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Challenging and Defending Local Authority Child Care Decisions

A Practical Guide


Explores the roles and powers of local authorities with an emphasis on understanding the usefulness and availability of the various available remedies.

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 “Local authorities are critical to proceedings relating to children” (Family Justice Review 2011).

"The title of this book attracts immediate attention and interest, not least on the part of the colleague who pounced on my review copy in a search (successful) for information on an unusual point she had been asked about ... "
read this review in full

In a climate of financial constraint and increasing public scrutiny the pressures on local authorities to deliver high quality services and good outcomes for children have never been higher.

Decisions by local authorities are made within a context of avoiding unnecessary delay, reduced scrutiny by children’s guardians and the proposed revised focus of family courts in relation to care plans. Similarly, the opportunities for families to negotiate and challenge local authority concerns are more limited and complex. This makes it more essential than ever for professionals to be vigilant in evaluating the quality and transparency of local authority decision-making.

Challenging and Defending Local Authority Child Care Decisions is a standalone guide, as well as a companion volume to Social Work Decision Making: A Guide for Childcare Lawyers. The book is a comprehensive and practical guide for childcare lawyers, other professionals, self-representing litigants and lay parties seeking to understand how to challenge or defend local authority decisions relating to children.

The title takes a practical approach in exploring the roles and powers of local authorities with an emphasis on understanding the usefulness and availability of the various remedies.

The book includes consideration of all the major forms of challenge to local authority decision-making. Key topics include:
• Informal remedies
• Complaints procedures
• Serious case reviews, child death reviews and inquests
• Judicial review
• Applications within proceedings
• Injunctive relief, the inherent jurisdiction and wardship
• Freestanding Human Rights applications
• Appeals
• Damages
• Criminal injuries compensation
Who can challenge?
Parents, Children, Independent reviewing officers, Independent advocates, McKenzie friends, Litigants in person, Interested parties.
What can be challenged?
Local authority processes, Decisions, Omissions, Errors, How to challenge?
Complaints Procedures (Stages 1, 2 and 3)
Judicial review, Applications within proceedings, Inherent jurisdiction and wardship, Injunctive relief, Freestanding applications under the Human Rights Act 1998, Local authority ombudsman, Appeals, Serious case reviews and inquests, Damages
Part 1 - Context
• The Role of the Local Authority
• Local Authority Duties and Responsibilities
• Litigation Without a Lawyer
• Special Forms of Representation

Part 2 - Scrutinising and Challenging Decisions
• Methods of Challenging Local Authorities
• Involving Children and Families in Decision-Making
• Independent Reviewing Officer (IRO)
• Complaints
• Use and Misuse of Section 20
• Death and Serious Harm to Children

Part 3 - Remedies
• Applications within Proceedings
• Human Rights Act Applications
• Injunctive Relief
• Inherent Jurisdiction and Wardship
• Appeals
• Judicial Review – The Law
• Judicial Review – Procedure
• Damages and Local Authorities
• Criminal Injuries Compensation

Part 4 - Resources
• Forms and Guidance
• Links and Resources

"The title of this book attracts immediate attention and interest, not least on the part of the colleague who pounced on my review copy in a search (successful) for information on an unusual point she had been asked about. Challenging and Defending Local Authority Child Care Decisions is exactly what many of us spend the greater part of our working lives doing but we generally do so in the context of relatively narrow areas of specialist practice (care proceedings and judicial review are probably the main ones). The great virtue of this book is that it draws attention to and gives guidance on the whole range of mechanisms available to challenge local authority decisions. Some of these are the every day stock in trade of the child care lawyer (applications to discharge care orders or for contact with children in care, for example) but others are, as the authors comment when discussing damages claims, ‘… fairly alien to their normal daily work-load'.
After a thought provoking Introduction, which I will return to below, the book starts with useful scene-setting in the form of chapters dealing with the role of the local authority and its duties and responsibilities, special forms of representation (including the role of the Official Solicitor) and, perhaps a sign of the times, Litigation without a Lawyer. The next group of chapters deals with the various forms of scrutiny and challenge to which local authority decisions can be subjected. These include reminders as to the importance of and mechanisms for involving children and their families in decision-making about them, a discussion of the at times controversial and not well understood subject of ‘voluntary' accommodation of children by the local authority under s 20 of the Children Act 1989 and a chapter on the making of complaints against the local authority that will be particularly useful to those advising family members who feel that they have not been treated fairly or with proper respect by professionals.

The heart of the book is, however, the group of chapters dealing with remedies. It is worth listing all subjects covered because this shows the breadth of the authors' work. Chapters consider applications that can be made within care proceedings, Human Rights Act 1998 applications, injunctive relief, inherent jurisdiction and wardship, appeals, judicial review, damages claims and criminal injuries compensation.

Although these chapters inevitably lack the depth of exposition and analysis one would find in a specialist work each gives a very useful and accessible account of the area concerned and will be particularly useful to the non-specialist seeking a quick and reliable source of reference for key legal concepts, leading cases and procedural guidance. The chapter on human rights includes, incidentally, a treatment of the case of A and S (Children) v Lancashire County Council [2012] EWHC 1689 (Fam), [2013] 2 FLR (forthcoming) that reminds us that it was the 1998 Act that gave two ‘statutory orphans' adrift and abused in the care system some redress: a case I always feel is a good example to use when suggesting the compromise that we will agree to abolish the corpus of human rights law that the Daily Mail believes exists if we are allowed to keep that which actually does exist.

To return to the Introduction; this contains a discussion (updated in the Preface) of the way in which pending changes that flow, in particular, from the Family Justice Review will impact on local authority decision making and the scope for challenge to it. In his foreword, McFarlane LJ rightly points out that it, ‘… was certainly not an aim of the Family Justice Review that the quality of decisions made for, and about, children in public care would be eroded in anyway' but in difficult times when financial pressure and ill-conceived political interventions are increasingly brought to bear on the care system vigilance, and information and analysis such as is provided by this book, will be required if that quality is to be not only maintained but enhanced.

Finally, tribute is due to the authors and the production team at Jordans for the speed with which this book reached its public. My review copy arrived in early April and the law is stated to be as at 17 February 2013; in fact the authors do not do themselves full justice as they manage to comment on a Supreme Court decision only handed down on 20 February 2013."

Stour Chambers, Canterbury
Family Law journal
In a climate of financial constraint and increasing public scrutiny the pressures on local authorities to deliver high quality services and good outcomes for children have never been higher. The Family Justice Review Final Report (1) acknowledged the effects of such pressures on the quality of social work practice with children and families:
‘Local authorities are critical to proceedings. We acknowledged in the interim report the pressures on them and we have challenged the ready assumption that they are incompetent in what they do. This is far from the case and we have seen ample evidence of good practice. But we have also seen that poor practice happens.’
The Family Justice Review also reiterated the concerns about the effect on children of delay in decisions about their welfare that have been consistently expressed for at least the last twenty years. In particular, the Family Justice Review highlighted the harmful effects to children of delay caused by court proceedings:
‘Delay really matters. All our understanding of child development shows the critical importance of a stable environment to allow development of firm attachments to caring adults. Yet our court processes lead to children living with uncertainty for months and years with foster parents, in care homes or with one parent in unresolved conflict with the other. A baby can spend their first year or much longer living with foster parents, being shipped around town for contact with their birth parents, while courts resolve their future. The longer the case the greater the stress, both for children and adults … Professionals working within the family justice system need to be aware of the urgency of children’s developmental timeframes. Very young children are more likely to develop secure attachments to permanent carers before the age of one. If they are left too long in abusive or neglectful families whilst the decision-making process runs its course, they may suffer a double jeopardy. Their long-term wellbeing may be compromised by the far-reaching consequences of maltreatment and they may suffer from the rupturing and loss of secure attachments made with temporary carers. They will also become more difficult to place in permanent placements as they grow older. Early and decisive action is needed and acceptable timescales need to be agreed and widely disseminated.’ (2)
The Family Justice Review concluded that it is unacceptable for courts to take on average more than a year to deal with public child care cases, correctly reminding us that the harm caused to a child in such a period of uncertainty is unjustifiable in anything other than the most exceptional circumstances.
The financial implications of such delay was also expressed in the clearest possible terms: (3)

‘This all comes at a high financial cost both to the taxpayer and the individual. The estimate of the overall system cost to the public purse in 2009/10 is now put at £1.6 billion … We are not convinced these resources are spent in the most efficient and effective way. And with no more money to be had it is all the more important to use resources to best effect.’

The government accepted almost all of the Family Justice Review’s proposals in full and identified the impact of the proposed series of reforms as follows:

• For parents – a simpler, more straightforward system that they understand and have confidence in, and that will give them the support they need quickly and effectively.
• For social workers – a streamlined system which supports and inspires them to use their professional expertise to achieve the best outcomes for children.
• For local authorities – a less resource-intensive system which allows them the flexibility to determine how best to meet a child’s needs, without unnecessary additional scrutiny.
• For courts and the judiciary – a process which is easier to manage, less bureaucratic and more focused on the needs of the child.
• For the wider family – a clear sense of roles and responsibilities, the ability to input and be listened to, and understanding of the process.
• For children – a faster system which recognises, listens and responds to their needs and concerns; protects their welfare and secures their safety; and one that helps them enjoy their childhood in the most stable environment possible.
In November 2011 the Lord Chief Justice appointed Mr Justice Ryder to prepare a judicial response setting out solutions to the problems identified in the Family Justice Review.

The judiciary’s proposals for the reform of the family justice system were published in July 2012 and acknowledged the cross party consensus for change in support of the Family Justice Review’s conclusions. (4) There are two key elements to the proposals:

• strong judicial leadership and management; and
• robust case management of proceedings by the requirement to have a welfare timetable for each child based on evidence and research.

It is proposed that courts will use evidence-based good practice to control the material which it receives, in particular that of expert witnesses. The government has agreed with the Family Justice Review’s analysis that in too many cases experts are commissioned to provide assessments which add little value to proceedings and introduce unnecessary delay. It is therefore proposed that the court should seek material from an expert witness only when that information is not available and cannot properly be made available from parties already involved; independent social workers should be used only exceptionally. The new Part 25 of the Family Procedure Rules 2010 (5) now confirms that expert evidence will be restricted to that which in the opinion of the court is necessary to assist the court to resolve the proceedings. (6)

Such context has obvious and fundamental implications for the development of social work practice with children and families in the future; for example:

(a) decisions by local authorities are increasingly being made within a context of avoiding unnecessary delay, in-house assessments and other related cost;
(b) there should be limited and reduced scrutiny of local authority practice by children’s guardians (not least because of the resource constraints on CAFCASS);
(c) there should be limited and reduced court scrutiny of local authority care plans; and
(d) local authorities should assume responsibility for making decisions about whether adoption is in a child’s best interests (rather than adoption panels).
Plainly the impact on social work practice with children and families of such proposals has yet to be evaluated. However, just as social workers will be required to make decisions more quickly, so the opportunities for families to navigate and challenge local authority concerns are likely to become more limited and complex. It is therefore more essential than ever for professionals (and, increasingly, self-representing litigants) to be vigilant in evaluating the quality and transparency of local authority decision-making in order to challenge or defend such decisions as appropriate.

This book takes a practical approach in exploring the roles and powers of local authorities with an emphasis on understanding the usefulness and accessibility of the various available remedies. All major forms of challenge to local authority decision-making are considered.
(1) Family Justice Review Final Report (November 2011), para 3.97
(2) Ibid, para 1.2.9
(3) Ibid, para 2.12. x Challenging and Defending Local Authority Child Care Decisions
(4) Judicial proposals for the modernisation of family justice – The Judiciary of England and Wales, July 2012
(5) In force from 31 January 2013
(6) Rule 25.1 of the Family Procedure Rules 2010

The law is stated as at 17 February 2013.
The arrival of this new work on Challenging and Defending Local Authority Child Care Decisions comes at a time when its contents will be much-needed by all those in local authorities who make important child care decisions, and all those who experience the impact of those decisions. The book rightly highlights the enhanced responsibility that will be placed upon local authorities to reach prompt and soundly-based conclusions, as a result of the changes being introduced following the Family Justice Review, and the programme to modernise family justice which has been driven by the judiciary. Although ‘D-Day’ for the final and full implementation of these changes is likely to be in the Spring of 2014, many of the new practices are already being developed and are now a feature of the decision-making process, both in and outside the court arena.

This book delivers what it sets out to do. It is balanced and provides advice to those who have to make decisions for children who are the subject of proceedings under Part IV of the Children Act 1989, and advice to those who seek to challenge them. Although written by lawyers (one of whom has a social work background), and based upon a comprehensive and up-to-date understanding of the law and practice, the text throughout remains true to the stated aim of providing a ‘practical guide’. The chapters on ‘Litigation without a lawyer’ and the ‘Uses and misuses of CA 1989, section 20’ will be of particular value to family members who are seeking to navigate these complicated waters without legal assistance.

Inevitably, the authors have had to put the book to bed and press the ‘print’ button at a time when much of the detail of the new law and procedure has still to be clarified. Whilst this indicates the near certainty of a second edition in 2014, the first edition, which is needed now, is able to look forward to many of the likely changes by including detail throughout the text based upon what is already known from the Family Justice Review and government statements.
Two principal aims of the Family Justice Review’s recommendations are to reduce delay and to reduce the court’s reliance on professional input from outside local authority social services. It was certainly not an aim of the Family Justice Review that the quality of decisions made for, and about, children in public care should be eroded in any way. In this brave new world, where local authority decisions will need to be taken more promptly and with greater reliance upon ‘in-house’ social work expertise, the need for the sage advice contained within these pages is all too clear, in order that both the process of decision-making and each decision made can be, so far as possible, the best for each child and every child.

Andrew McFarlane,
Royal Courts of Justice
11 March 2013

Elizabeth Isaacs QC St Ives Chambers
Specialising in public and private childcare law, Elizabeth worked as a local authority child protection social worker for 8 years before being called to the Bar in 1998 and has substantial legal and professional experience of all areas of children and family work, including physical injury, child sexual abuse, mental health, domestic violence and public interest immunity. She is frequently asked to provide advice and training for solicitors and local authorities about legal practice and procedure in all areas of public child law ... more

Carmel Shepherd Children’s Guardian; Independent local authority panels chair, trainer and consultant
A freelance practitioner working as a chair of adoption and fostering panels, independent social worker, children’s guardian, and trainer. She has over 20 years’ experience of working in local authorities as a social worker, team manager, and service manager. Her expertise is working with children and families where there are child protection concerns, and she has been involved in the formation of local authorities’ policies and procedures in child protection, fostering and adoption. In the early 1990’s she was instrumental in introducing Family Group Conferences to social work practice in London.

Jeremy Weston QC St Ives Chambers
Jeremy specialises in Family Law. He represents Local Authorities, Parents and Children (via Children's Guardian).

He is recognised as having expertise in complex care cases involving the death of children, serious injuries to children (including head injuries), sexual abuse (including acting for children both as victims and alleged perpetrators) and factitous illness.

Additionally, Jeremy acts in adoption proceedings, applications under the Hague Convention and Judicial Review ... more

Lorna Meyer QC No 5 Chambers
Lorna has forged a strong reputation in all areas of children work. Her regular appearances at High Court and Court of Appeal level in private and public law spheres are testament to the energy, detailed preparation and skill she brings to both the advocacy and written elements of each case.

Lorna has the ability to ensure that clients who find themselves in the midst of complex, sensitive and emotionally charged situations feel able to have their cases understood whether they are social work professionals, teenage parents, alleged abusers or children themselves. She has a lengthy history of working with those with reduced capacity and understanding. She has acted for Local Authorities, Cafcass Guardians, parents, the child direct and as an advocate to the Court.

In addition to Children Act and Adoption Proceedings Lorna has a keen interest in cases with international dimensions ... more

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