This is a public children law update blog to give readers a snapshot of the important cases, issues and developments from December 2015 to February 2016. Please feel free to submit a comment below or send us an Ask query if you have any views on the cases, issues, or legal developments that are covered or if you think we have missed something that should be brought to the attention of child care law practitioners.
In this post, we look at the following:
- Special guardianship reports.
- Use of the inherent jurisdiction of the High Court.
- Deprivation of liberty.
Special guardianship reports
Additional information required in special guardianship reports (Special Guardianship (Amendment) Regulations 2016)
The government’s review on how special guardianship has been working over the past ten years since its introduction, revealed concerns about children being placed with unknown relatives. The aim of keeping the child in the birth family carried too much weight when evaluating the child’s welfare. Special guardianship reports were criticised as containing an insufficient assessment of the relationship between the child and the family member and the ability of the relative to provide care until the child attained the age of 18.
The government’s response was to bring immediate amendments to the requirements for special guardianship reports under the Schedule to the Special Guardianship Regulations 2005. Special guardianship reports filed after 29 February 2016 must include an assessment of:
- Harm that the child has suffered.
- Risk of harm in the future from the child’s parents and others.
- Child’s current and future needs.
- Relationship between the special guardian and the child.
- Special guardian’s ability to meet the child’s needs and protect the child from the identified risk of harm until the child turns 18.
Use of the inherent jurisdiction of the High Court
When the threshold criteria may not be met and the future uncertain (Re S (Wardship))
The creative and flexible way that the inherent jurisdiction of the High Court can be invoked was demonstrated in this case. The circumstances involved a child, whose mother became disabled and unable to care after she suffered a stroke and her life expectancy was shortened to within the child’s minority. The child’s father lived in Poland and had not seen or been in communication with the child for some years. After the mother had suffered her stroke, the child and the mother were cared for by the mother’s partner. However, the partner was an overstayer whose application for leave to remain had been refused and therefore at risk of being deported.
The local authority applied for an interim care order on the basis that the child was at risk of suffering significant harm when the mother passes away and because of the uncertainty around who will be providing care for him. The mother’s partner made an application for a child arrangements order so that he could have parental responsibility for the child and could continue to provide the care he had been giving. The father wanted the child to be in his care, although he recognised that the child had little relationship with him at this time.
HHJ Atkinson made the child a ward of court. The child had not suffered any significant harm. If managed well, the child may not suffer significant harm when his mother passes away. How the situation should be managed was the tricky part and required ongoing assessment and planning. Given the partner’s uncertain immigration situation and the need for the father to rebuild his relationship with the child, making the child a ward of court provided a vehicle for monitoring the situation and ensuring the child is provided with support when required.
Local authorities cannot seek the return of a child under inherent jurisdiction if it does not have or seek parental responsibility (Re SA (A Child) (Inherent Jurisdiction: Local authority))
The local authority (LA) sought the return of the child (S), who had been taken to St Kitts by his mother for a seven-week long Christmas holiday, after S’s older brother (R) had alleged that the father had physically assaulted him. R had been taken into police protection. The family had previously been involved with children’s services due to concerns with the neglect that the older siblings had suffered. The parents could not cope with caring for teenage children. As S was younger, the LA did not consider her to be suffering harm and therefore only applied for an interim supervision order. The LA did not seek to share parental responsibility (PR) and did not seek to remove S from her parents. However, the LA wanted S back in England to participate in assessments and the care proceedings.
The application to invoke the inherent jurisdiction of the High Court to compel S’s return to England was refused. In cases where the LA has or seeks an interim care order to share PR and have the child placed in foster care, an order for the child’s return has the purpose of achieving the aim of the care plan and protect the child from the significant harm. The LA’s position in this case cannot satisfy the condition required under section 100(4)(b) of the Children Act 1989 that unless the inherent jurisdiction is exercised the child is likely to suffer significant harm.
LAs should be aware of this statutory limit to the High Court’s powers and the need to be clear about the purpose of an order for return.
Deprivation of liberty
Parents cannot consent to their 16+ year old child’s confinement (Birmingham City Council v D (by his litigation friend, the Official Solicitor) and others)
This case follows on from Re D (A child: deprivation of liberty), when the child (D) was 15 years old. At that time, Keehan J decided that a parent can exercise their parental responsibility (PR) to give valid consent for the confinement of their child when such confinement is in the child’s best interests. The confinement would not be a deprivation of liberty requiring the court’s authorisation.
D has turned 16 years old and has been moved into accommodation that all parties agreed is a confinement. The doors to the placement are locked and D received one-to-one support throughout the day and night while awake. The issues were whether D’s parents can continue to give valid consent to the confinement, now that D is 16 years old, and whether the parents’ consent for D’s accommodation under section 20 of the Children Act 1989 made the placement not imputable to the state. If the answer to both were in the positive, there would not be a deprivation of liberty.
Keehan J examined various international conventions and the fact that Parliament deliberately allowed cases concerning 16 and 17 year olds to be brought before the Court of Protection. He concluded that young people who are 16 and 17 years old had a different status to children aged 15 years and below. They were assumed to be more mature and have the capacity to make decisions in relation to their personal welfare. Their autonomy should be given greater respect. Parents cannot give substituted valid consent to confinement and the placement will be a deprivation of liberty. It is therefore necessary to apply to the Court of Protection for authorisation.
Local authorities cannot escape its duty to bring such applications even if the arrangements are made privately. A local authority is under a positive obligation to investigate potential deprivations of liberty and act to protect the vulnerable person if required.