Children update

In Re DF and GF [2013] EWHC 2607, the
key question for Pauffley J was whether
to make a placement order or a special guardianship order.

A series of authorities, notably Court of Appeal decisions in Re S (Adoption Order or Special Guardianship Order) [2007] 1 FLR 819 and Re S (Adoption Order or Special Guardianship Order) (No 2) [2007] 1 FLR 855, provide the legal framework when the court is faced with the choice between adoption and special guardianship.

This case emphasises the fact that there is no presumption that a special guardianship order is preferable to an adoption order. Each case must be decided on its individual facts and will require careful application of judicial discretion.

Pauffley J acknowledged that adoption has
a ‘skewing’ or ‘distorting’ effect on familial relationships. However, the weight which the court should apply to that distorting effect
will depend on the circumstances of the case.
It will only be one factor to consider in the application of the welfare checklist.

Pauffley J recognises that one of the principal advantages of making an adoption order is that it protects the adopters and children from the threat of future litigation from the natural parents. Special guardianship on the other hand does not provide such protection: the natural parents have standing to apply for any section 8 order, other than a residence order.

In summary, it was the view of the court that a special guardianship order does not provide the same stability and protection as an adoption order. This is an important consideration for practitioners. All other things being equal, the permanency of protection offered by an adoption order may cause the court to grant such an order.

Linked proceedings

The case of A Local Authority v DG and Ors [2014] EWHC 63 (Fam) relates to care proceedings in which the child’s father was to stand trial for the murder of the child’s mother. Disclosure had been sought of police evidence into the family proceedings.

The father had been advised by his solicitors not to serve his response to threshold until he had served his defence statement in the criminal proceedings because of a risk of self incrimination.
As an additional point, it appears that all parties had failed to comply with directions issued by the court – a point about which Keehan J was critical.

This case provides some useful guidance to family practitioners when advising and assisting parents who are involved in concurrent public law and criminal proceedings.

In his judgment, Keehan J highlights that section 98 does not excuse a party to family proceedings from giving evidence on the ground of self-incrimination. In expanding on this point, Keehan J makes reference to the protocol and good practice model issued by the President
of the Family Division in October 2013.

This protocol provides comprehensive guidance on the procedures to follow when there are linked proceedings, especially in relation to applications for disclosure between the two sets.

In addition to making reference to the protocol, the judge considered it necessary and appropriate to give guidance to family and criminal practitioners, which included:

n When a party to care proceedings is ordered
to file and serve a response to threshold
and/or to file and serve a narrative statement, that party must comply with that order and must do so by the date set out in the order.

n A legal practitioner is entitled to advise a client of (i) the provisions and import of section 98 and (ii) the ability of the police and/or a co-accused to apply for disclosure into the criminal proceedings of statements, reports and documents filed in the care proceedings.

n It is wholly inappropriate and potentially a contempt of court, however, for a legal practitioner to advise a client not to comply with an order made in care proceedings.

Keehan J concludes by giving a rather stark warning to family practitioners, namely that they must wake up to the fact that, whatever the difficulties presented by public funding issues and/or the pressure of work, the court will no longer tolerate the failure of parties to comply
in good time with court orders.

Judicial review

In R (H) v Kingston upon Hull City Council [2013] EWHC 388, an interim care order was made for children who had been placed with their grandparents but removed following a negative viability assessment.

The local authority did not consult the parents or the children’s guardian before moving them to foster care. Neither did it seek court approval.

In response, the children’s mother made an application for judicial review of the local authority’s decision to move the children.

Therefore, this matter concerned the role and scope of judicial review in the context of ongoing care proceedings. More generally, it also related to the extent to which a local authority is required to consult when an interim care order is in force.

As practitioners will be aware, the family court makes decisions on an entirely different basis to that of the Administrative Court. The paramount concern for the family court is the child’s welfare. However, the Administrative Court is only concerned about the lawfulness of the decision, which is the subject of the review.

In his judgment, HHJ Jeremy Richardson QC stated that he is not aware of any reported case
of judicial review proceedings in relation to interim care orders. Instead, he suggests that challenges (while care proceedings are ongoing) are usually made within the confines of the family court when an application to discharge the interim care order, or a renewal application, is made.

He states that the Administrative Court
will not ordinarily countenance judicial review proceedings when there is an alternative remedy – especially so when that alternative is a
judicial remedy.

However, it does not mean that judicial review cannot apply to decisions made by local authorities while care proceedings are in motion.

In his judgment, HHJ Jeremy Richardson QC states that there are limited circumstances when an application can be made justly:

n when a person affected by a decision is not actually a party to the care proceedings and might not have a sufficiently good reason to be made an intervener in those proceedings;

n where (as in the instant case) a party does not wish to challenge the basis of the interim care order, but merely a decision made by the local authority to its implementation; or

n it may be that a local authority has reached a conclusion in respect of which it refuses to alter (despite the request of the family court). In those cases, all the family court can do is to exhort or discharge the interim care order.

The court stated that it cannot emphasise
enough that – save in exceptional circumstances – the local authority is not allowed to act unilaterally on important matters affecting
a child in its interim care without proper consultation.

Therefore, the court determined that there was a duty to consult relevant family members and others when an interim care order is in force.

However, importantly, the weight to be attached to the views of those individuals is
for the local authority to determine. SJ

Noel Arnold is director of legal practice and Tom Farrell is a solicitor at the Coram Children's Legal Centre

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