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 the ‘relevant date’ to determine the threshold criteria for local authorities to initiate procedures to protect a child. After a two-year-old child was found to have bruises, she and her sibling were sent to be in her father’s care, the judge decided the threshold for care proceedings had not been met. The decision was successfully appealed.
In case 2 there was a difference of opinion between the judge and local authority regarding adoption and long term foster care for three boys. The eldest being subject to a final care order and the youngest being subject to care and placement orders. There was dispute concerning the care plan for the middle child. The case shows the court has a duty to rigorously scrutinise any care plan and emphasises the importance of mutual respect between the court and local authority.
Case 3 concerns permission to withdraw care proceedings. In July 2018 a local authority asserted the threshold for care proceedings had been met for five children following medical and supervision concerns. After reports were completed, the local authority determined the children were not at risk and should return to their parents. The case confirms that where it is obvious the threshold is not crossed, the application for permission to withdraw must succeed.
Case 4 considers guidance in relation to the use of tagging. In 2009 a father was found to have caused grievous harm to his son and imprisoned, he started a subsequent relationship but was barred from entering the family home. In 2018 a psychiatric report confirmed that the father posed a serious risk to the children and they were removed under an emergency protection order. The father offered to be tagged so the children could return home. The local authority argued that even with tagging, the children could still be at risk. An appeal was dismissed.
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.