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 concerns a child currently accommodated under section 20, whose grandparents planned to withdraw consent. The court considered that the local authority failed to establish whether or not the threshold for making an interim care order had been crossed. The learning for practitioners involves the need to adequately formulate the nature of risk, its impact on the child's welfare, and how risks should be contained in court applications.
In case 2, we summarise applications by birth parents to discharge care orders for their children. The local authority's plans for the children contain differences of timing, placement permutations, and preconditions that required the court's consideration. The judge considered issues around the plan for reunification and permanence.
Case 3 looks into the evidence relied upon for a finding that a mother had failed to protect her daughter from physical abuse at the hands of her partner. The judge reviews the principles around 'failure to protect', including when considering an adult's violent behaviour in relation to the welfare of children in the household.
Case 4 considers whether or not a local authority is required to notify and assess wider family members as potential carers when they have not been proposed by the parents and/or where the parents specifically do not wish the wider family to be involved.
Case 5 is an appeal by a mother about interim care orders on the basis that she was subject to improper judicial pressure. Care proceedings were urgently issued after the mother withdrew her consent to the children's accommodation under section 20. The judge reviews the requirements of a fair hearing.
In case 6, we highlight an appeal by a childminder that she should be exonerated from findings that she caused injuries to a child in her care. This was a complex case where available evidence was methodically analysed and set out by the trial judge.
Case 7 considers the balance between adoption or long-term foster care as a placement option for two siblings, aged eight and five, and whether the local authority should have a time limited opportunity to find an adoptive placement for the children together. The judge set out the analysis of the advantages and disadvantages of long-term fostering and adoption, as well as a review of the available research evidence regarding the outcomes and disruption rates of each option.
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.