Father sought an injunction preventing J, his daughter in interim foster care from changing schools due to the foster carers relocation.
The main issues were:
- Did the LA have authority under s 33 CA 1989 to determine J’s school placement under an interim care order?
- What were the best interests and welfare of J?
- Did the LA adequately consult with the father regarding the proposed change of school?
J was aged 11 and subject to an ICO made on 21 June 2024 and in foster care when her foster carers wished to relocate and move J from her school to another 1&1/2 hours away.
J’s father issued an application under the inherent jurisdiction[1].
The local authority asserted that the issue fell within the exercise of its parental responsibility pursuant to s.33(3)(b) and 33(4) of the Children Act 1989. The mother supported the move as did the children's guardian.
The CG reported ‘J was very clear that she wanted to stay with her current foster carers, knowing this meant a change of school and that it might mean a further change of school and placement if the court decided she should live with one of her parents. J talked with enthusiasm about the foster carers' new home’; and the guardian assessed her attachment to her present carers as strong.
Although slightly simplified, F’s position was that his contact time with J would be reduced.
Law:
The judge recited s33 (1)-(9) in its entirety and at para 48 compressed that into ‘Thus, there are specific restrictions on the power and/or authority of the local authority to take steps in respect of religion, adoption and the use of a new surname. In other respects, the general principle set out in s.33(3)(b) remains good, namely that, when either an interim or final care order is in force, the local authority shares parental responsibility with a child's parents. If the local authority considers it necessary, having consulted with the child's parents, it has the power to determine the extent to which a parent may exercise parental responsibility. This includes decisions about where a child in care goes to school.’
The judge then referred to Herefordshire Council v M, F, Child A, Child B YY, Child D YY v Mrs XX, Mr XX [2021] EWHC 749 (Fam) paras 128 -132 and concluded ‘What is clear from the case law, following the decision in Re C (Children) [2016] EWCA Civ 374, is that the powers vested in the local authority by the making of a care order, whether interim or full, are subject to section 33(4) of the 1989 Act. Thus, a local authority may not override parental responsibility unless it is satisfied that doing so is necessary to safeguard or promote the child's welfare. Therefore, ultimately, if the local authority is so satisfied it is for the local authority and not the parent or any other person who has held parental responsibility to decide where a child in care should go to school, even if, as in this case, it flows from the decision of the foster carers to move.’
Then in the way that only judges can take a dig at Counsel the judge added ‘Though not mentioned in the skeleton arguments prepared by the parties' leading counsel in the care proceedings, I have also had regard to the following when coming to my decision. Section 22(4) of the Children Act 1989 entitled "General duty of local authorities in relation to children looked after by them”.
The judge then added ‘Thus, a local authority is expected to consult with parents where reasonably practicable. In my view, and in accordance with public law principles, that consultation is not simply for the local authority to pay lip service to parental views before making decision about a child in care. However and no doubt recognising that children's lives in the care system are subject to frequent change, consultation with parents must be what is reasonably practicable. That will vary from case to case – in some cases, there may be the luxury of time to hold meetings with parents about a particular issue but, in other cases, events might dictate that parents are told about significant proposed changes at a court hearing without any prior notice. However, engagement with parents is necessary even if the circumstances are not ideal.’
At para 58/60 the judge clarified ‘… the case law makes plain that parental decision-making can be overridden by a local authority where a child is subject to an interim care order’ and added ‘The father asserted that there had been inadequate consultation with him about the change of school.’
The history and process of the LA’s timeline for a possible change of school was carefully gone in to by the judge.
The judge then analysed matters (inter alia) affecting J’s welfare:
- There may be adverse consequences for J in a move
- Her present school is an excellent school
- her present school provides continuity for J, where she has formed new friendships.
- A move will disrupt the logistics of contact particularly with her father
- The care proceedings remain unresolved and the move would be a major change in J's circumstances.
- J is settled and happy with foster carers
- A change of foster home would be much more harmful to J emotionally than a change of school
J's current carers are committed to her and are willing to care for her long-term if she cannot return to the care of either of her parentsIt is not practical for J to remain with her current carers and stay in her present school
[1]”to restrain any change of school or geographic location of the child, inc.luding any preparatory steps, pending further order of the court, in order to preserve the status quo and enable judicial supervision of proposed irreversible steps"
