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Family Law

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Court of Protection Practice and Procedure Conference 2016

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22 APR 2013

JUDICIAL REVIEW: R (H) v Kingston Upon Hull City Council [2013] EWHC 388 (Admin)

(Queen's Bench Division, HHJ Jeremy Richardson QC, 8 April 2013)

The mother brought judicial review proceedings in relation to the local authority decision to remove her two children, who were subject to interim care orders, from the care of the grandparents into foster care without prior consultation with the mother.

The local authority asserted that it was in the process of consultation when events overtook that. The local authority, having ongoing concerns of the grandparents' capacity to care for the children, made a decision to remove the children from their care anyway and had arranged to meet with the parents to inform them of the decision. The guardian had not been consulted prior to the decision being taken.

The parents did not take the news well and the father threatened to kidnap the children which prompted the local authority to immediately remove the children with the assistance of the police. The mother thereafter initiated judicial review proceedings.

Challenges to decisions such as these while care proceedings are in train would usually be determined within the confines of the family court. The circumstances where judicial review proceedings would take place alongside family proceedings would be rare and distinctly fact specific and the Administrative court was alive to the availability of an alternative remedy.

There was a clear duty on the local authority to consult with all affected parties before a decision was reached on important aspects of a child's life while an interim care order was in force and, therefore, when the decision to remove the children without prior consultation was made the local authority had acted unlawfully. However, when the parents were informed, and the father reacted by making threats, the local authority were forced to take them seriously at the time and, therefore, the subsequent removal of the children could not be criticised.

The situation should have been avoided and probably could have been had there been proper consultation or alternative strategies considered; but having created the situation without justification, the Local authority was faced with a potential crisis and acted as many local authorities would have done. The action taken, post paternal threats, was not an irrational or unreasonable decision.

The mother was granted declaratory relief that the initial decision to remove the children without prior consultation was unlawful.


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