This is a public children law update blog to give readers a snapshot of the important cases, issues and developments from September to November 2015. 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:
- Proceedings with an international element.
- Radicalisation guidance.
- Secure accommodation and deprivation of liberty.
- Local authority duty of care.
Proceedings with an international element
Children’s wishes and feelings are relevant to the question of transfer (Medway Council v JB and others)
In a case involving seven children, the older two children had expressed both verbally and through challenging behaviour, that they did not want to be cared for by their mother and did not want to go to Slovakia, where their mother had returned to during care proceedings. The younger children in contrast wanted to be in their mother’s care. The mother and the Slovakian Central Authority applied for the care proceedings to be transferred to the Slovakian courts under Article 15 of Brussels II Revised (2201/2003). The difference in the applications was that the mother only asked for the younger children’s cases to be transferred, while the Central Authority wanted all seven of the children’s cases to be transferred.
Determining the three questions required for an application for transfer, Macdonald J considered that each individual child’s wishes and feelings about the issue was a relevant to whether the other court was better placed to hear the case and whether a transfer was in the child’s best interests (in respect of forum). A child who is taken to another country against his expressed wishes and feelings is likely to lead to the child not co-operating and participating in the case and any necessary assessments. It would be arguable that the other court is not the better placed to hear the case and a transfer is not in the child’s best interests.
Child’s move to another member state significantly influences application to transfer (Re CK (Children) (Care proceedings, Habitual residence))
The Lithuanian Central Authority applied for the transfer of care proceedings concerning four children to the Lithuanian courts under Article 15 of Brussels II Revised. The children had long-term placement options in both England and Lithuania.
Moylan J considered (among other factors such as assessments and evidence) that whether the children would be moving permanently to the other member state can significantly influence a court’s answer to the questions about whether the other court is better placed to hear the case and whether a transfer is in the child’s best interests.
Non-consensual adoption of children with foreign citizenship is ECHR compliant (Re N (Children) (Adoption: Jurisdiction))
Munby P handed down a comprehensive judgment aimed at providing other member state central authorities and consular services with an understanding of English adoption law. The judgment clarifies that non-consensual adoption (adoption that the parents do not agree to) does not contravene the European Convention on Human Rights. Adoption is a statutory creation, which allows children with foreign citizenship to be adopted. The courts have the power to dispense with the consent of parents who are foreign nationals. He emphasised and repeated the need to notify relevant central authorities and embassies at the earliest opportunity to ensure transparency and allow early intervention.
The judgment goes on to determine that placement order applications cannot be transferred to another member state’s court under Article 15 of Brussels II Revised. A placement order application is a preparatory step towards adoption. However care proceedings with a care plan for adoption can be transferred.
Practitioners should also read the judgment for Munby P’s guidance in relation to the accommodation of children into local authority care under section 20 of the Children Act 1989. He provides guidance on how agreements should be drafted and clarifies a parent’s right to withdraw their consent at any time and have their child returned immediately.
President’s guidance on cases involving radicalisation (Radicalisation cases in the family courts)
Munby P clarifies the procedure for cases involving children who are being taken to Syria to join the Islamic State. The importance and sensitive nature of these cases mean that they must be heard by a High Court judge. Circuit judges sitting as High Court judges under section 9 of the Senior Courts Act 1981 must have permission from Munby P or the Family Division Liaison Judge for the area. The guidance provides the matters that a court must consider such as the need for a reporting restriction order and an anti-tipping-off order, the handling of disclosure requests and how to keep sensitive material secure.
Secure accommodation and deprivation of liberty
Secure accommodation is available for 16 year olds (Re P (Application for Secure Accommodation Order))
The case concerned a young person who exhibited self-harming behaviour and attempted suicide. Although she had been detained under section 3 of the Mental Health Act 1983 previously, mental health services were unwilling to provide the young person with further treatment and recommended that she be placed in secure accommodation. The behaviour that led to her detention was ongoing.
Although, the young person was eventually detained again for treatment under the Mental Health Act, there was a danger that the uncertainty of ongoing treatment would arise again. The court had to examine whether it was possible to make a secure accommodation order in respect of a 16 year old child. Previous case law was unclear. HHJ Bellamy concluded that secure accommodation was possible, as long as the young person is accommodated by the local authority under section 20(3) of the Children Act 1989 when extreme and urgent circumstances exist. Secure accommodation is not available and is prohibited if the child is accommodated under section 20(5) of the Children Act 1989, which provides the local authority only with a discretionary power to accommodate.
Deprivation of liberty of children in care must be court authorised under inherent jurisdiction (Re AB (A child: deprivation of liberty))
In cases where secure accommodation is inappropriate, but the looked after child requires constant supervision with his movements restricted, local authorities should be cautious about whether there is a deprivation of liberty, as described in the case of Cheshire West in respect of adults. In such cases, the local authority should apply to the High Court to invoke the inherent jurisdiction and have the deprivation authorised. It is not enough that a child’s care plan includes the restraints and this is approved by the court. The court must have the power to review such plans. This does not apply to a child who is not looked after and the deprivation is an exercise of parental responsibility by the child’s parents.
Local authority duty of care
There is no non-delegable duty owed to a child in foster care (NA v Nottinghamshire County Council)
The case concerned a woman who was previously in foster care due to her parents’ inadequate and negligent parenting. She was placed in two foster placements where she suffered physical abuse and sexual abuse. The Court of Appeal concluded that a local authority cannot be vicariously liable for assaults inflicted by foster carers on a child in their care. Foster carers are not local authority employees and are not under the local authority’s control in how they provide care to the child.
More importantly, the Court of Appeal also concluded that a local authority does not owe a non-delegable duty to protect the child from likely harm. A local authority’s duty was to provide accommodation. It was not disputed that Nottinghamshire had selected the foster carers carefully. It had therefore discharged this duty and there was no other duty owed to the child.
Foster carers provide the child with a family life. This is not a function that a local authority can provide. Foster carers are not employees and a local authority cannot micro-manage the care given, as this would defeat the object of providing the child with a relatively normal family life experience.