Chris Ferguson discusses: Judge underestimating judicial powers Re T (A Child) [2018] EWCA Civ 650

Re T (A Child) [2018] EWCA Civ 650

Judge underestimating judicial powers – should have called local authority to account

Care proceedings, on appeal from Birmingham, before LJs McFarlane, Jackson and Newey (28/3/18). This case had a complex family history. The child, still under 2, had been in foster care since birth. Ultimately the choice appeared to be between living with the paternal grandmother (PGM) under a care order or placement for adoption. The judge narrowly preferred the former, but the local authority (LA) had refused to approve PGM as a foster carer. Parties’ positions developed during the hearing. Eventually both parents supported PGM (who was a party) and the guardian (G) supported placement with PGM in care, but reserved her definitive position, recommending no final order till LA had reconsidered its care plan. G did not support PGM’s appeal.

LA filed an alternative care plan, which contained more detail of why PGM was not its preferred option, rather than available support services which the judge had sought. The judge found the risks involved in placing the child with PGM could be managed under a care order “for some years to come” (discounting other methods of placement with PGM) if LA provided “a higher than usual number of statutory visits, including unannounced visits, in order to… keep the grandmother on her toes” – quoted at para 18 of the appeal judgment.

The judge felt she did not have the power to compel LA to approve PGM as a foster-carer and that if the child could not live with PGM under a care order “then the only realistic option is likely to be placement for adoption.” The matter again went to LA’s Permanence Panel, who unanimously rejected PGM as a potential connected foster carer (para 20) albeit being unaware that the IRO did not agree with LA’s plan (para 32). The minutes showed that the social workers did not advance the court’s assessment, but contested it (para 21) The Agency Decision Maker then appeared effectively to rubber stamp this (para 22, 31 & 55).

Leave to appeal was sought on several grounds, but granted only on the basis that the test for adoption had not been met (para 30). The appeal court decided that the judge could have re-evaluated the remaining options or transferred the matter to the High Court (para 32) and sympathised with the argument that “Citing the decision in Hofstetter v LB Barnet and IRM [2009] EWHC 328… the judge should have taken the local authority to task for deficits in the approval process that showed little or no attention had been paid to the court’s judgment.” At para 36 the appeal court said there was “a feeling of unease at the idea that a local authority can effectively override what the court has decided on a welfare basis having heard and evaluated the evidence.” At para 39 the court quoted Thorpe LJ in Re CH (Care or Interim Care Order) [1998] 1 FLR 402 at 410, when he said “The interdisciplinary character of the family justice system emphasises the co-operation that should exist between the court and the public authority.” The court went on to say that “faced with a care plan that it does not consider to be in the interests of a child, the court is required to act assertively to achieve the right outcome” (para 40) and at para 41 quoted various paragraphs of Ryder LJ in Re W (A Child) (Care Proceedings: Court’s Function) [2013] EWCA Civ 1227 to illustrate the point that “A local authority cannot refuse to provide lawful and reasonable services that would be necessary to support the court’s decision because it disagrees with the decision or the court’s evaluations upon which the decision is based.” At para 54 the appeal court felt that wardship might even have been worth considering in the circumstances.

The court concluded (para 58) “The judge underestimated her powers. She should not have accepted the local authority’s unchanged position without calling it to account…she accepted the submission of the local authority…that the decision in relation to whether the child should be placed in the care of the grandmother was not a question for the court. It was.”

Christopher Ferguson has specialised in family law for several years. His extensive experience in private and public children’s law includes representing parents, extended family members, local authorities and children via guardians, including the Official Solicitor and the National Youth Advocacy Service.

Contact Christopher’s clerks

Claudine Cooper on 0113 202 8604

Paul Foster  on 0113 213 5209