Case Law and Legal Summaries
Case Law and Legal Summaries: monthly overview and analysis of selected public law cases, highlighting implications and recommendations for practice.
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Case 1 considers late disclosure of material by the police and gives advice as to how such problems could be avoided in the future.
Case 2 concerns a successful appeal brought by the local authority against an order dismissing their application for care orders in respect of five children, aged between one and sixteen years. The judge had considered that the local authority had not discharged the burden of proof based on percentage possibilities or probabilities.
In case 3 Sir James Munby makes a final judgment relating to seven children in respect of deprivation of liberty (DoL). This case covers the issues relating to the transfer of DoL cases to the Court of Protection once the child reaches sixteen and suggests changes to the social work statement and template letter in DoL cases.
Case 4 is an appeal regarding a dismissal of an application of a care order on the basis that the threshold for intervention had not been met. The Family Court judge limited his consideration to the way in which the mother had behaved while in a mother and baby placement and excluded evidence concerning events that took place before the placement.
Case 5 is a long and convoluted case with significant implications for the child’s permanence. Learning for practitioners include management strategies when birth relatives’ disengage with proceedings and assessments.
Case 6 is an appeal against a court’s refusal to make placement orders in relation to three very young children. Instead the judge had ruled that the sisters should remain in foster care throughout their childhoods. The Court of Appeal was critical of the fact that the Family Court judge had not balanced the advantages of adoption and the disadvantages of long term fostering.
Section 20 (s.20) accommodation by a local authority, under the Children Act 1989, may have an appropriate role to play as a short term measure in a Child Protection case where care proceedings are otherwise justified. Prolonged provision under s.20, without commencing care proceedings, is likely to be a misuse of the local authority’s powers rendering such practice unacceptable and subject to judicial criticism. The four cases summarised below address the following key issues in relation to s.20:
- Capacity of a parent to consent to s.20 voluntary accommodation. Hedley J guidance in Re CA
- S.20 written agreements. Re N
- Highlights the exact wording of s.20(7) of the 1989 Act: the word ‘objects’ as opposed to ‘consents’ is specified. Re Williams
- Reviews appropriate and inappropriate use of s.20 accommodation. Re AB
This month we summarise case law relevant to care planning for children. Since Re B (a Child)  UKSC 33, case law has refined the situations in which adoption should be the plan for a child and how evidence presented to court must address all “the options which are realistically possible” for long term care. We focus on Re B-S and subsequent case law which further explored the definition of ‘realistic options’, the use of the welfare checklist and the meaning of the term “nothing else will do”. This month’s issue includes summaries of:
- Overall recommendations for practitioners involved in permanence planning for children following case law
- Re B  which brought to the forefront the expressions ‘nothing else will do’ and ‘last resort’ when practitioners are considering adoption for a child.
- The main implications for practice of Re B-S 
- Re R (A child) , exploring the landscape post Re B-S and clarification of the term ‘realistic options’
- Re S (a Child)  and clarity around ruling out unrealistic options without considering the welfare checklist. This appeal considered whether or not the judge was justified in ruling out the child’s paternal grandmother as a realistic option for the child’s long term care, despite the child previously spending a large proportion of their time in the grandmother’s care.
- W (A Child)  again emphasises the importance of a well –evidenced and analytical welfare checklist - professional assessment and evidence must address the welfare of a child throughout his/her lifetime. This case is an appeal by prospective adopters against a SGO granted in favour of paternal grandparents. The grandparents came forward after the child had already been placed with prospective adopters.