29 January 2018

December 2017 - Public Law

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Judgement of McFarlane LJ in an appeal by a Guardian against a placement order

W-C (Children) [2017] EWCA Civ 250


  • Case concerned two children, C (8) and D (2) who lived with their mother under an interim supervision order.
  • The LA and children’s guardian initially favoured placing C with a maternal aunt under an SGO. Following the evidence, the LA changed its care plan to one of adoption with D.
  • Following a reopening of the case following the LA’s change of plan, the Recorder concluded that he did not agree with the LA and made an SGO to the maternal aunt.
  • The LA proceeded in seeking a placement order for D. The Mother opposed, seeking D to remain in her care. The Guardian recommended D be placed in long term foster care under a care order and for D to have regular contact with her siblings.
  • The Recorder favoured the LA case and made an order dispensing of the parents’ consent and made a placement order. The Guardian appealed that decision.
  • Despite not being raised by the Guardian’s appeal, the court drew attention to the Recorder’s use of “realistic” in terms of realistic options.
  • The Court concluded that the approach taken by the judge was not in line with the authorities. The question of whether or not an option was realistic should be considered at an early stage and removed from the ‘agenda’ if not a realistic option.
  • Once the final hearing started and the judge grappled the issue of whether the children could remain with their mother or go to another placement, the question of whether one or another was “realistic” was irrelevant and an ordinary full welfare evaluation of the options was needed.
  • Moving to the central prongs of the appeal; the case in favour of long term fostering was established by the Guardian. It was therefore necessary for the Judge to look at the choice between long term fostering and adoption. The Court criticised a lack of any reference to any law that would assist the judge.
  • The Court further criticised the judge in his review of the evidence for not making more than short references to the evidence of the guardian and the social worker. He did not identify the factors in the case for or against long term fostering nor for adoption.
  • Further criticism was drawn by the Recorder’s use of the 1989 Act welfare checklist as opposed to the Adoption and Children Act 2002 and more so a lack of proper evaluation of said welfare checklist.
  • McFarlane LJ concluded that the judge’s approach was not only confused as to the applicable law but also wrong.
  • The case was remitted for rehearing.  



Third party costs orders: whether the Legal Aid Agency had acted unreasonably.

PW & Ors v Luton Borough Council [2017] EWHC 3028 (Fam)


  • The latest instalment in the matter of Luton Borough Council v PW, MT, SW & TW.
  • The current issues in this case being:
    • Whether the claimants’ costs of pursuing their Human Rights Act 1998 claim had been increased by the conduct of the Legal Aid Agency in failing to state whether the statutory charge relating to the costs of the care proceedings would apply to the recovery of their damages; and if so
    • Whether those additional or increased costs should be paid by the LAA
  • The position of the LAA was set out in its position statement: ‘In the circumstances of this case, the Legal Aid Agency considers that the Human Rights Act damages would be ‘property recovered by the individual in proceedings or in any compromise or settlement of the dispute in connection with which the services were provided’.
  • The claimants sought a decision from the LAA as to whether the statutory charge would be applicable to the HRA damages.
  • In correspondence, the claimants’ solicitor drew the LAA’s attention to the judgment of Mr Justice Keehan in H v Northamptonshire County Council [2017] EWHC 282 (Fam) in which the judge made it clear that in this type of case, in advance of the final hearing, the LAA should be invited to make a decision on whether it asserts that the statutory charge will be applicable to any award of HRA damages. The LAA were so invited to make such a decision.
  • Despite this request, the LAA failed to make their position clear on the matter and in the course of correspondence stated: “The HRA claim is not yet concluded and so the decision will be made after you have reported the outcome of that case to the Legal Aid Agency and, if necessary, your file has been considered”.
  • The LAA were once more drawn to H v Northamptonshire County Council in which a costs order was made against the LAA due to delays in its decision-making process.
  • The LAA claimed that they had not delayed/ refused to make a decision but has not been provided with any documentation.
  • In considering the question of whether the claimants’ costs have been increased by the conduct of the LAA, the Court applied s51 of the Senior Courts Act 1981 and had regard to Part 44 and Part 46(2) CPR and the power to make orders for costs against third parties.
  • The claimants relied on the Northamptonshire case for recognition of the courts power to make such orders, that the discretion should be exercised when a third party had increased costs unnecessarily/unreasonably and there is no reason why the LAA should not make a decision before the conclusion of HRA litigation.
  • The Court concluded that it was unreasonable for the LAA to not swiftly act on the request to make a decision and secondly it was being offered the relevant documentation but did not take up the offer.
  • The Court therefore found it was just that the LAA pay additional/increased costs.



Application under s.25 of the Children Act 1989 highlighting the shortage of secure accommodation resources

M (A Child – secure accommodation order) [2017] EWHC 3021 (Fam)


  • Application by Wigan Borough Council for a secure accommodation order in respect of M who had been known to social services for her entire life.
  • The first record of social services involvement dates back to 2000. Eventually, the children including M were received into care in 2010. The chronology of M’s life revealed to the Court a young woman who is “obviously and profoundly disturbed”.
  • Due to her experiences, she suffered multiple placement breakdowns as a result of her behaviour and she has acted in ways that have jeopardised her own safety, that of the professionals working with her and of other vulnerable people.
  • Due to her behaviour, the LA felt that it had reached the end of the line in terms of containment of M’s behaviour.
  • The Court outlined the framework of section 25 which it felt needed to be considered carefully. Section 25 provides:
    • Use of accommodation for restricting liberty.
    • (1) Subject to the following provisions of this section, a child who is being looked after by a local authority may not be placed, and, if placed, may not be kept, in accommodation provided for the purpose of restricting liberty unless it appears –
      • (a) that:-
        • (i) he has a history of absconding and is likely to abscond from any other description of accommodation; and
        • (ii) if he absconds, he is likely to suffer significant harm; or
      • (b) that if he is kept in any other description of accommodation he is likely to injure himself or other persons.
  • Whilst the s25 factors were met, the court also has to consider whether the making of an order is in M’s best interest.
  • Hayden J expressed concern that whilst he had thought that the making of secure accommodation orders were less common, in fact there is an increasing trajectory of such orders.
  • In considering whether the order would be in M’s best interests, Hayden J expressed that in light of the history of the case, containment was a legitimate objective, in that it had the attraction of keeping M and those around her safe.
  • The judge expressed that it was profoundly depressing that the LA had not been able to find a unit prepared to accommodate M. He stated that M, in her present circumstances, remains a risk to herself, her carers and other young people and the public.  For those reasons, the LA’s application was granted.
  • Hayden J had previously forwarded a similar judgment to the Minister of State for Education and would do so with this as the depressing reality is that the current secure accommodation resources are inadequate and echoed the words of President Munby in Re: X (A Child) No.3 [2017] EWHC 2036 (Fam).