Introduction – Case Reports 2019 Volume 1

Severe mental health issues among teenagers, the question of the appropriate jurisdiction to hear child protection cases and the particular problems of some members of ethnic minorities are among the issues revealed in the latest volume of case reports published by the Child Care Law Reporting Project.

Forty-seven reports were published on its website on 8th July, including six from the High Court and one from the Court of Appeal. The remainder were heard in the District Court in most areas of the country. However, the CCLRP has learned that in some parts of the country, contested cases ready for hearing could be heard because of a shortage of District judges. In some areas, when the sitting judge has heavy lists of regular cases, he or she asks for the assistance of a moveable judge to hear contested cases that may be lengthy, and they are not always available when requested.

In a new development the project saw a number of cases where the High Court made teenagers wards of court in order to facilitate their transfer out of the jurisdiction for therapeutic treatment in specialist centres in the UK. This followed a change in the way in which the High Court dealt with secure care, which it had previously done under its own, inherent, jurisdiction.

In January 2018 the High Court began to operate under statute rather than inherent jurisdiction. The Child Care Amendment Act 2011 had been commenced and it stipulated that special care orders must be applied for under Part IVa of the 1991 Act, as amended. However, the amended Act did not provide for the making of long-term orders for detention in special care mental health therapeutic services outside of the jurisdiction. Therefore the High Court judge made orders that the children be placed in mental health facilities outside of the jurisdiction under the court’s protection. The orders made by the High Court judge in Ireland regarding wardship would then be mirrored by the Court of Protection in London.

In another unusual case a girl in secure sought and obtained her own independent legal representation, separate from her guardian ad litem. She did not wish to be in secure care, though her guardian ad litemsupported the application as in her best interests. She sought and obtained the right to be a party to the proceedings herself, her own solicitor and counsel were appointed for her and she viewed the proceedings via video-link from her special care unit. She appealed the secure care order to the Court of Appeal, but the Court of Appeal upheld the High Court’s secure care order as in her best interests.

The High Court also heard a number of judicial reviews of decisions of the District Court and of the CFA. It rejected a challenge by the CFA to a decision of the District Court that children in care should be placed some of the time with their older sister, who had cared for them previously, on the basis that she had not been assessed as a foster carer by the CFA. The High Court found that the District Court had jurisdiction to give such directions concerning the welfare of the children.

Another judicial review involved a boy who was also facing charges for assault and robbery in the criminal justice system. Here the High Court found that a decision by the CFA’s committee on special care not to admit an application for his secure care was not made in accordance with the Child Care Act, as amended.

Reflecting the CFA’s concerns about children with mental health issues, the District Court made orders under the Mental Health Act for children to be detained in residential psychiatric facilities due to their severe mental health problems. In another case a child was placed in an ordinary residential care unit while undergoing a psychiatric assessment.

This volume also contains cases involving very vulnerable parents, including two where the parents had their own guardians ad litem. In one the 16-year-old mother had a disability, and the court was asked to appoint a GAL for her and to decide on a point of law who should pay for it. The Legal Aid Board argued that it had no basis for doing so, while the CFA maintained that it had a statutory duty to follow the case. The GAL was appointed without the issue being finally resolved and an interim care order was granted for the mother’s baby, while a parenting capacity assessment was being carried out.

In another case, also involving a mother with a disability, a GAL was appointed as the CFA feared she was being forced into marriage. After a few appearances the mother, from an Asian country, disengaged from the proceedings. In a number of other cases, vulnerable parents were not appointed a GAL, but were appointed an advocate to assist them in understanding the proceedings and dealing with their lawyers and social workers.