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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> G, R (on the application of) v Nottingham City Council [2008] EWHC 400 (Admin) (05 March 2008) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2008/400.html Cite as: [2008] EWHC 400 (Admin), [2008] 1 FLR 1668 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
R (G) |
Claimant |
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- and - |
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NOTTINGHAM CITY COUNCIL |
Defendant |
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- and - |
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NOTTINGHAM UNIVERSITY HOSPITALS NHS TRUST |
Interested Party |
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Mr David Lock and Ms Shona Rogers (instructed by Nottingham City Council, Legal Services) for the Defendant (local authority)
Ms Marina Wheeler (instructed by Mills & Reeve) for the Interested Party (hospital)
In the care proceedings
Ms Rachel Rowley (instructed by Nottingham City Council, Legal Services) for the Applicant (local authority)
Mr Brian Jubb (instructed by Bhatia Best) for the First Respondent (G)
Ms Maria Mulrennan (instructed by Jackson Quinn) for the Second Respondent (K)
Ms Beryl Gilead (instructed by Sheltons) for the Third Respondent (K's father)
Hearing date: 18 February 2008
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Crown Copyright ©
Mr Justice Munby :
The background
i) G's claim for judicial review;
ii) G's claim that she had been unlawfully separated from her baby, K; and
iii) the care proceedings in respect of K brought by the local authority.
"Under section 97 of the Children Act 1989 no person may publish material which is intended or likely to identify any child as being involved in proceedings under the Act. That provision of course applies in this case and nobody may publish such information.
There is information that the court is prepared to make public, provided that the restriction in section 97 as to anonymity is observed.
The court in these proceedings has not been concerned with the events which led to separation of [K] from his mother during the hours after his birth. Those events were considered in the High Court by Mr Justice Munby earlier this week.
The court in these proceedings is concerned with the welfare of [K].
The removal by court order of a child from the care of his mother soon after birth is a very grave step to take, and is to be taken only when the welfare of the child makes it necessary.
In this case the court has decided that the welfare of [K] requires that he lives in local authority foster care on an interim basis while further enquiries are made and assessments carried out. His mother will have frequent periods of contact with him each week.
When the further enquiries have been made the court expects to be in a better position later this year to make a decision about who should care for [K] and what part his mother and other members of his family should play in his future care."
Events following 1 February 2008
"Where the court makes an interim care order … it may give such directions (if any) as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child".
The principles upon which that jurisdiction is to be exercised have been authoritatively expounded by the House of Lords in two cases: In re C (A Minor) (Interim Care Order: Residential Assessment) [1997] AC 489 and In re G (A Minor) (Interim Care Order: Residential Assessment) [2005] UKHL 68, [2006] 1 AC 576.
i) On 6 February 2008 the local authority produced what was described as a 'final draft' of a revised pathway plan for G.
ii) On 11 February 2008 G filed amended grounds in support of her claim for judicial review (a) alleging that the revised draft pathway plan dated 6 February 2008 was still so defective as to be unlawful and (b) seeking relief (including damages) in relation to her unlawful separation from K.
iii) On 14 February 2008 the local authority filed its acknowledgement of service and summary of the grounds on which G's claim was being resisted.
iv) In accordance with the directions I had given on 30 January 2008 the relevant NHS Trust had been joined as an interested party in the claim relating to G's allegedly unlawful separation from K. On 15 February 2008 the NHS Trust filed its acknowledgement of service.
The hearing on 18 February 2008
i) the judicial review proceedings, in accordance with the order I had made on 30 January 2008; and
ii) the care proceedings, in accordance with the order made by the Court of Appeal on 7 February 2008.
The judicial review proceedings – the pathway plan
i) to arrange the appointment of a "personal adviser" for G: Schedule 2, paragraph 19C;
ii) to carry out an "assessment" of G's needs: Schedule 2, paragraph 19B(4); and
iii) to prepare a "pathway plan" for her: Schedule 2, paragraph 19B(4).
"A local authority shall arrange for each child whom they are looking after who is an eligible child for the purposes of paragraph 19B to have a personal adviser."
Given that the duty is mandatory, and tied to the fact that the child in question "is" an eligible child, it follows, in my judgment, that the duty to arrange for the appointment of a personal adviser arises the moment the child becomes an eligible child. No doubt the process of arranging the appointment of a personal adviser will take at least a few days, perhaps weeks. So the duty is, in my judgment, a duty to secure the appointment of the personal adviser forthwith – in the sense of as soon as reasonably practicable – once the child has become an eligible child. G became an eligible child on 2 August 2006, so her personal adviser should have been appointed as soon as practicable thereafter.
"(1) The responsible authority must prepare a written statement describing the manner in which the needs of each eligible and relevant child will be assessed.
(2) The written statement must include, in relation to each child whose needs are to be assessed, information about, in particular –
(a) the person responsible for the conduct and co-ordination of the assessment;
(b) the timetable for the assessment;
(c) who is to be consulted for the purposes of the assessment;
(d) the arrangements for recording the outcome of the assessment;
(e) the procedure for making representations in the event of a disagreement.
(3) The responsible authority must make a copy of the statement available to the child and the persons specified in regulation 7(5)."
"(1) The responsible authority in carrying out an assessment … shall, unless it is not reasonably practicable –
(a) seek and have regard to the views of the child or young person to whom it relates; and
(b) take all reasonable steps to enable him to attend and participate in any meetings at which his case is to be considered.
(2) The responsible authority shall without delay provide the child or young person with copies of –
(a) the results of his assessment …
and shall ensure that the contents of each document are explained to him in accordance with his level of understanding unless it is not reasonably practicable to do so."
"(1) The responsible authority shall assess the needs of each eligible child … in accordance with these Regulations.
(2) The assessment is to be completed –
(a) in the case of an eligible child, not more than three months after the date on which he reaches the age of 16 or becomes an eligible child after that age; …
(3) Each responsible authority shall ensure that a written record is kept of –
(a) the information obtained in the course of an assessment;
(b) the deliberations at any meeting held in connection with any aspect of an assessment; and
(c) the results of the assessment.
(4) In carrying out an assessment the responsible authority shall take account of the following considerations –
(a) the child's health and development;
(b) the child's need for education, training or employment;
(c) the support available to the child from members of his family and other persons;
(d) the child's financial needs;
(e) the extent to which the child possesses the practical and other skills necessary for independent living; and
(f) the child's needs for care, support and accommodation.
(5) The responsible authority shall, unless it is not reasonably practicable to do so, seek and take into account the views of –
(a) the child's parents;
(b) any person who is not a parent but has parental responsibility for the child;
(c) any person who on a day to day basis cares for, or provides accommodation for the child;
(d) any school or college attended by the child, or the local education authority for the area in which he lives;
(e) any independent visitor appointed for the child;
(f) any person providing health care or treatment to the child;
(g) the personal adviser appointed for the child; and
(h) any other person whose views the responsible authority, or the child consider may be relevant."
"(1) A pathway plan prepared under paragraph 19B of Schedule 2 to … the Act, must be prepared as soon as possible after the assessment and must include, in particular, the matters referred to in the Schedule.
(2) The pathway plan must, in relation to each of the matters referred to in the Schedule, set out –
(a) the manner in which the responsible authority proposes to meet the needs of the child; and
(b) the date by which, and by whom, any action required to implement any aspect of the plan will be carried out.
(3) The pathway plan must be recorded in writing."
"Matters to be Dealt with in the Pathway Plan …
1 The nature and level of contact and personal support to be provided, and by whom, to the child or young person.
2 Details of the accommodation the child or young person is to occupy.
3 A detailed plan for the education or training of the child or young person.
4 How the responsible authority will assist the child or young person in relation to employment or other purposeful activity or occupation.
5 The support to be provided to enable the child or young person to develop and sustain appropriate family and social relationships.
6 A programme to develop the practical and other skills necessary for the child or young person to live independently.
7 The financial support to be provided to the child or young person, in particular where it is to be provided to meet his accommodation and maintenance needs.
8 The health needs, including any mental health needs, of the child or young person, and how they are to be met.
9 Contingency plans for action to be taken by the responsible authority should the pathway plan for any reason cease to be effective."
"(1) The responsible authority in … preparing … a pathway plan shall, unless it is not reasonably practicable –
(a) seek and have regard to the views of the child or young person to whom it relates; and
(b) take all reasonable steps to enable him to attend and participate in any meetings at which his case is to be considered.
(2) The responsible authority shall without delay provide the child or young person with copies of –
…
(b) his pathway plan …
and shall ensure that the contents of each document are explained to him in accordance with his level of understanding unless it is not reasonably practicable to do so."
"It is not part of the personal adviser's functions to undertake the statutory assessment or the preparation of the pathway plan, nor should he do so. The Regulations, in my judgment, show that it is not permissible for him to do so. It is, in any event, undesirable that he should do so. Part of the personal adviser's role is, in a sense, to be the advocate or representative of the child in the course of the child's dealings with the local authority. As the Children Leaving Care Act Guidance puts it, the personal adviser plays a 'negotiating role on behalf of the child'. He is, in a sense, a 'go-between' between the child and the local authority. His vital role and function are apt to be compromised if he is, at one and the same time, both the author of the local authority's pathway plan and the person charged with important duties owed to the child in respect of its preparation and implementation."
"J is entitled to a personal adviser whose function is just that, and whose function is not obscured and compromised by the conflicts and ambiguities which, unfortunately, cloud Mr S's position. The present situation cannot continue and must be remedied."
"To repeat, because the point is so important, and a clear statement of what is required may assist not merely this but other local authorities: A pathway plan must clearly identify the child's needs, and what is to be done about them, by whom and by when. Or, if another aphorism would help, A pathway plan must spell out who does what, where and when …
… A care plan is more than a statement of strategic objectives – though all too often even these are expressed in the most vacuous terms. A care plan is – or ought to be – a detailed operational plan. Just how detailed will depend upon the circumstances of the particular case. Sometimes a very high level of detail will be essential. But whatever the level of detail which the individual case may call for, any care plan worth its name ought to set out the operational objectives with sufficient detail – including detail of the 'how, who, what and when' – to enable the care plan itself to be used as a means of checking whether or not those objectives are being met. Nothing less is called for in a pathway plan. Indeed, the Regulations, as we have seen, mandate a high level of detail."
"has to date acted in breach of its duties to [G] … in failing to conduct a lawful Pathway Assessment and in failing to produce a lawful Pathway Plan for [G]."
i) The entire process should have been embarked upon earlier, in August 2006. The assessment should have been completed by 2 November 2006 and the pathway plan as soon as possible thereafter. In fact the process did not begin until G's leaving care worker was appointed on 19 February 2007.
ii) It is far from apparent that there has ever been a proper process of assessment. The local authority has, even now, as I have said, supplied only the most exiguous information about the assessment and about the process by which the first pathway plan was produced. It has produced none of the documents which, assuming the process to have been properly undertaken, would have been generated in accordance with regulations 5(1), 6(2)(a) and 7(3). And the entire process in February 2007, from the appointment of G's leaving care worker until the preparation of the pathway plan, seems to have lasted no more than a week or so at most. Was it really possible for the local authority in that short time to evaluate all the matters referred to in regulation 7(4) and to canvass the views of all those listed in regulation 7(5)? And if so, where is the record of it which is required by regulations 7(3)(a) and 7(3)(b)?
iii) Even the latest version of the pathway plan exhibits, albeit to a much less marked extent, failings of the kind which I described in R (J) v Caerphilly County Borough Council [2005] EWHC 586 (Admin), [2005] 2 FLR 860, at para [42]. Thus, to take only two examples, under the heading 'Sense of Self' the 'action' identified in the pathway plan is:
"referral to CAMHS … within 14 days to arrange a meeting to explore the possibility of counselling sessions to improve [G]'s sense of self and emotional well being … Leaving Care Team to discuss with [G] within 28 days options available to her as counselling support to identify what sessions would be appropriate for her to attend."
And under the heading 'Education, Training and Employment' the identified 'action' is:
"Discussions to take place with [G] by the end of the month during the course of planned visits as to the range of courses available …"
It is depressing that, over a year after her leaving care worker was appointed, planning for G is seemingly so little advanced. Moreover, the lack of specificity in the pathway plan – the very fact that it is part of the pathway plan to "explore" what counselling sessions would be appropriate for G and to "discuss" with her what courses might be available for her – hardly suggests that the process of assessment, if it ever took place, was very rigorous. If there had been a proper process of assessment the pathway plan would surely be much less tentative and much more precise. Indeed in places the pathway plan reads more like a plan for further assessment of G's needs than a plan designed to meet her assessed needs.
iv) The local authority was also forced to concede that one of G's personal advisers had been involved in the preparation of the pathway plan – that she had her feet in both camps – in a way that R (J) v Caerphilly County Borough Council [2005] EWHC 586 (Admin), [2005] 2 FLR 860, showed to be impermissible.
The judicial review proceedings – the separation of G and K
"Bed booked on [X ward] for [G] and [Y ward] for baby as per plan."
The notes further record a telephone call from a social worker after K was born and before he was removed from his mother:
"social worker returned call … – To adhere to plan of mum/baby to separate wards".
K was removed "separately" to [Y ward] at 5.10am. Finally, so far as is material for present purposes, the notes contain this record timed at 10.20am:
"[social worker] rang from social services to confirm whether [G] and her baby were being cared for on separate wards. I confirmed that this was the case."
At 12.20pm the hospital was notified of my order. G and K were reunited at 12.30pm.
"The terms of this written birth plan were subsequently shared with the mother by the social worker. The local authority says that the mother did not raise objection to this birth plan.
… the birth plan was orally amended to provide that the maternal grandparents of the baby would be able to supervise contact between mother and baby following birth. The plan remained that the baby would be placed on a separate ward from the mother pending discharge from hospital and placement with foster carers.
The local authority verily believes that the mother understood and agreed to this amendment to the birth plan, albeit orally. No objection was raised to it."
No further particulars of any alleged oral agreement are given and it is not asserted in terms (as I would have expected had this in fact happened) that G ever uttered words expressly stating her agreement to the plan.
"the midwife is understood to have explained to the mother that she now needed to take the baby onto a separate ward, in accordance with the terms of the written birth plan … The mother is not understood to have raised objection at this point and the baby was accordingly removed from her care."
"the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention".
"the separation of [G]'s new born baby from his mother on 30th January 2008 at the [NHS Trust] was a breach of [G]'s rights under Article 8 ECHR in that the [local authority] had neither lawful authority nor any consent from [G] for the said action."
"In relation to the alleged unlawful removal of [K], [the local authority] provided [the NHS Trust] with the authority to remove [K] from [G]. It is not for [the NHS Trust] to question the legality of this authority.
Accordingly, [the NHS Trust] would wish to be removed as an interested party".
I appreciate that the NHS Trust had been joined as a party only on 14 February 2008 and that its acknowledgement of service was drafted in haste so that it could be filed on 15 February 2008 (a Friday) in time for the hearing on 18 February 2008 (a Monday). (As against this, the order for the joinder of the NHS Trust had been made on 30 January 2008 and the NHS Trust was aware of the court's involvement, as its own records show, by 12.20pm that day.) Nonetheless, and making every allowance, I have to say that I found what was being said surprising.
"In relation to the alleged unlawful removal of K, employees of [the NHS Trust] acted on the instructions of [the local authority] social work team, unaware of the absence of legal authority for this action.
[G] does not seek relief against [the NHS Trust].
Accordingly, [the NHS Trust] would wish to be removed as an interested party."
"the midwives and doctors in a delivery room in the small hours could not have been expected to understand this. No doubt they acted as they did in accordance with the 'Birth Plan' that had been given to them by their superiors."
The fault, the responsibility, lies with management.
The judicial review proceedings – the order
"AND UPON the [local authority] confirming that it accepts that:
(a) [G] did not at any stage consent to the proposed separation of her baby from her after birth;
(b) there was no consent notwithstanding that (so the [local authority] asserts) [G] had been informed by the [local authority]'s professional staff of the birth plan on 8th January 2008 and had not raised any objections to the proposed plan, which included the said separation;
(c) the failure of [G] to raise objections did not amount to consent (the [local authority] asserts that on various occasions [G] raised differing comments about the birth plan but accepts that on no occasion raised objections to the plan).
AND UPON [G] confirming that (so she asserts) she frequently raised objections to the proposals to remove the baby from her and reiterating that (so she asserts) at no time has she consented to the said separation.
AND UPON the [local authority] by its counsel undertaking:
(a) to provide, within 7 days, a personal advisor for [G] who has not been concerned in the preparation of the Pathway Plan; and
(b) to conduct an urgent review of the arrangements for personal advisors for "eligible children "relevant children" and "former relevant children" within the meaning of the Children Act 1989 and the Children (Leaving Care) (England) Regulations 2001
AND UPON the [local authority] by its counsel further undertaking that, having appointed a personal advisor for [G], the [local authority] will consult with [G] and her Personal Advisor, and will file and serve a Pathway Plan within 28 days, namely by 4pm on Monday 17th March 2008
AND IT BEING RECORDED that declaration (2) below is without prejudice to [G]'s claim that the [local authority] breached her Article 8 Rights by failing to assess the psychological impact of the separation of the mother and child and explore the alternatives to separation
IT IS DECLARED that:
(1) the [local authority] has to date acted in breach of its duties to [G] under the Children Act 1989 and the Children (Leaving Care) (England) Regulations 2001 in failing to conduct a lawful Pathway Assessment and in failing to produce a lawful Pathway Plan for [G]; and
(2) the separation of [G]'s new born baby from his mother on 30th January 2008 at the [NHS Trust] was a breach of [G]'s rights under Article 8 ECHR in that the [local authority] had neither lawful authority nor any consent from [G] for the said action.
AND IT IS ORDERED that:
1 Permission is granted to [G] to apply for judicial review.
2 The application for judicial review is allowed.
3 (1) The issue as to whether any breach of [G]'s Article 8 rights should lead to a formal remedy for [G] shall be determined as between [G] and the [local authority] alone, such matter to be listed with a time estimate of one day before Mr Justice Munby on a date to be fixed (in consultation with the Clerk to Mr Justice Munby) not earlier than 28 days from today.
(2) The [local authority] will make its position on any remedy clear to [G] within 14 days.
(3) The parties shall be at liberty to call oral evidence.
(4) Liberty to the parties to apply to Mr Justice Munby for further directions.
(5) Liberty to the parties to apply to restore on 48 hours notice.
(6) Liberty to [G] to apply to extend the claim to include common law damages, such application to be listed at the same hearing referred to at sub-paragraph (1) above.
4 The [local authority] shall pay [G]'s costs of this action to be taxed if not agreed.
5 There shall be a detailed assessment of [G]'s publicly funded costs.
6 The [NHS Trust]:
(a) is given permission to amend its Acknowledgment of Service by deleting the words from "Baby [G]" to "legality of this authority" and substituting therefor:
"K, employees of [the NHS Trust] acted on the instructions of [the local authority] social work team, unaware of the absence of legal authority for this action.
[G] does not seek relief against [the NHS Trust]."; and
(b) shall be discharged from the proceedings with no order as to costs.
7 Save as aforesaid there shall be no order for costs.
8 This matter and all applications are reserved to Mr Justice Munby unless released by him to another judge."
The care proceedings
"The care proceedings have been further considered by Mr Justice Munby today, 18th February 2008, and it was agreed between the parties that there should be an assessment pursuant to section 38(6) of the Children Act 1989 to which agreement the judge gave his approval."
Anonymity