Category Archives: Care orders

President of the Family Division’s Anger at Legal Aid Cuts

The President of the Family Division, Sir James Munby, was faced with a case where the parents wanted to oppose the removal of their child from their care and place him for adoption.  In circumstances like this, care proceedings would be issued and funding available for the parents, however, this is a case where care proceedings were concluded in November 2012.  When the care order was made there were concerns about the child remaining with his parents as both had learning difficulties, however, following an intense assessment and package of support the local authority’s plan was for the child to remain in his parents care with further assessments carried out in relation to the extended family.

One aspect of a final care order is that it gives the local authority parental responsibility for the child, alongside his parents, however, if they had concerns about the care the child was receiving from his parents then they had the power to remove him from his parents care.  Unfortunately in March 2014 the local authority had concerns and therefore gave the parents one month’s notice of their intention to remove the child from their care.

In these circumstances there is no automatic right to funding.   The parents need to provide details of their income to see if the are eligible for funding.  In this case the parents were £34.64 over the threshold set by the Legal Aid Agency.

This is the issue that the President had; proceedings had been brought by the local authority to separate the parents from their child, as they were not care proceedings the parents were not eligible for funding automatically and their income was too high for them to qualify for legal aid.  The parents had the option to pay for a solicitor privately but their limited income made this impossible.  The local authority had funding in place to instruct a solicitor and the child was granted funding automatically as well as he has no income.

In his judgment the President stated;

“What I have to grapple with is the profoundly disturbing fact that the parents do not qualify for legal aid but lack the financial resources to pay for legal representation in circumstances where, to speak plainly, it is unthinkable that they should have to face the local authority’s application without proper representation…..In these circumstances it is unthinkable that the parents should have to face the local authority’s application without proper representation. To require them to do so would be unconscionable; it would be unjust; it would involve a breach of their rights under Articles 6 and 8 of the [European convention on human rights]; it would be a denial of justice. The child is also entitled to a fair trial…..Thus far the state has simply washed its hands of the problem, leaving the solution to the problem which the state itself has created – for the state has brought the proceedings but declined all responsibility for ensuring that the parents are able to participate effectively in the proceedings it has brought – to the goodwill, the charity, of the legal profession.  This is, it might be thought, both unprincipled and unconscionable. Why should the state leave it to private individuals to ensure that the state is not in breach of [its] obligations under the convention? As Baker J said in the passage I have already quoted, “It is unfair that legal representation in these vital cases is only available if the lawyers agree to work for nothing.”

Samantha Sanders, a lawyer at the Adoption Legal Centre, commented

“This is unfortunately something we are seeing on a daily basis; clients who require our help and support to enable their families to stay together, yet without the support of legal aid they are unable to fund it themselves.  More and more solicitors are doing the work on a pro bono basis with no guarantee that funding will ever be made available.

New guidelines were brought in so that a decision is made as soon as possible for a child, yet if funding is not available for the parents to challenge the decisions made in relation to their child, it does questions the validity of the decisions made by the court and whether they are compatible with Article 6 (right to a fair trial) and 8 (right to a family life) of the Human Rights Act.  I believe that this is an issue we will be seeing more and more as time goes on.”

The judgement of the President, Sir James Munby, in this case can be found here.

The team at the Adoption Legal Centre are specialists in advising both adopters and potential adopters. We can help when adopters are facing challenging problems. If you require legal advice, please contact us on 01484 538421 or via e-mail.

Tick Tock – The Time is Now for Family Members

“There is no time like the present” is an old saying but it could not be more appropriate for family and friends carers and the support groups that work with them.

Frequently when local authorities issue care proceedings, there has been reluctance by family members to put themselves forward as carers in the early stages of the case.

This can be for a variety of reasons. Often it is due to grandparents, aunts and uncles and friends not being aware of the seriousness of the situation. They don’t want to undermine the parents’ chances of resuming the care of the child. The impact has been that family members have come forward at the later  stages of a case when they realise that the child may be heading for adoption or long term fostering. This has led to final decisions in where a child should live being delayed.

However, from October 2013 the government’s Public Law Outline pilot scheme was implemented nationally. Cases will be expected to be completed within a strict 26 week time period.

The implications for family members is that by the 12th day after an application by a local authority for either a care or supervision order has been made,  parents must have nominated alternative family and friend carers so the case can be fully timetabled.  If family members are not nominated by this date then there is a real likelihood that they will not be considered, unless in the most exceptional of cases.

Grandparents and other family members must act quickly to make sure they are going to be considered as carers. Family members can no longer take a back seat and see how the parents do prior to coming forward as in doing so may mean they are not assessed and their grandchild, niece/nephew is placed outside the family.

Commenting, James Cook, Partner with Ridley & Hall solicitors said “They urgently need expert legal advice. Family and friends carers play a significant role in the care of children. The Public Law Outline timetable is tough. And with courts making clear that every avenue of care must be explored before they will support a plan for adoption, it’s vital that kinship carers and those who work with them act quickly.”

For more information on the Public Law Outline, please phone 01484 538421 and ask to speak to a member of the Care department.

Liverpool City Council Fails to Give Adequate Support to 340 Carers

Around 340 carers in the Merseyside area will have their allowances backdated after an investigation by the Local Government Ombudsman (LGO) discovered Liverpool City Council had been underpaying them for years. For full story click here

After Separation Where Do Grandparents Stand With Their Grandchildren?

It is wildly recognised that due to the increase in child care fees, grandparents are coming out of retirement to care for their grandchildren so that the parents can go back to work and earn a living and provide for their family.  Unfortunately, when the relationship between the parents breaks down, the grandparents are forgotten and their contact all too frequently ceases despite the close relationship they have built up with their grandchildren.

Grandparents have always had a right to have contact with their grandchildren, however, due to court procedures, this may appear to be anything but the case.  This is due to the grandparents having to apply for permission to make an application for contact before the judge considers their substantive application.  When deciding whether to grant permission the court considers:-

  1. Whether they have a close link to the child
  2. Whether they are making the application for other purposes other than contact, and
  3. Whether the child will be at risk if the application is granted

Once they have jumped that hurdle they then have to convince the judge and the parents that it is in the best interest of the child that their application for contact is granted.

Will this Change?

Under the Family Justice Review, it is proposed that parents will be expected to draw up parenting agreements which will set out the role the grandparents will continue to play in their grandchildren’s lives.  This document could then be used as evidence if the parents cease offering the contact and an application to court is necessary.  It is hoped that this way children will grow up knowing their grandparents.

Some hoped that the review would look at removing the barrier of leave being granted before the grandparents can make their application but unfortunately that is not the case this time around but who knows what will happen in the future.

Samantha Sanders is a solicitor in the Care Proceedings and Adoption team.  She can be contacted by phone, 01484 538421, or by e-mail,

Doncaster Council Slammed For Childcare Services Failings

To view story in Daily Mail click here

To view story and footage in the Yorkshire Post click here

A Doncaster mother of 5 children is seeking legal advice after breaking her silence about a horrifying bungle by social services when she gave birth to her daughter Victoria on 23rd August 2011.

Kelly McWilliams, 36, is still shocked at what happened; “My midwife made a referral to social services in February 2011 when I was in the early stages of pregnancy.  Shortly after that I had a meeting with someone from social services and everything seemed to be fine.  When I was in hospital on 23rd August 2011 giving birth I couldn’t believe it when two social workers turned up and said that as soon as my baby was born she was going to be taken into care.”

Kelly’s solicitor Sarah Young of Ridley & Hall Solicitors commented: – “During the night of the 22nd/23rd August 2011, without any warning to Kelly, Doncaster Council obtained an  emergency protection order from Doncaster Magistrates’ Court.  On 23rd August they applied for an interim care order – this is a clear case of a local authority wrongfully taking a child away from her parents, given the lack of social services’ involvement before Kelly gave birth”.

No one disputes that the referral to social services should not have been made.  Kelly and her family have had difficult times:

“For several years my husband and I had been trying for another child.  Our son had tragically died aged 10 in 2008 and I had found it very difficult to cope.  I have limited mobility following a stroke in 2001 and have in the past suffered from mental health problems – but they have been in remission for 5 years.   I was confident that I would be able to cope with a new baby; I was physically and mentally in a good place and we were delighted when I became pregnant.”

Sarah Young went on to say “It was not until the 9th December 2011 that the court ordered that Kelly’s baby Victoria was to be allowed to live with her again.  She had had contact with her daughter but it was clearly a very difficult and distressing time for Kelly – the care proceedings did not end formally until the 20th February 2012 by which time Kelly had developed post traumatic stress disorder”.

A report prepared by the Children and Family Court Advisory and Support Service (CAFCASS) on 13th February 2012 found: – “There was no pre-birth assessment or initial case conference commissioned by the local authority in this matter.  Had there been these proceedings may not have been initiated.  It seems that a midwife referred matters to the local authority in February 2011 at which point it was too early to begin a pre-birth assessment and the referral then sat in the children’s assessment team until 20th July 2011 when it was allocated but no work done.  The case was then allocated to social worker  X on 18th August 2011, 3/4 days before Victoria was born.  The first contact made with mother was during her labour when she was told that her baby would be removed from her care whilst assessments were made in relation to her ability to care for Victoria”.

While she was in labour, Kelly rang a solicitor, Rebecca Croft, who ensured that baby Victoria’s dad was allowed to look after her during the case.

26 hours of social work assessments, including psychiatric and psychological evaluations were carried out which supported Kelly’s belief that she was able to be a good parent to Victoria. She was offended at how she was treated:  “I was an experienced mum and yet I had to be supervised all the time that I was caring for Victoria. That was awful, but it’s important for me to say that I am truly grateful to the children’s guardian appointed by the Court – without her support I couldn’t have got through the proceedings.”

Kelly feels angry and frustrated at how she was treated by Doncaster Social Services: – “I am constantly terrified that there will be a knock on the door and that someone will come to take Victoria away from me.  There were lots of false and hurtful allegations in the statements that the council filed at court – I managed to prove that they were false and I can’t believe that no one has to take responsibility for that”.

The legal position is that although there may have been a breach of Kelly McWilliams’ human rights under article 8 of the Human Rights Act (which protects the right to family life) the value of the claim does not justify the cost of legal proceedings.

Solicitor Sarah Young shares Kelly’s frustration: – “The law relating to claims against a local authority where they have wrongfully removed a child is aimed at concern for the child rather than the parent. If Victoria had suffered harm as a result of the removal she would have a case against Doncaster.  I am investigating whether a claim can be brought against Doncaster. My fear is that because it is her mother that has suffered post traumatic stress disorder, no remedy will be available”.

Victoria is now a happy healthy 18 month old and has a close and loving relationship with her mother.

The heavy handed nature of Doncaster’s approach is a worry for those who had hoped that they had learned lessons from the chaotic situation that had arisen in 2009 when 7 serious case reviews hit the headlines.

On 16th November 2012 a highly critical OFSTED report said that Doncaster was “not doing what is required to keep children and young people safe”.  The report said that inspectors saw “too many cases” during an inspection in October 2012 where the social work service was not doing enough to protect children.  Vulnerable children in the borough have experienced or were put at risk of “significant harm”.  OFSTED awarded the lowest possible rating for the department’s effectiveness, leadership and governance and quality of practice.

None of this comes as any surprise to Sarah Young: – “In 2009 I acted for the family of Warren Jobling, a little boy who died in respite care in Doncaster and was the subject of a serious care review.  At that time it was clear that Doncaster Social Services was in crisis.  Nothing seems to have changed and I believe that if radical steps are not taken soon there will be another tragedy in Doncaster”.
Sarah Young is a Partner with Ridley & Hall Solicitors. She specialises in contentious probate and personal injury. Sarah has an LLM in Personal Injury Law and has a record of bringing the most complex cases to a successful conclusion.

For further information please contact Sarah Young of Ridley & Hall, Queens House, 35 Market Street, Huddersfield, HD1 2HL on 01484 538421 or mobile 07860 165850.

Judge gives grandma the right to challenge Derbyshire County Council’s residence allowance policy

A high court judge has given a 67 year old Derbyshire grandmother permission to challenge a key policy of Derbyshire County Council.

The grandmother has been caring for her grandson who is now 13 since 2000. At one stage she was also caring for her grand daughter as well. The children had been placed with her by Derbyshire Social Services and they had encouraged her to apply for a residence order.

The County Council agreed to pay her a residence allowance. This was on the basis that if the grandmother had not stepped forward the children would have gone into foster care. The children’s’ parents were not able to properly care for the children.

Commenting on the case Nigel Priestley Senior Partner at Ridley and Hall, the specialist grandparent carers solicitors said “The grandmother was caring for 2 very demanding and damaged children. For over 12 years she worked closely with Social Services to get them the support they needed. I enquired as to the level of payment my grandparent carer was receiving. Alarm bells began to ring.  I was surprised at how low the residence allowance payments were.

It was then that I found, firstly, Derbyshire County Council’s payments in respect of fostering allowances and secondly, a report dated the 26th July 2011.

Foster carers who are “mainstream fostering” for children aged 11-15, get a fostering allowance paid by Derbyshire of £156.00 per week.

I found a report of the Deputy Chief Executive and Strategic Director. A decision was made in July 2011 to increase the special guardianship allowance to the same level as the fostering allowance.  The report contained a warning that the cabinet chose to ignore. The county council made a decision, that “all other adoption and residence order allowances will be maintained at 58% of fostering allowances although it is possible that these allowances will be subject to future legal challenge”.

If this was a prophetic remark by the Deputy Chief Executive, it is a prophecy that has come true!

Derbyshire appear to have a habit of moving grandparents caring for their grandchildren onto residence orders within care proceedings. The county council at best then pays a residence allowance, is 58% of the fostering allowance, just over £70 per week. Derbyshire has deliberately chosen to get child care on the cheap.

I wrote to Derbyshire about their policy. It’s my view that their policy is unlawful. The letter back failed to address the issues in the case.

We then issued a judicial review application. The county council’s response again failed to deal with the central issue.. His Honour Judge Behrens sitting as a high court judge has granted permission for the grandmother to challenge the county council’s policy.

This is an important case – Derbyshire are not alone in paying grandparent carers with residence orders significantly less than foster carers. I bam staggered that at a difficult time for local authorities the county council is spending council tax payers money to defend the indefensible.”

Commenting the grandmother who cannot be named for legal reasons said “I am 67 and survive on my pension. I am shocked that the county council can treat me and other carers like me in this way. I have to count every penny. It would have cost the county council a fortune if they had had to put my grandchildren into foster care”

For further information please contact Nigel Priestley or call 01484 538421

Front page of Derbyshire Telegraph: click here to view