered to be necessary”. (para 26)
Re S (Placement Order: Revocation) (2009) 1 FLR 503 CA
This case considers when a child is ‘placed for adoption’ within the meaning of s 18 (5) (a) of the Adoption and Children Act 2002.
The background is that a mother (M) had applied pursuant to s 24 of the ACA for leave to revoke a placement order in respect of her son (L) which application was refused by the trial judge on the ground that L had already been placed for adoption.
There had been a care order in 2003 and a placement order in 2006 but L’s placement with prospective adopters had unfortunately fallen through. On 14 July 2007, he had been moved to a therapeutic foster family who “had not precluded the possibility of adopting the child in the future, but had not made a specific commitment”. (See headnote).
On 11 October 2007, M applied to revoke the placement order, asserting wide changes of circumstance which she said justified her reconsideration as her son’s carer.
The judge found that L had been ‘placed’ for adoption and refused M’s application.
M’s appeal was allowed, it being held that the judge had reached the wrong conclusion on a point of law.
S 18 (5) of the ACA required the court to focus on a ‘prospective’ adopter rather than on a ‘potential’ adopter and the judge had been focusing on the wrong adjective.
“The reality is that L, on and after 14 July 2007, was placed with the carer under the fostering regulations and not under the placement regulations, the adoption regulations. In those circumstances, the local authority had sole parental responsibility for L.” (per Thorpe LJ at para 8).
A child is not “placed for adoption” within the meaning of s 24 (2) (b) of the ACA merely because the current foster carer(s) may be interested in adopting him.
G v N County Council (2009) 1 FLR 774 McFarlane J
This case concerns a High Court human rights challenge to a local authority decision-making process.
The background is that four of the parents’ six children lived with the maternal grandmother under a residence order. The fifth child (A) had been the subject of a care order on 26.2.03 when he was two, a detailed care plan providing for him remaining in his parents’ care requiring the parents’ cooperation and the ensuring of his basic needs. A sixth child (B) born in August 2004 stayed in his parents’ care without direct local authority involvement.
In about May 2007, the parents separated and a Looked After Children Review of 16 January 2008 identified that “a picture of neglect appears to be emerging”.
On 28 February 2008, Social Services wrote to M about A’s poor school attendance, followed by another letter to M on 14 March 2008.
Social work professionals held a meeting on 14 March 2008 and the original plan was to remove both boys simultaneously from their mother’s care, after a meeting with M on 25 March 2008.
There then followed a LAC review on 19 March 2008 when the reviewing officer expressed concern that A now aged six was not being removed sooner “given the hostile and neglectful situation he is currently living in”. After discussions with the team leader the next day the LA changed its plan and decided to remove A from school that very afternoon.
“The mother was not told of the plan to remove and was not told that A had been removed from the school until 3.42pm that afternoon when she was telephoned, told of the removal and given brief reasons.” (Para 12)
M’s solicitors issued proceedings under the Human Rights Act 1998 alleging that the procedure adopted by the authority and the decision to remove the child were unlawful in that they breached M’s human rights. M also sought an injunction requiring the child to be returned to her care immediately.
Mr Justice McFarlane made a declaration that the local authority’s process had been unlawful but he refused to grant an interim injunction requiring the child to be returned to the mother’s care.
It was held that on the basis of the CA decision in Re W (Children) (Care: Interference with Family Life) (2005) 2 FLR 1022, the mother’s legal advisers had been entirely right to issue a Human Rights Act 1998 challenge to the removal decision and an application to discharge the care order would not have been the appropriate method of challenge.
“In short, the actions of the local authority, notwithstanding the existence of a care order in a case such as this, must be in accordance with the law, must be proportionate to the level of concern and the issues in the case, must be procedurally fair, and must involve the parent in the decision-making process.” (Per McFarlane J at para 26).
D v Buckinghamshire County Council (2009) 1 FLR 881 CA
This case deals with the disclosure of findings in care proceedings to a relevant statutory body.
Disclosure was limited to one agency in this case, namely the Department for Children, Schools and Families (DCSF). Information disclosed to all other recipients was ordered to be returned and its deletion from any form of storage.
Hedley J (p 890) found that there was “real and cogent evidence of a pressing need” to disclose the facts to the DCSF.
Valerie Sterling is a barrister at Park Court Chambers in Leeds.
http://www.parkcourtchambers.co.uk/profiles/Valerie-Sterling.asp
