Seminar Notes 23.02.05 Gabrielle Jan Posner

2 Gray's Inn Square Chambers

Seminar Notes 23.02.05
Gabrielle Jan Posner

Practice Groups

Direct Public Access





		Recent Public Law Cases
		Seminar Notes

These notes were prepared by Gabrielle Jan Posner for the continuing education seminar "Children - Topical Issues" given by members of the 2 Gray's Inn Square Chambers Family Group on 23 February 2005.


		Topics Covered:
-		Emergency Protection Orders
-		Interim Care Orders
-		Joinder of Relatives as Parties
-		Procedure & Practice
-		Human Rights Arguments
-		Threshold Criteria / Standard of Proof
-		Evidence
-		S 38(6) Directions / Residential Assessment
-		Designated Local Authority
-		S 34(4) Orders / Terminating Contact
-		Implementation of Care Plans
-		Freeing for Adoption
-		Wardship
-		Local Authority Duties & Responsibilities / Children in Need
-		Care Leavers
		(click on a topic to jump to relevant section)


	Emergency Protection Orders

-	X Council v B (Emergency Protection Orders) [2005] 1 FLR 341, FD; [2004] EWHC 2015 (Fam)
	Munby J, 16/8/04
	The eldest of 4 children was seriously ill and the local authority had concerns about the parents' care of the entire family. Following a strategy meeting at which the mother was unwilling to discuss the situation, ex parte EPO's were made for 8 days. The 3 youngest children were taken into foster care, but the eldest refused to comply. The local authority's objective was to organise medical examinations without any risk of parental interference. ICO's were made. After a month the 3 children were placed with their maternal grandparents and then rehabilitated to their parents. The local authority was granted leave to withdraw its application for care orders and guidance was given in relation to EPO's in the light of the human rights of the children and parents, including the following:-
	-		An EPO, summarily removing a child from his parents, is a draconian and extremely harsh measure requiring exceptional justification and extraordinarily compelling reasons
	-		The family proceedings court must be satisfied that it is necessary and proportionate and no other less radical form of order would promote the welfare of the child
	-		Separation is only to be contemplated if it is essential to secure the child's safety and imminent danger must be actually established
	-		If the real purpose of the application is to facilitate assessment, consideration should be given to the making of a child assessment order under s 43 Children Act 1989
	-		No EPO should be made for any longer than is absolutely necessary to protect the child
	-		The evidence in support of an EPO must be full, detailed, precise and compelling
	-		Save in wholly exceptional cases, parents must be given adequate prior notice and the local authority must make out a compelling case for applying ex parte
	-		Where an EPO is made, arrangements for reasonable contact as required under s 44(13) must be driven by the needs of the family, not stunted by lack of resources

-	Haringey London Borough Council v C (a Child), E and Another intervening Times Law Reports 27/11/04, FD [2004] EWHC 2580 (Fam)
	Ryder J, 12/11/04
	Practitioners and courts should be more aware of the limits there must be to the proper use of without notice emergency applications in care proceedings, especially in the context of human rights legislation. A one year old child had been brought to this country from Kenya at the age of 2 weeks by the interveners. They believed the birth to have been as a result of a miracle, but were subsequently found not to be his natural parents. On receipt of the DNA test results the local authority had applied for and been granted an EPO and permission to refuse contact between the child and the interveners. There was little justification for adopting a procedure that denied the interveners any immediate right to make representations. The application should have been brought on short notice.

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	Interim Care Orders

-	Oxfordshire County Council v S [2004] 1 FLR 426, FD; [2003] EWHC 2174 (Fam)
	Munby J, 18/9/03
	On hearing an ICO application, Justices should not fall into the trap of making final findings and should bear in mind that their only task is to determine whether there are reasonable grounds for believing that the children are suffering or likely to suffer significant harm (s 38(2) Children Act 1989).

-	Re S (Habeas Corpus); S v Haringey London Borough Council [2004] 1 FLR 590, QBD; [2003] EWHC 2734 (Admin)
	Munby J, 13/11/03
	Where care proceedings were on foot, an ICO had been made and the children placed in foster care, it was not appropriate to issue habeas corpus proceedings in the Administrative Court. Even if there were defects in the actual process of the removal of the children, this could not affect the lawfulness of the ICO. The proper forum for litigating issues that arise in ongoing care proceedings will almost always be the court where the care proceedings are being tried.

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	Joinder of Relatives as Parties

	(Protocol)
-	Re G (Protocol for Judicial Case Management in Public Law Children Act Cases: Application to Become Party in Family Proceedings) [2004] 1 FLR 1119, FD; [2004] EWHC 116 (Fam)
	Hedley J, 30/1/04
	Every court in approaching the application of the Protocol must keep clearly in mind not only its terms, but also its purpose. If the pursuit of that purpose requires departure from the terms of the Protocol, then that must be done with proper reasons. Where a local authority sought an ICO in order to remove a child who was placed with her grandparents, it was unfair for the Justices decline to hear from the grandparents on the basis that the Protocol precluded them from deciding party status when transferring to the care centre.

	(Guidelines)
-	Re W (a Child) (Care proceedings: Leave to apply) Times Law Reports 22/11/04, FD
	Sumner J, 11/11/04
	The test for considering whether to grant party status to a relative or friend is the same in both public and private law proceedings and whether or not the applicant is seeking, or intending to seek, any specific order or simply to be joined as a party. Following Re J (Leave to Issue Application for Residence Order) [2003] 1 FLR 114, the criteria in s 10(9) Children Act 1989 are to be applied, there should be a full inquiry into the circumstances, but it is not necessary for the applicant to show a real prospect of success. The applicant must be seeking to put forward separate and distinct interests from another party.

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	Procedure & Practice

	(Service)
-	Re AB (Care Proceedings: Service on Husband Ignorant of Child's Existence) [2004] 1 FLR 527, CA; [2003] EWCA Civ 1842
	Thorpe & Scott Baker LJJ, 10/11/03
	There should only be a relaxation of the rules of service in highly exceptional circumstances.

	(Adjournment)
-	Re C-B (A Child) [2004] EWCA Civ 1517
	CA, Thorpe & Wall LJJ, Holman J, 7/10/04
	Where the local authority had changed its care plan and the guardian subsequently changed the recommendation in his report and was no longer supporting placement of the child with his aunt, it was in breach of the aunt's right to a fair trial not to grant an adjournment.

	(Justices' reasons)
-	Oxfordshire County Council v S [2004] 1 FLR 426, FD; [2003] EWHC 2174 (Fam)
	Munby J, 18/9/03
	Justices are not obliged to read out verbatim the entire document containing their written reasons. Under r 21(6) Family Proceedings Courts (Children Act 1989) Rules their duty is only to state orally their findings of fact and the reasons for the court's decision. Paraphrasing or summarising the contents of the written reasons does not invalidate the decision, but a material or significant departure or deviation of substance could. Any litigant alleging this has a heavy evidential burden.

	(Costs of Joint Experts' Reports)
-	Calderdale Metropolitan Borough Council v S and Another Times Law Reports 18/11/04, FD; [2004] EWHC 2529 (Fam)
	Bodey J, 18/10/04
	Although there can be no blanket policy on the costs of jointly commissioned reports, since ultimately it is a matter for the discretion of the court, the Legal Services Commission could not insist that half the costs of a jointly instructed psychological assessment of the parents should be borne by the local authority and the remaining half should be subdivided equally between the remaining parties who were publicly funded. Costs should be apportioned fairly and reasonably bearing in mind all the circumstances of the particular case. The following considerations might be taken into account in deciding how to apportion the costs:-
	-		The degree of competence and thoroughness with which the local authority has conducted the information-gathering process. If the work would normally be expected to be undertaken by the local authority as part of its core preparation, it will almost certainly be required to pay the whole of the costs
	-		The extent to which the report goes to threshold, as distinct from helping the court to decide disposal
	-		Treating experts and others involved with the family are more likely to have to be paid for by the local authority. Conversely, the fees of a forensic expert brought in specifically to give an overview to the court are more likely to be ordered to be shared between the parties.

	(Social Worker disagreeing with Local Authority's Care Plan)
-	Re F (Adoption: Welfare of Child: Financial Considerations) [2004] Fam Law 498, FD; [2003] EWHC 3448 (Fam)
	Black J, 11/7/03
	Where a local authority social worker disagrees with the authority's care plan, the authority should explain entirely openly to the court what the position is. It could then call as a witness the person who actually bore responsibility for the care plan as devised, as well as tendering the social worker for cross-examination.

	(Costs)
-	Re V (Care Proceedings: Human Rights Claims) [2004] 1 FLR 944, CA; [2004] EWCA Civ 54
	Tuckey & Wall LJJ, 4/2/04
	Advocates who fail to cite relevant authorities may be subject to wasted costs orders or the disallowance of their fees at the conclusion of the case.

	(Disclosure/ Publicity)
-	Re B (A Child) (Disclosure) [2004] 2 FLR 142, FD; [2004] EWHC 411 (Fam)
	Munby J, 19/3/04
	Guidance was given on the meaning of publication. Disclosure was permitted of certain documents to the GMC and of certain facts into the public domain by a mother who claimed to be a victim of miscarriage of justice.

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	Human Rights Arguments

-	Re V (Care Proceedings: Human Rights Claims) [2004] 1 FLR 944, CA; [2004] EWCA Civ 54
	Tuckey & Wall LJJ, 4/2/04
	Complaints under the Human Rights Act 1998 arising in ongoing care proceedings before a final care order is made, should normally be dealt with within the care proceedings by the court dealing with them. It is inappropriate to treat such complaints as a discrete issue to be separated from the rest of the case for hearing in the Family Division whilst the care proceedings continue in the family proceedings court or county court.

-	Re P (Adoption: Breach of Care Plan) [2004] 2 FLR 1109, CA; [2004] EWCA Civ 355
	Thorpe & Mantell LJJ, 2/3/04
	Where a parent alleges that a local authority has disregarded its care plan and this amounts to a breach of human rights, he / she must protest the breach as soon as it has become apparent. This should be done by making a freestanding application under s 7 Human Rights Act 1998. Alternatively, as contact was being denied in this case, an appropriate course would have been to make an application for contact under s 34 Children Act 1989 as a means of seeking judicial intervention.

	(Adjournment)
-	Re C-B (A Child) [2004] EWCA Civ 1517
	CA, Thorpe & Wall LJJ, Holman J, 7/10/04
	Where the local authority had changed its care plan and the guardian subsequently changed the recommendation in his report and was no longer supporting placement of the child with his aunt, it was in breach of the aunt's right to a fair trial not to grant an adjournment.

	(Social Work Practice)
-	Re V (a Child) (Care: Pre-birth actions) Times Law Reports 1/12/04, CA; [2004] EWCA Civ 1575
	Thorpe & Wall LJJ, Holman J, 12/10/04
	The acts or omissions of a social worker before the birth of a child and before the initiation of proceedings will not normally render subsequent care proceedings unfair as a whole and in breach of the parents' right to a fair trial.

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	Threshold Criteria/ Standard of Proof

-	Re LU and LB (Serious Injury: Standard of Proof), [2004] 2 FLR 263, CA; [2004] EWCA Civ 567
	Dame Elizabeth Butler-Sloss P, Thorpe & Mantell LJJ, 14/5/04
	Two applications for permission to appeal out of time were heard in the wake of R. v Cannings [2004] EWCA Crim.01. The standard of proof to be applied in Children Act cases is the balance of probabilities and the approach remains as laid down by Lord Nicholls of Birkenhead in Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80. It is incorrect to treat the distinction between criminal and civil standards as "largely illusory". The following considerations from the judgment in R. v Cannings are of direct application in care proceedings:-
	-		The cause of an injury or episode that cannot be explained scientifically remains equivocal
	-		Recurrence is not in itself probative
	-		Caution is needed where medical experts disagree and one opinion does not exclude a reasonable possibility of natural cause
	-		The court must be on guard against over-dogmatic experts
	-		Today's medical certainty may be discarded by the next generation of experts.

-	Re T (Abuse: Standard of Proof) [2004] 2 FLR 838, CA; [2004] EWCA Civ 558
	Dame Elizabeth Butler-Sloss P, Potter & Mummery LJJ, 19/5/04
	It is mistaken to treat the distinction between criminal and civil standards as "largely illusory". The standard of proof to be applied in Children Act cases is the balance of probabilities and the approach remains as laid down by Lord Nicholls of Birkenhead in Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80. The judge must evaluate and assess the whole of the evidence, medical and non-medical, and should not look for near certainty amongst the medical experts.

-	A Local Authority v S, W & T (By his Guardian) [2004] 2 FLR 129, FD; [2004] EWHC 1270 (Fam)
	Hedley J, 27/5/04
	A child suffered fatal brain injuries in the care of her stepfather (the father) who was acquitted of manslaughter. The local authority sought a care order in respect of his surviving child alleging that the father had inflicted the injuries by violent shaking. The father, while acknowledging that he had lied about his involvement in the incident leading to the child's death at various stages of the investigation, continued to deny shaking the child and explained the injuries as having resulted from the child bouncing on the bed. Although the medical experts agreed that the overwhelming probability favoured some form of non-accidental injury, there was disagreement as to whether the father's explanation could satisfactorily explain the injuries. The threshold was found to be satisfied
	-		The task of the jury in a criminal trial and the task of a family judge are quite different. The jury is concerned primarily with the defendant and has to be sure of guilt; the family judge is concerned primarily with the child and must determine probabilities on the basis of a much wider range of evidence. Although very serious issues are raised in family proceedings, they remain civil proceedings, subject to civil, not criminal, rules of evidence and the civil law relating to proof
	-		Disagreement amongst medical experts should come as no surprise and does not absolve the family judge from the responsibility of making a decision, applying the civil standard of proof
	-		The inherent improbability of a loving stepfather inflicting fatal violence on a young child requires cogent evidence to overcome that improbability. The father's lack of credibility was relevant in considering his explanation.

	(Circumstantial Evidence/ Credibility)
-	Re B (Threshold Criteria: Fabricated Illness) [2004] 2 FLR 200, FD; [2002] EWHC 20 (Fam)
	Bracewell J, 10/1/03
	In order for a court to make findings, the test is that in Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80, i.e., the balance of probabilities, but commensurate with the extremely serious allegations. Although the medical evidence is of very great importance, explanations given by carers and the credibility of those involved with the child are also of great significance. The cogency of circumstantial evidence depends upon its quality and it is necessary to test the various elements.

-	Re J & M
	CA, Ward, Rix & Hooper LJJ, 20/12/04
	Following an unexplained injury to an accommodated child, on the medical and oral evidence, the judge had been right to exonerate the foster parents and conclude that the mother's evidence was unreliable and that the injury had occurred whilst the child was with the mother during unsupervised contact and was non-accidental.

	(Effect of Not Finding Threshold Met)
-	Re S
	CA, Thorpe, Potter & Wall LJJ, 10/2/05
	Where a judge did not find the threshold met, he could not conclude that as a matter of law, in any future dealings, the court and the parties had to proceed upon the basis that the alleged abuse had not happened. The failure to meet the threshold criteria has no impact upon the local authority's powers, duties and responsibilities beyond the actual proceedings, and could not prevent an investigation under s 47 Children Act 1989 and the child's name being placed on the child protection register if necessary to protect the child.

	(Re-Opening Threshold & Fresh Evidence)
-	Re K (Children: Adoption Freeing Order) [2005] 1 FLR 285, CA; [2004] EWCA Civ 1181
	Wall & Neuberger LJJ, 27/8/04
	Freeing orders and final care orders were set aside and interim care orders reinstated on appeal. It is in the public interest to identify the perpetrator of serious non-accidental injuries to children where possible and for the children to know the truth. Therefore fresh evidence from the mother, who contended that she had previously been prevented from providing facts to the court as a result of oppression from the father's family, would be admitted and reconsideration of the question of the identity of the perpetrator ordered.

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	Evidence

	(Separately Represented Children / Failure of Adults to Give Evidence)
-	Re O (Care Proceedings: Evidence) [2004] 1 FLR 161, FD; [2003] EWHC 2011 (Fam)
	Johnson J, 14/8/03
	It is the general practice not to hear oral evidence from children in care proceedings. This will usually apply even if they are mature enough to be separately represented and wish to be called
	Where a mother filed statements denying allegations of assault, but did not give oral evidence, it was wrong simply to attach no weight to her statements. As a general rule, where a parent declines to answer questions or give evidence, unless there was some sensible reason to the contrary, it should be inferred from this that the allegations are true.

	(Sexual Abuse / Photographs)
-	Re Y (Evidence of Abuse: Use of Photographs) [2004] 1 FLR 855, FD; [2003] EWHC 3090 (Fam)
	Holman J, 17/12/03
	There is a potential danger in relying upon photographs when diagnosing child sexual abuse. Colposcope photographs should be treated with caution. While the aim of minimising intimate examinations of children is very important, repeated such examinations may be preferable to a potential miscarriage of justice and irreparable harm to children and parents.

-	Re T (Abuse: Standard of Proof) [2004] 2 FLR 838, CA; [2004] EWCA Civ 558
	Dame Elizabeth Butler-Sloss P, Potter & Mummery LJJ, 19/5/04
	Where photographs are taken, suitable local protocols should be devised as soon as possible to enable all the photographs to be released to all the relevant experts when they received instructions to report.

	(Sexual History)
-	Re A & R [2004] EWCA Civ 1102
	CA, Ward & Waller LJJ, 11/6/04
	In the circumstances the judge had erred in entirely excluding the medical evidence of the intervener's sexual history which was consistent with her allegation of sexual abuse by penetration over a 6 year period, and was not tainted by her having had on a single occasion sexual intercourse with a person other than her alleged abuser.

	(Expert's Methodology)
-	Re M (Children) [2004] EWCA Civ 1311
	CA, Wall LJ & Holman J, 5/10/04
	Once a party had been permitted to instruct a certain expert, it was not appropriate then to question the expert's methodology when deciding whether to allow him to interview the children as part of his investigation.

	(Psychometric Testing)
-	Re S (A Child) [2004] EWCA Civ 1029
	CA, Ward, Arden & Scott Baker LJJ, 30/7/04
	Personality tests may be more likely to obfuscate the judicial process than assist it. No judge needs personality tests to warn him or her of the dangers. It is for the judge to evaluate the facts and assess questions of credibility. Personality tests should not be used to resolve issues such as parenting skills unless they are validated by other evidence

	(Fresh Evidence)
-	Re K (Children: Adoption Freeing Order) [2005] 1 FLR 285, CA; [2004] EWCA Civ 1181
	Wall & Neuberger LJJ, 27/8/04
	(see under Re-opening Threshold above )

	(Privilege)
-	W v Westminster City Council and Others Times Law Reports 7/1/05, QBD; [2004] EWHC 2866 (QB)
	Tugendhat J, 9/12/05
	A communication made at a child protection conference is protected by qualified, but not absolute, privilege.

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	S 38(6) Directions/ Residential Assessment

-	Re G (Interim Care Order: Residential Assessment) [2004] 1 FLR 876, CA; [2004] EWCA Civ 24
	(Notes amended): this decision of the Court of Appeal in Re. G was appealed. The House of Lords overturned the Court of Appeal. For the House of Lords judgment delivered on 14 November 1996 click here (adobe pdf)

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	Designated Local Authority

-	S 31(8) Children Act 1989 provides that the local authority designated in a care order must be (a) the authority within whose area the child is ordinarily resident; or (b) where the child does not (ordinarily) reside in the area of a local authority, the authority within whose area any circumstances arose in consequence of which the order is being made.
-	S 105(6)(c) provides that in determining the ordinary residence of a child, there shall be disregarded any period in which he lives in any place while he is being provided with accommodation by or on behalf of a local authority.

	(Interim Care Order)
-	London Borough of Redbridge v Newport City Council [2004] 2 FLR 226, FD; [2003] EWHC 2967 (Fam)
	David Hershman QC (sitting as a deputy High Court judge), 4/12/03
	Any period during which children are in local authority accommodation, including placement with a parent in a residential unit, is to be disregarded for the purpose of determining ordinary residence, but a period of placement at home with a parent is not to be disregarded, even if it is under the terms of an ICO.
	The time to consider ordinary residence is the time that the matter is being considered by the court rather than the time of the commencement of the proceedings. Therefore a different result might be achieved depending on the timing of the determination. A designation of a local authority at an interim hearing is subject to reconsideration and variation at a later date.

	(Full Care Order - Placement With Relatives)
-	S 23(6)(b) Children Act 1989 provides that a local authority looking after a child shall make arrangements to enable him to live with a relative, friend or other person connected with him, unless that would not be reasonably practicable or consistent with his welfare.

-	Re H (Care Order: Appropriate Local Authority) [2004] 1 FLR 534, CA; [2003] EWCA Civ 1629
	Thorpe, Jonathan Parker & Dyson LJJ, 18/11/03
	The child was born in Norfolk and was briefly in the care of Norfolk. He moved with his mother to Oxford; he was removed under police protection and placed in foster care. Oxfordshire obtained an ICO. A few months later a judge decided that he ought to return to Norfolk to be cared for by his grandparents. This was opposed unsuccessfully by Oxfordshire. After almost 2 years the grandparents sought a care order on the basis that they would receive greater support. It was held that Norfolk should be designated
	The disregard in s 105(6) did not apply because the child was not being provided with accommodation by Oxfordshire once the judge had ordered his move from foster care to his grandparents in Norfolk. The effect of s 23(6) is to cast upon the local authority a duty to make arrangements to enable a looked-after child to live with a person or family to whom he is closely related or connected. Once that is achieved, the looked after child ceases to be provided with accommodation within the meaning of s 105(6) and begins to live with the relative arranged by the local authority pursuant to its duty under s 23(6).
	In any event, none of the considerations identified by the judge was sufficient to classify this case as exceptional justifying departure from the simple test.

-	Kirklees Metropolitan Borough Council v London Borough of Brent [2004] 2 FLR 800, FD
	Bodey J, 6/4/04
	Two children were removed from their mother under police protection and placed in foster care. Kirklees obtained an ICO. Kirklees undertook an assessment of the mother's sister, who lived in Brent. She was approved as a foster carer and the children moved to live with her with the agreement of all parties. The placement was successful and the children were expected to remain with their aunt in the long-term. The issue arose as to which local authority should be designated. Brent was designated
	Following Re H (above) the disregard in s 105(6) did not apply, the local authority was making arrangements to enable the child to live with a relative under s 23(6)(b), rather than providing him with accommodation by placing him with a relative (s 23(2))
	8 months was sufficient to create ordinary residence in Brent and it was clear that this is where the children lived.

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	S 34(4) Orders/ Terminating Contact

-	Re S (Care Parental Contact) [2005] 1 FLR 469, CA; [2004] EWCA Civ 1397
	Thorpe & Maurice Kay LJJ, 21/9/04
	Applying Re L (Sexual Abuse: Standard of Proof) [1996] 1 FLR 116 an order under s 34(4) Children Act 1989 authorising a local authority to refuse a parent contact with a child should not be made merely as a contingency against a possible future change of circumstances. Where it was envisaged that the mother would continue to have contact 6 times a year, making a s 34(4) order was inappropriate and gave a misleading impression of the outcome of the hearing.

-	Re H (Children)
	CA, Thorpe, Potter & Sedley LJJ, 2/2/05
	A s 34(4) order should not be made merely for the practical convenience of the local authority in order to secure a safe passage to adoption where the children require ongoing contact with the parents so long as is possible.

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	Implementation of Care Plans

-	X Council v B (Emergency Protection Orders) [2005] 1 FLR 341, FD; [2004] EWHC 2015 (Fam)
	Munby J, 16/8/04
	Interim care plans which provided that if the local authority sought to remove the children, they would give first consideration to placing them with their maternal grandparents and would endeavour to give the parents at least 24 hours notice, were not approved by the court until they were revised to provide that no removal would take place without the matter being put before the court for determination. A local authority, even if clothed with the authority of a care order, is not entitled to make significant changes in the care plan, or to change the arrangements under which the children are living, let alone to remove them from home if they are living with their parents, without properly involving the parents in the decision-making process and without giving the parents a proper opportunity to make their case before a decision is made.

	(Human Rights Arguments)
-	Re P (Adoption: Breach of Care Plan) [2004] 2 FLR 1109, CA; [2004] EWCA Civ 355
	Thorpe & Mantell LJJ, 2/3/04
	Where a parent alleges that a local authority has disregarded its care plan and this amounts to a breach of human rights, he or she must protest the breach as soon as it has become apparent. This should be done by making an application under s 7 Human Rights Act 1998. Alternatively, as contact was being denied in this case, an appropriate course would have been to make an application for contact under s 34 Children Act 1989 as a means of seeking judicial intervention.

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	Freeing for Adoption

	(Procedure)
-	Re M (Care Order: Freeing Application) [2004] 1 FLR 826, CA; [2003] EWCA Civ 1874
	Ward, Mantell & Carnwarth LJJ, 18/12/03
	Applications for a care order and an order freeing the child for adoption being dealt with at a single hearing, should be dealt with as separate and distinct applications requiring individual assessment. The care application should be dealt with first and, if a care order is made, the court should proceed to consider the freeing application.

	(Fresh Evidence)
-	Re K (Children: Adoption Freeing Order) [2005] 1 FLR 285, CA; [2004] EWCA Civ 1181
	Wall & Neuberger LJJ, 27/8/04
	Freeing orders and final care orders were set aside and interim care orders reinstated on appeal. It is in the public interest to identify the perpetrator of serious non-accidental injuries to children where possible and for the children to know the truth. Therefore fresh evidence from the mother, who contended that she had previously been prevented from providing facts to the court as a result of oppression from the father's family, would be admitted and reconsideration of the question of the identity of the perpetrator ordered. The fact that the children had been freed for adoption is no bar to the court at first instance undertaking a rehearing.

	(Reasonableness of Parent Withholding Agreement)
-	Re F (Adoption: Welfare of Child: Financial Considerations) [2004] Fam Law 498, FD; [2003] EWHC 3448 (Fam)
	Black J, 11/7/03
	Where all the professionals in the case supported two boys remaining in their current placement, but the local authority argued this was too expensive in the long term, its application for a freeing order was dismissed.

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	Wardship

-	Re W and X (Wardship: Relatives Rejected as Foster Carers) [2004] 1 FLR 415, FD; [2003] EWHC 2206 (Fam)
	Hedley J, 31/7/03
	By virtue of s 23 Children Act 1989 and the Fostering Services Regulations 2002, a child cannot be placed with a relative without parental responsibility under a care order unless the relative is approved as a foster carer. Accordingly, where grandparents had been rejected as foster carers for the 3 children living with them and the circumstances of the case warranted continuing external control of the placement to protect the children's welfare, it was appropriate to invoke the inherent jurisdiction. A supervision order and s 8 orders were made in relation to the children and they were made wards of court.

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	Local Authority Duties & Responsibilities/ Children in Need

	(Child Protection)
-	Re. S
	CA, Thorpe, Potter & Wall LJJ, 10/2/05
	Where a judge did not find the threshold met, he could not conclude that as a matter of law, in any future dealings, the court and the parties had to proceed upon the basis that the alleged abuse had not happened. The failure to meet the threshold criteria has no impact upon the local authority's powers, duties and responsibilities beyond the actual proceedings, and could not prevent an investigation under s 47 Children Act 1989 and the child's name being placed on the child protection register if necessary to protect the child.

-	Provision of Accomodation Under s 17(1) Children Act 1989
	As from 7 November 2002 s 116 Adoption and Children Act 2002 amends s 17(6) Children Act 1989 to include providing accommodation as part of the services for children in need.

-	R (G) v London Borough of Barnet ex parte G (FC); R (W) v London Borough of Lambeth ex parte W (FC) and R v London Borough of Lambeth ex parte A (FC); [2004] 1 FLR 454, House of Lords; [2003] UKHL 57
	Lord Nicholls of Birkenhead, Lord Steyn, Lord Hope of Craighead, Lord Millett, Lord Scott of Foscote, 23/10/03
	In each of these cases children had been assessed by the local authority as children in need. Lambeth had adopted a policy of dealing with the accommodation needs of homeless children by making accommodation available for the children, but not their parents. Lord Nicholls of Birkenhead and Lord Steyn dissented in the case of A
	The majority held that the correct analysis of s 17(1) is that it sets out duties of a general character intended to be for the benefit of all children in need in the area. The other duties and specific duties which then follow, including the duty to asess the needs of a child, must be performed in each individual case by reference to the general duties in s 17(1). The assessment of a child's needs does not crystallise the general duty under s 17(1) so that it becomes a specific duty owed to the child as an individual
	Although the services provided to children in need may include the provision of accommodation, it is not the principal or primary purpose of the Children Act to rehouse a child so that he can live with his parents
	Lord Nicholls of Birkenhead and Lord Steyn held that s 17(1) does not impose an absolute duty on local authorities to meet the specific needs of every child in need, whatever those needs may be, but it does impose a duty in respect of the individual child, requiring the local authority to take reasonable steps to assess the needs of an individual child in need and to provide a range and level of services appropriate to those needs
	Where a child could withstand being separated from his parents, it was reasonable to accommodate the child alone. However, where a child was not old enough to understand what was going on or would be likely to be significantly upset by the separation, the child's immediate need was for accommodation with the parent and the local authority could not fulfil its duty under s 17(1) by accommodating the child alone.

	(Accomodated Children)
-	Re T (Judicial Review: Local Authority Decisions Concerning Children in Need) [2004] 1 FLR 601, QBD; [2003] EWHC 2515 (Admin)
	Wall J, 31/10/03
	A 14 year old boy was accommodated by the local authority under Part III Children Act 1989 following allegations of sexual assault by his younger sister. His placement in a local children's home was terminated. Barnardo's undertook a risk assessment which recommended that he attend a specialist residential placement. The accommodation management group (AMG) of the local authority rejected the recommendation and decided that his needs could be met at the children's home with an educational programme. The AMG's decision was taken a time before a statement of special educational needs had been carried out. The decision was quashed on the basis that it was made without adequate information, and the local authority was directed to reconsider provision for the boy under Part III. It was accepted that the boy was a child in need and that the local authority had an obligation to accommodate him and provide a range and level of services appropriate to his needs. The duty to safeguard and promote his welfare as an accommodated child under s 22(3)(a) Children Act 1989 was a general duty which did not require the local authority to provide a specialist residential placement for him. While the court could direct the local authority to consider the question of the services it should provide for him, it could not direct the local authority to implement a particular course of action or to make any special provision for him

	(Disabled Children)
-	R (CD) v Isle of Anglesey County Council [2005] 1 FLR 59, QBD; [2004] EWHC 1635 (Admin)
	Wilson J, 16/7/04
	A severely disabled 15 year old girl could no longer be cared for by her mother. She had been having regular respite care with a foster family and she, her mother and the foster family wished her to live permanently with the foster family. This would entail the foster family moving to larger accommodation. The local authority proposed instead that the girl should be a weekly boarder at a special school and no longer stay with the foster family. This was contrary to the girl's expressed wishes. The local authority's care plan was declared unlawful and set aside.

	(Asylum Seekers)
-	R (A) v National Asylum Support Service [2004] 1 FLR 704, CA: [2003] EWCA Civ 1473
	Brooke, Waller & Clarke LJJ, 23/10/03
	The only statutory provision under which a disabled child of an asylum seeker could be provided with accommodation was s 95 Immigration and Asylum Act 1999 and the duty is owed by NASS. S 17 Children Act 1989 is expressly excluded.

-	R (O) v London Borough of Haringey and Secretary of State for the Home Department [2004] 2 FLR 476, CA; [2004] EWCA Civ 535
	Woolf CJ, Rix & Carnwarth LJJ, 4/5/04
	A local authority has a duty to support a disabled adult asylum seeker under the National Assistance Act 1948, but is not responsible for dependent children who are the responsibility of NASS under s 122 Immigration and Asylum Act 1999.

	(ASBO)
-	R (M) v Sheffield Magistrates' Court [2005] 1 FLR 81, QBD; [2004] EWHC 1830 (Admin)
	Newman J, 27/7/04
	Where a child is in care and therefore the local authority has parental responsibility, that local authority can, if appropriate, apply for an ASBO in respect of the child notwithstanding that there is a conflict of interests. General guidance was given as to how applications should be conducted.

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	Care Leavers

-	As from 7 November 2002 s 116 Adoption and Children Act 2002 amends s 22 Children Act 1989 to exclude from the definition of looked after children, those who are being provided with accommodation because they are being provided with services under s 17. That means that local authorities do not owe them the same duties as to children who are accommodated under s 20.

-	R (On the application of W) v Essex County Council [2003] EWHC 3175 (Admin)
	QBD, Charles J, 19/12/03
	Where a child had been looked after by the local authority when he was 14 and 16 years old for periods that exceeded 13 weeks in total, the local authority continued to owe him duties after he ceased to be looked after. Once he reached 18, the duties introduced into the Children Act 1989 by the Children (Leaving Care) Act 2000 would apply to him.

-	R (Berhe) v Hillingdon London Borough Council [2004] 1 FLR 439, QBD; [2003] EWHC 2075 (Admin)
	Sullivan J, 29/8/03
	Where the social services department of a local authority had as a matter of ordinary language provided unaccompanied asylum seeking children with accommodation for the requisite period, once they reached 18 the local authority owed them duties under the Children (Leaving Care) Act 2000. The local authority's argument that they were merely providing services under s 17 was rejected.

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