Legal Updates

In Re: J (A Child) (Care Proceedings: Disclosure) a local authority started care proceedings in respect of a child aged about 11 months who had been accommodated with them since shortly after birth. 

The day before the hearing of an application for an interim care order, the foster father having been arrested on suspicion of involvement in child pornography, the authority moved the child to another foster home. They had him medically examined, without giving the mother the true reasons, telling her it was routine. She was also told that the carers were unable to continue with the placement for ‘personal reasons’.

At the hearing the authority did not inform the court of the position. After six weeks a children’s guardian was appointed and asked to see all the authority's papers including a report on the practice in the case. The authority resisted disclosure on the grounds of public interest immunity and its duty of confidentiality to the foster carers.

Mr Justice Wall ordered disclosure and held that the guardian was entitled to see the report as it came within the scope of Section 42 of the Children Act 1989. Questions of public interest immunity and confidentiality did not arise in relation to the guardian in view of the provisions of Section 42(3).

The judge criticised the authority stating that its ‘defensive, indeed obstructive’ attitude had complicated the proceedings, increased costs and was “so fundamental a breach of its duty to the child and the court that censure is unavoidable”.

Comment: This was a case which demonstrated the problems caused by the failure of the Children and Family Court Advisory and Support Service (CAFCASS) to appoint a children’s guardian promptly. Mr Justice Wall said the case could have been avoided if the children’s guardian had been appointed within the recommended target of two days from the institute of care proceedings instead of the six weeks it actually took.

Richard White

White and Sherwin Solicitors