CD (A Child By Her Litigation Friend, VD) v Isle of Anglesey County Council

The Claimant (“C”) was born on 22 June 1989 and so has just attained the age of 15. She has grave disabilities. She has quadriplegic cerebral palsy and so is wheelchair-dependant. She is also partially sighted and registered as blind. It is agreed that the local authority have various statutory duties towards her. The issue in the proceedings is as to the lawfulness of the manner in which they propose to discharge such duties.

C has an overall IQ of 73, i.e. in the low/average range. Her level of attainment in number work is that of a ten year old and in reading and spelling is that of a seven year old. I will need to refer to her wishes as to the arrangements for her future care; and Miss Guirguis, on behalf of the local authority, does not suggest that her wishes should carry any less significance than those of any other fifteen-year-old. This claim has been heard over one and a half days; and, together with her mother who is her litigation friend, C has been present in court almost throughout. The argument has been a fairly dry forensic exercise, conducted by reference to voluminous documents. One could not have expected C to pay close attention to all of it; but, apart from when a reference to a particular feature of the local authority’s plan distressed her with the result that I had to rise for a few minutes, she sat quietly in court almost throughout.

It is C’s case that, during the past years, as a result of the local authority’s arrangements, she has in effect developed two homes and two families. Indeed the burden of her claim is that the local authority’s proposals for her future wholly fail to recognise the importance of her second home. At all events her primary home is with her mother. The mother’s home is in a village on the main road through Anglesey about eight miles east of Holyhead. The mother is aged 48 and lives in the property with C and C’s older sister, now aged 17. C’s father, who lives elsewhere, plays virtually no role in her life.

The home which C occupies with the mother and her sister represents two former adjoining properties which in about 1998/1999 were bought by the local authority, converted into one home, adapted for C’s needs and then sold to a housing association, which lets it to the mother. No doubt the local authority spent much more in purchasing and adapting the property than they received upon its sale to the association. Elaborate works of adaptation included wheelchair facilities, a lift, a hoist and special washing and lavatory units.

The demands made upon the mother as a result of C’s condition are vast; and, even were the mother not herself afflicted by illness, she would need a considerable amount of professional support in caring for C. The problems, are however, compounded by the mother’s illness, in particular Chronic Fatigue Syndrome (ME) with which she has been diagnosed since 2002. That her normal energy levels should be thus lowered makes her physical and emotional tasks in relation to C monumental. In addition to ME, she has an under-active thyroid, which further increases her fatigue; and for several years she has suffered depression. To the extent that C has been staying at the mother’s home, the local authority have provided support workers who visit the home to a substantial degree, namely for at least seven hours in every full day spent there by C.

C’s alleged second family resides in Llangefni, the town in the middle of the island which lies about 15 miles east of the mother’s home. The home is that of Mr and Mrs R. It has six bedrooms because living there in addition to Mr and Mrs R are Mrs R’s two daughters by her former marriage, now aged 20 and 19; Mr and Mrs R’s own two children, boys now aged 9 and 8; and S, a young man with learning difficulties whom they took into their home on a foster basis and who has remained living there even though he is now 22 years old. The bedrooms are probably allocated on the basis of one for Mr and Mrs R, one each for Mrs R’s two adult children, one for their boys and one for S; that leaves a sixth bedroom available for C. Since April 2002 C has been staying on average for five nights each week at the home of Mr and Mrs R with the approval of the local authority; indeed they have until a few weeks ago been registered as foster carers for her, with the result that the local authority have paid them an allowance referable to her care. It follows that for the past two years C has spent on average only two nights of the week at her primary home with the mother. Just as the local authority have needed to supply support workers to assist the mother in her care of C at her home, they have likewise provided workers to assist Mr and Mrs R, but to a substantially lesser extent.

Notwithstanding that Mr and Mrs R have a bedroom available for C, including a hoist for getting her into and out of bed, their present accommodation is not suitable for her special needs. In particular their facilities for bathing and showering are not able to be used by her. All they can do is to sponge her down in bed. Nor can she be enabled to be placed upon their lavatory. The result is that, when she is in their home, she has to urinate and defecate into a pan set into the seat of her wheelchair. Thus, if C is in the living room when she wishes to do so, the pan has to be placed in position; she has to be hoisted on to it; and everyone has to leave the room. No doubt there are other significant problems about caring for C in the home of Mr and Mrs R, configured as it is in a conventional way. A major area of the case surrounds such difficulties. In particular the inability of C to have a bath or take a shower at the home of Mr and Mrs R led to a situation in which, during her menstrual periods when there was a need for her to be washed frequently, she could not go on the scheduled days to stay with Mr and Mrs R. Indeed, even on days other than during her periods, C had to be ferried back to her home with the mother in order to have a shower during spells when she was staying with Mr and Mrs R; that particular problem has been partly remedied by the ability for her now to have a shower at school before she goes to the home of Mr and Mrs R.

Until June 2003 C went to a mainstream school on the island. In June 2003 she began to attend a school for children with special physical needs called Gogarth School in Llandudno. Thus every day during school term, under arrangements made by the local authority, C is taken by car across to the mainland and along the main road which runs along the coast of North Wales to Gogarth and back again at the end of the day; the journey is about 30 miles each way and probably takes about 50 minutes.

Gogarth, at which C can continue to attend until she is 19 years old, has a facility for pupils to stay overnight. Those who board do so on two nights of each week, half of them on Mondays and Tuesdays and the other half on Wednesdays and Thursdays. It has been a major feature of the local authority’s recent planning for C that she should reside overnight at Gogarth during term time. When in October 2003 these proceedings were launched, the issue between the local authority on the one hand and C and her mother on the other in relation to C’s boarding at Gogarth was stark. Although C enjoyed being at the school and was doing well, she did not then want to stay there overnight. The local authority, on the other hand, were proposing that she should stay there extensively overnight, indeed for four nights each week; and, in making that proposal, they made clear that the school was prepared to allow C to stay for double the conventional number of nights each week notwithstanding that no other child does so.

More recently however the issue in relation to C’s staying overnight at school has narrowed. It narrowed when C began to say, both formally through a Children’s Advocate appointed by the local authority to act as a mouthpiece for her and also informally, that she would like to stay at school for two nights each week like the other pupils who took up the facility to board. In clear terms C added, however, that she did not wish to stay for four nights a week. In the light of those views there has been an interim, without prejudice, agreement that C should begin to stay overnight at Gogarth for two nights each week; and her first night at school was due to have taken place on 28 June. Everyone hopes that C will enjoy that degree of boarding and will benefit from that change in her life; from increased contact with her peers; and perhaps from greater exposure to the facilities at school for developing skills which will make her more independent in the future. Of course it is possible that she will dislike boarding, in which case no doubt the conflict with the local authority would again become wider. But it is not unreasonable to work upon the premise that she will continue to wish to board at Gogarth for two nights a week. That new feature thus narrows the ambit of the dispute. For it follows that the dispute now surrounds the arrangements for C only for the remaining five nights of the week during the 37 weeks of school term as well as for the full seven nights of the week during the 15 weeks of school holiday. Unfortunately not even that narrowing of the issue has enabled the parties to agree upon the arrangements properly to be made for C by the local authority.

As I will explain, it was in about 1994 that the local authority recognised that the mother could not care for C for seven days a week and needed substantial respite in the form of provision to C of foster accommodation elsewhere. From about that time Mr and Mrs R provided respite care under arrangements made by the local authority; and C became a child “who is looked after by a local authority” for the purpose of section 22 of the Children Act 1989. C’s status has ever since remained that of a child looked after by the local authority.

There are reported authorities which stress that in general it is preferable for issues relating to a care plan made by a local authority for children to whom they owe duties to be resolved in the Family Division within an application for a care order rather than in this court; and, as the argument has proceeded, I have certainly wished that I had been able to appraise the local authority’s current care plan for C from the perspective of her best interests rather than of the bare lawfulness of the plan; and that, in doing so, I had been able to receive oral evidence from the local authority, the mother and others. Indeed this judgment could then have been far shorter. But this is not a case where I can complain that the issue has obviously been presented to the wrong court. It is by no means clear that, had they issued proceedings for a care order, the mother would have been content that the local authority should be invested with an order which gave them parental responsibility over C, still less the overarching parental responsibility which flows from a care order; and indeed there might well have been lively argument as to whether even the threshold for the making of a care order, set by section 31(2) of the Act of 1989, had been crossed. So, with all its drawbacks, these proceedings do seem to me to be the only reasonably available way of presenting the issue to a court.

The local authority’s current plans for C are contained in a care plan dated 2 June 2004. They propose that during school term time she should stay at Gogarth on four nights each week, namely Monday to Thursday nights inclusive, and that she should spend Friday evening until Monday morning at the home of the mother. The proposal is subject to three additional provisions. The first relates to support workers who would attend at the mother’s home in order to help her in caring for C: it is proposed that, out of a team of six support workers, such support should be provided for four hours on a Friday night, for eight hours on a Saturday and for seven hours on a Sunday; the second is that on Saturdays C should continue to attend a club run by the local authority; and the third is that on one weekend a month she should go not to the mother but to a residential respite unit on the island known as Bryn Hwfa. For the school holiday periods the local authority propose that, subject to attendance at the club on Saturdays and to the stay at Bryn Hwfa for one weekend a month, C should be at home with the mother, with a vast amount of support, namely on weekdays for one hour in the morning and four hours in the evening, on Saturdays for eight hours and on Sundays for seven hours.

The care plan does not allow for C to stay overnight on any further occasion with Mr and Mrs R. Thus the pattern, stretching over ten years, of a placement of C with Mr and Mrs R as foster parents providing her with extensive respite care is proposed to be brought to an end. In the plan the local authority say that it would be appropriate for C to continue to have ‘contact’ with Mr and Mrs R. By ‘contact’, the local authority, I believe, mean only visiting contact; and their use of the word indicates that it would not be a placement of C with Mr and Mrs R for such period of time as would constitute a foster placement or thus attract the payment to Mr and Mrs R of any foster allowance. That conclusion is fortified by the recent decision of the Director of the social services department of the local authority, made on the day when the care plan was signed, to de-register Mr and Mrs R from their long-standing status as respite foster carers for C. In the light of the fact that, on that day, the Director was well aware that the whole issue of the lawfulness of the local authority’s approach to the future role of Mr and Mrs R in the care of C was to be argued in this court 13 days later, the de-registration, says Mr Patel, was an attempt to present the court with a fait accompli.

In fact, at a meeting on 9 June 2004, an agreement was reached, without prejudice to the contentions of each side, as to the arrangements for C until the end of the present school term on 17 July. The local authority agreed that, until that date, they would turn a blind eye to the placement of C with Mr and Mrs R overnight notwithstanding their de-registration. I need not trouble with the arrangements for C between 9 and 28 June, when she was due to begin staying overnight at school. The arrangement reached for the following three weeks has been that she should stay at school for two nights, with Mr and Mrs R for two nights and at her home with the mother at weekends.

Substantial differences remain in relation to the lawfulness of the local authority’s proposals for C’s care after 17 July 2004, as set out in their care plan.

There is no issue between counsel as to the nature of the duties which the local authority owe to C.

It is the principal submission of Mr Patel on behalf of the claimant that the proposals made by the local authority for the future care of C represent a failure on their part to discharge their duty towards her to promote her welfare by providing a range and level of services appropriate to her needs. I am not sure that it adds anything to his case to seek to augment the statutory duties upon the local authority with their duties not to infringe C’s rights under Article 8 of the Human Rights Convention; but he reminds me of her right to respect for her private and family life and to the clearly established proposition that such right can give rise to positive obligations.

Mr Patel’s assault upon the local authority’s care plan is primarily cast in terms of its alleged irrationality. He says that it has three demonstrable flaws:

For all these reasons, C argues that a rational care plan for her would run along the following lines:

Through Miss Guirguis the local authority counter that their plan for C, which they consider to be positively in her best interests, is at the very least rational. They argue that it would be beneficial for C to spend four nights a week at school and that in particular it would enable her to develop skills for a later, less dependent, life. They argue that, in that other pupils at the school stay there either on Mondays and Tuesdays or on Wednesdays and Thursdays, a programme for C, exceptionally, to stay there for four nights a week would not involve her staying there alone. They argue that, in the light of the level of support offered to the mother, it is appropriate for C, when not at school, to live in her own home, already adapted to her needs at substantial local authority expense; and that the importance for C of the home with Mr and Mrs R has been substantially overstated. The local authority seek to marshal a few concerns about the care which has been provided by Mr and Mrs R to C other than those related to the physical conditions of their home; but their main objection is to those physical conditions which, so they imply, cannot be remedied otherwise than at disproportionate further expense to themselves.

It was in about 1994 that the local authority accepted that they needed to look after C in order to provide respite care. At first C went to the home of Mr and Mrs R for one weekend in six and to another home for a second weekend. Then in about 1998 C began to go to Mr and Mrs R’s home for about one weekend in four and for further periods during school holidays; and her visits to the other foster home ceased.

Early in 2001 Mr and Mrs R told the local authority that the difficulty of attending to C’s hygiene requirements in their home had led them reluctantly to the view that they could not continue to offer an appropriate home for her. In principle the local authority agreed; but within a short time they had asked Mr and Mrs R to continue to provide a substantial amount of care for her. In about April 2002 their care for her became even further extended. That was the time when the mother was diagnosed as suffering ME and when, unwisely in the view of the local authority, she was seeking to care not only for her own two daughters but also for another child. At all events the respite care provided by Mr and Mrs R for C was then increased to five nights per week, namely, in effect, to the nights between Sunday and Thursday inclusive. From the outset of these proceedings Mrs R has alleged that in about August 2002 C’s allocated social worker, Ms Neville, asked her and Mr R whether they would commit themselves to a ten year programme of providing extensive respite to C and that they agreed. Miss Guirguis now says that Ms Neville has no recollection of that conversation; but Mrs R’s assertions in that regard have gone undenied during the eight months of the pendency of this claim.

With C’s greater use of the home of Mr and Mrs R came a greater recognition of its physical unsuitability for her. This prompted the mother to consult C’s present solicitor, Ms Burton, who, on 17 September 2002, sent to the local authority the first of what must now amount to over 100 letters to the local authority on behalf of the mother and, in that C is the claimant in these proceedings, of C and also indirectly of Mr and Mrs R. I should say that, handicapped by the absence of oral evidence, I have struggled to understand why there has been such a wholesale failure to reach consensus around C’s future needs and a precipitation of these extremely expensive proceedings; and in that regard I have noted the content of an independent report, dated September 2003, which indicated that the local authority had developed a sense of coming ‘under siege’ from the volume and persistence of Ms Burton’s letters and demands. Having now read a mass of her letters, I certainly recognise her commitment to pressing the local authority to discharge what she has suggested to be aspects of their duty towards C; but it is far from clear to me that Ms Burton has written letters either calculated to harass the local authority or even reasonably likely to have that effect. Perhaps the conjunction of a highly efficient solicitor and of a very hard-pressed local authority unable to articulate full and speedy responses has led to what the reporter implied, namely a defensive and unconstructive style of local authority response.

At all events, by the letter dated 17 September 2002, Ms Burton pointed out the physical drawbacks of the home of Mr and Mrs R from the perspective of C.

At a Looked After Children review meeting held on 30 September 2002 the local authority noted that a formal assessment of C’s needs was in course of preparation. It was recorded that Mrs R had a very strong relationship with C and had had a very significant input into her life; and that, were the placement with Mr and Mrs R to become semi-permanent, substantial financial help would be necessary in order to adapt their home to meet her needs.

On 25 November 2002 the local authority produced a core assessment of C’s needs. To the assessment were attached contributions from relevant professionals. The community nurse reported that C had an excellent relationship with Mrs R, who was very kind to her and allowed her to open up and discuss her feelings. The nurse concluded that the relationship with Mrs R was very valuable to C. One of the support workers, namely, as it happens, an adult daughter of Mr R no longer living in his home and by then employed by the local authority, reported that, when C was at the home of Mr and Mrs R, she showed none of the unpleasant and even violent behaviour that she showed towards the mother. Also attached to the assessment was a typed document produced by C (but probably with some help) saying that it would make her sad to leave Mr and Mrs R if she was not allowed to go back to stay with them. Among the things that made her happy were, so she said, being able to talk to people like Mrs R. In the body of the report it was stated “C has developed a positive relationship with her foster family. This relationship needs to be further promoted”. But the burden of the assessment seems to have been that the physical problems in caring for C in the home of Mr and Mrs R were better addressed by a reduction of her care there and an increase in the support given to the mother, which would instead enable her to care for C more fully at her home.

There was a facility for the mother to respond to the assessment. She complained that the fact that C regarded the home of Mr and Mrs R as a second family had been ignored in the assessment; that at times she, the mother, needed complete freedom from obligation to care for C; that the assessment seemed to be at odds with the fact that Ms Neville had often recently discussed a sharing of C’s care between her and Mr and Mrs R; that she inferred from the assessment, as I think correctly, that the local authority did not see a role for Mr and Mrs R in continuing to care for C; and that in that regard it failed to take into consideration the views of herself, of Mr and Mrs R, of the community nurse and of C herself.

In a letter to the local authority Ms Burton’s verdict was as follows:

“It is quite hard to escape the conclusion that the role of the foster family in [C’s] care has been down-played within the assessment process in order to avoid the necessity of dealing with the difficult and possibly expensive issue of providing appropriate facilities for [C.]”

She expressed the hope that the local authority’s permanency panel would recognise the importance of Mr and Mrs R for C.

It is an important feature of Mr Patel’s submissions that the local authority’s views about the importance to C of living partly at the home of Mr and Mrs R have repeatedly changed. He says that, from being positive in the summer of 2002, they became negative in the core assessment dated November 2002. He goes on to rely, as being a return to positivity, upon a letter dated 4 February 2003 from the local authority to the member for Anglesey of the Welsh Assembly, whose assistance had been invoked on behalf of C and the mother. In the letter the local authority said:

“The current care plan is to formalise a shared care arrangement between [the mother] and Mr and Mrs [R]. This arrangement needs to be supported by the … Permanency Panel.

An assessment of Mr and Mrs [R’s] property has been undertaken and work will be carried out, with their agreement, when the care plan has been confirmed by the Permanency Panel.

You should be aware that the Authority has already expended £110,000 in adapting [C’s] home. We need to be confident that any further expenditure will ensure that [C’s] needs are met in the long term.”

Although I accept that everything there said was subject to the views of the panel, I think that this letter represents a clear recognition of the importance for C that Mr and Mrs R should continue in effect to share her care with the mother. That such was the local authority’s approach at that time is confirmed by the fact that they laid the proposal of shared care before the Care Standards Inspectorate for Wales, which at that time had a duty to consider the appropriateness of the home of Mr and Mrs R as a small care home for the young adult, S.

Until around this time it had been assumed on all sides that the physical problems presented by the home of Mr and Mrs R in relation to the service of C’s needs could be rectified by works of adaptation. In February 2003, however, an occupational therapist wrote a report, commissioned on behalf of C, in which she indicated that she did not regard it as practicable to effect the necessary works at that home. Thereafter the proposal of Mr and Mrs R, adopted by the mother and C, became that they should move home. There is a scheme, funded by the National Assembly for Wales and channelled through certain housing associations, namely in Anglesey the association named Tai Eryri, under which funds are provided by way of contribution to the purchase of a property on the basis of a non-interest-bearing equity loan. Mr and Mrs R have proposed, and still propose, to sell their existing home and to purchase another home, appropriate or to be made appropriate for C as well as for the other occupants of their home, and to be funded by the equity in their present home, by an equity loan through Tai Eryri and perhaps also by a mortgage of a conventional character funded by themselves. One problem is that the Welsh Assembly has set limits on the overall purchase price of properties subject to contribution out of the scheme. In that this would be a home for a family which would include only three children, namely the two sons of Mr and Mrs R and C, the limit is only £89,400, which would be totally inadequate for obtaining a home of the size which Mr and Mrs R would require. Nevertheless the limits can be waived with the approval of the Assembly. For the last 13 months the principal request made by the mother and, in these proceedings, by C, to the local authority has been to provide active support for the extraction from Tai Eryri of an equity loan which would enable Mr and Mrs R to move and thus also from the Assembly of waiver of the limit. Such would be a solution at no primary cost to the local authority, although of course works of adaptation of whatever property was bought would probably need to be effected and paid for either by Mr and Mrs R or the local authority. It is only the secondary position of the claimant in these proceedings that I should direct the purchase of an appropriate home for Mr and Mrs R, for C and for their other family members, out of the local authority’s own resources.

For reasons which are unclear, and I suspect indefensible, the local authority’s proposal in principle for shared care between the mother and Mr and Mrs R advanced in February 2003 had by April 2003 again turned to a decision to preclude Mr and Mrs R from any future substantial role in the life of C. On 15 April 2003 the local authority wrote to Mr and Mrs R as follows:

“The department feel that the current respite care arrangements are not satisfactory or safe for [C] and even with adaptations the matter of space and time would remain an issue. Also, the Care Standards Inspectorate have raised questions about the space available for all the family including a small home’s resident. This has heightened the department’s responsibility to everyone concerned in ensuring adequate space, time and safety.

However, the department are extremely grateful for the care which has been provided to [C] over many years and hope to co-work with you to ensure her transition to an alternative placement.”

The words ‘and time’, which I have italicised, are relied upon by Miss Guirguis as indicating that even then the local authority had a concern about the placement with Mr and Mrs R which transcended the physical problems, namely a concern that, in the light of their work and other commitments, Mr and Mrs R had insufficient time to devote to C. This point, although again obliquely referred to later, is never developed and, even in the mass of material before me, cannot be said to have been particularised or relied on to any significant extent.

In their letter to Ms Burton of the same day, the local authority said:-

“Clearly, in providing service to [C], we have to be mindful of the quality of the care she receives. Although we appreciate that Mr and Mrs [R] have many positive qualities, we have concerns about their ability to provide comprehensive care to [C] as both permanent foster carers and as owners of a small home.”

Ms Burton responded with a vigorous protest. That fetched a further letter from the local authority dated 24 April 2003, saying that there had been concerns about the level of care offered to C by Mr and Mrs R, including anecdotal reports that her care was undertaken by adolescent members of the household, and that Mr and Mrs R also had an obligation to S which, so they said, seemed to have been overlooked. This was, frankly, a shadowy erection of other problems in the home of Mr and Mrs R, which ran quite counter to the local authority’s approach, even as recently as February 2003, to their candidacy as substantial carers for C.

By the date of a planning meeting, namely 12 May 2003, the local authority were again to some extent altering their position. They expressed the hope of achieving an arrangement for the shared care of C by the mother and by Mr and Mrs R in accordance with a letter which C had sent outlining her wishes; however they highlighted the issues which needed to be addressed before that arrangement could be implemented, namely first the problems relating to the facilities at the home of Mr and Mrs R and second the need to satisfy the Inspectorate that it was fit for S.

The mood of a planning meeting held in June 2003 was even more positive towards a shared care arrangement between the mother and Mr and Mrs R. By then Mr and Mrs R were noted as being prepared to move home in order to secure the necessary facilities for C. Mrs R was noted as saying that she would not be happy to undertake C’s personal hygiene tasks on her own because of C’s weight and the risk that she might make allegations of inappropriate conduct against her; and that accordingly Mrs R would need a support worker to assist in that regard. The action plan, as recorded in the minutes, clearly anticipated that Mr and Mrs R would be likely to move; and the fifth feature of the plan was that the local authority would supply a letter of support to them in their approach to housing associations for assistance.

Three days later Ms Burton wrote to the local authority that she was grateful for their confirmation during the meeting that Mr and Mrs R had come to be considered appropriate as foster carers for C as well as carers for S. It was an upbeat letter foreshadowing future collaboration. The local authority never challenged her assertion that they had accepted at the meeting that Mr and Mrs R were appropriate carers for C.

In July 2003 the local authority told Ms Burton that unfortunately the allocation of funds to Tai Eryri for the current financial year had already been committed. That led Ms Burton to invite the local authority to write a letter to another housing association, namely Clwyd Alyn. The local authority responded that they would be happy to do so if she told them to whom the letter should be directed; and her answer was that it should be sent to Mr and Mrs R themselves and copied to her. Ms Burton added: “… the [Rs] do not seek a payout. They seek practical help”. The local authority never did provide a letter of support for Mr and Mrs R for the purposes of an approach to Clwyd Alyn, whether by sending it directly to them or otherwise. It is, with respect, plainly incorrect for Miss Guirguis to suggest that the fact that the local authority have never provided such a letter related to Ms Burton’s failure to identify an addressee. It seems that, at least among some officers of the local authority, the tide was again turning, this time yet again away from a shared placement with Mr and Mrs R.

In a letter dated 24 July 2003 the local authority reiterated that they were willing to support an application made by Mr and Mrs R to finance the purchase of a new home but did not consider it their role to raise finance on their behalf. They also articulated a complaint that support workers provided by them to help with the care of C in the home of Mr and Mrs R were being required to care for S. This allegation turns out to have been unfounded and has belatedly been withdrawn.

A letter from the local authority’s solicitor to Ms Burton dated 6 October 2003 indicated that they were now seeking to shut the door against the further involvement of Mr and Mrs R in the care of C. He said:

“… the Local Authority believes it has discharged its duty towards this little girl by entering into arrangements to provide her with a property especially adapted to meet her present and future assessed needs in partnership with the Housing Association. The Local Authority’s decision in December 2002 not to duplicate those facilities is considered reasonable. The Local Authority will support [C] being cared for in her specially provided and adapted home either by [the mother] or by Carers.”

By way of reply Ms Burton expressed surprise; suggested that his position was different from the social workers who had accepted that the role of Mr and Mrs R in the life of C was significant; and observed that it seemed that the local authority were reneging upon their assurance that they would support Mr and Mrs R in securing an alternative home.

On 23 October 2003 the application for judicial review was filed.

For the hearing of the claimant’s application for permission to proceed with her claim the local authority filed written submissions in which they averred that they had done everything possible to help Mr and Mrs R to secure other suitable accommodation and, in particular, had provided a letter in support of their application to Tai Eryri. At that hearing itself, however, Miss Guirguis was constrained to accept that no such letter had been written. By letter dated 3 February 2004, Ms Burton, presumably in light of the fact that the new financial year was within sight, pressed the local authority to provide such a letter. Instead, by letter to Tai Eryri dated 17 February, an officer of the local authority wrote:

“ … [Mr and Mrs R] need to purchase a larger property, equipped to meet the needs and requirements of both their fostering tasks and their responsibilities as small home owners.

The local authority is not able to assist them to purchase a larger property, primarily due to their business status as a private small home.

My initial telephone enquiry with your organisation has also indicated that your position is similar to ourselves, i.e. you would not be able to fund the purchase of a larger home for the couple due to the business status of their home. But I would be grateful for a formal response to the above enquiry.”

Ultimately, by letter dated 27 April, Tai Eryri replied to the local authority. It indicated that it was far from clear that it would be unable to contribute to the funding of a home if the only business conducted at it was looking after a young adult, with the result that technically it was a ‘small home’. The letter continued:

“Before we would be in a position to formally approve Mr and Mrs [R] for the Homebuy Scheme, we would of course require Anglesey County Council’s support for the application and the Welsh Assembly Government’s clarification regarding the business use issue.”

In fact, unbeknown to Tai Eryri, the business use issue had fallen away. For, by letter dated 19 April 2004 the Care Standards Inspectorate had informed Mr and Mrs R that S could be considered to be one of their relatives, with the result that their home no longer needed to be registered as a small care home and that the home was therefore being de-registered. Even since the removal of that perceived obstacle to the role of Tai Eryri in helping to fund a new home for Mr and Mrs R, the local authority have not complied with their promise to support their application for such a contribution. Presumably the local authority have taken the view that, notwithstanding the earlier promise, support of that nature would run counter to their position in these proceedings that the role of Mr and Mrs R in C’s life should be substantially attenuated and should not include overnight stays.

Meanwhile the local authority had commissioned a written review of Mr and Mrs R as foster carers. They resolved that it should be chaired by a social worker otherwise than in their employment. It is important to note that the outcome of the review, signed by the Chair on 2 April 2004, was a recommendation that Mr and Mrs R should be registered as foster carers for one named child, namely C. Miss Guirguis has averred that the Chair wrote the review with little reference to the officers of the local authority. That averment has not been previously made; and the extent of the Chair’s exposure to the local authority’s views about Mr and Mrs R, as carers for C, must remain unclear. At all events, in the review, which I note was countersigned by two officers of the local authority, the Chair noted that Mr and Mrs R were caring for C on an extensive basis, namely, subject to school, for five days and nights each week; that Mr and Mrs R proposed to move house in order better to serve C’s physical needs; that they were awaiting the response of a housing association to their request for support in doing so; that the local authority apparently had other reservations about Mr and Mrs R’s care of C, which had not been fully explained to them; and that, even when she was with the mother, C was persistently telephoning Mr and Mrs R, with the result that Mrs R considered that she was in effect providing care for C for seven days each week and should be paid accordingly. I am not surprised that the local authority took a dim view of that suggestion. Nevertheless, in line with the recommendation, the burden of the review was that C’s extensive respite placement with Mr and Mrs R should continue.

It was arranged that the local authority’s fostering panel should consider the review. On 28 April 2004 Ms Neville, as the allocated worker, wrote a report for the panel in relation to it. Her report was negative about Mr and Mrs R as foster carers for C. She referred not only to the physical deficits of their current home but also to the alleged reluctance of Mrs R to undertake tasks referable to the personal care of C due to the risk that C might allege abuse on her part. Such was a misleading complaint because Mrs R had said only that she was reluctant to undertake such tasks alone. Ms Neville went on to query whether Mr and Mrs R had the necessary time to devote to C. Then she continued:-

“Mr and Mrs [R] have worked ‘outside of the care plan’ with [the mother], i.e. agreed to [C] visiting their home or phoning [C] or returning telephone calls to [C] or [the mother], but have then requested additional payments by the Department for ‘these services’. Without a collaborative approach, it is difficult for the Department to accurately monitor a placement or the effect of benefits of sustaining a placement….

It is of concern that they have entered into this type of relationship with [the mother and C] that extends beyond their agreed remit but then feel disgruntled when the Department questions their motives and refuses payment for services that have not been agreed upon.”

I have the distinct impression that, seizing upon an inappropriate request for further payment, Ms Neville wrote an unduly negative report about Mr and Mrs R, which failed to reflect what even the local authority had previously conceded about the importance of their role in C’s life.

At the meeting on 28 April 2004 the fostering panel decided to recommend that the local authority should cancel the registration of Mr and Mrs R as foster carers, apparently without prejudice to any further request for registration which Mr and Mrs R might make in relation to the care of a child who was not disabled. In that regard the panel therefore overrode the recommendation of the independent review. The minute of the meeting is short: it refers almost exclusively to the physical limitations on the ability of Mr and Mrs R to serve C’s needs.

Meanwhile, on 26 April 2004, the local authority had conducted a Looked After Children review of C. The minute of that meeting shows a more balanced approach to the role of Mr and Mrs R in C’s life. It recorded C as saying that she was happy with the present arrangements and that she would like to stay overnight at school for two nights each week. It referred extensively to the physical problems presented by Mr and Mrs R’s current home. It recorded that C had been going to their home for many years; and that the local authority had allowed the situation to continue because C had become so attached to Mrs R. In conclusion the minute recorded:

“There is no doubt that [C] and her mother are very dependant on [Mrs R] and that [Mrs R] has always been there to help her. However, [C] is now growing up and this dependency does need to be reduced a little… [C] can still have contact and respite with [Mrs R], but the facilities at [Mrs R’s] house does make the care of [C] very difficult there.”

The mother’s views about the importance of Mr and Mrs R are recorded in a written assessment of her needs prepared in May 2004 and signed by Ms Neville and the mother. I think that it would be unfair to take Ms Neville’s signature as meaning that she necessarily subscribed to what had been written, apparently by the mother herself. Nevertheless it is important to note that the mother wrote that, in order to maintain her level of care for C at weekends, she needed a complete break from caring for her during the week; that Mr and Mrs R had a strong bond with C; that the mother had always been able to rely on them in an emergency; and that their support for C and the mother had been crucial.

On 2 June 2004, pursuant to orders of this court, the local authority signed a series of important documents which set out their concluded views as to the optimum future arrangements of C.

First they produced an updated core assessment of her needs. The assessment was luke-warm about the importance for C of Mr and Mrs R. It included a contribution from C herself through her Children’s Advocate. In that regard it was recorded that C wished to continue to go to the house of Mr and Mrs R and considered them to be part of her family; that her wish was to stay at Gogarth overnight for two nights as did all the other boarding children; and that she did not wish to stay there for four nights a week, partly because it would reduce her time in the home of Mr and Mrs R and partly because it would single her out from the other children.

Also apparently attached to the core assessment was a report by Ms Neville in which she conceded that Mr and Mrs R had offered a very positive relationship to C; asserted, erroneously, that the local authority had previously assisted Mr and Mrs R in negotiating with local housing associations for a contribution to the purchase of a more suitable property for their care of her; and concluded that they were not in the best position to offer ongoing, long-term care to her in the light of the high level of her physical needs.

In the body of the core assessment Mrs R and the mother were recorded as describing C’s respite placement with Mr and Mrs R as a prop for the mother as much as a placement for C; and as saying that the mother relied upon the placement as relief from the daily routine of caring for her and thus as contributing to her current degree of stability. The mother was recorded as saying that Mr and Mrs R were part of the extended family. In the summary it was stated:

“[C] wishes to extend the positive benefits of Gogarth School and try an initial two nights per week residential place with a possible view of extending this to four nights a week.”

In light of the fact that, through her advocate, C had made clear that she did not wish to stay overnight at school for four nights a week, it was in my view misleading for the author of the assessment to indicate, as apparently part of C’s wish, the possibility of an extension of overnight stays to four nights a week. Such was no part of her wish: it was part only of the local authority’s plan. In the summary the author went on to state that Mr and Mrs R had provided a valuable relationship to C and that contact between them could still continue. It was said that the local authority would be willing to assist in relation to contact arrangements when Mrs R and the mother were in a position to enter into negotiations in that regard. It has been a constant recent refrain of the local authority that they have been unable to particularise their proposals for contact between C and Mr and Mrs R because of an alleged refusal on the part of Mrs R and the mother to discuss it specifically. I accept that the pendency of these proceedings will have inhibited discussion of the details of any such radical reduction in C’s visits to the home of Mr and Mrs R as the local authority propose; nevertheless I cannot understand why the local authority have been unable to craft specific proposals reflective of what they regard as appropriate.

The second major document produced on 2 June was the present care plan. I have set out its details in paragraph 13 above. I should note the assertions in the plan that C’s “wishes and feelings have been considered” and that she “has indicated…that she wishes to stay overnight at Gogarth School”. In that the plan was for her to stay for four nights a week at school and in that she had expressed a wish to stay for no more than two nights per week at school, I consider, with respect, that those assertions were also misleading. In the plan there was what I would regard as a hollow acknowledgment of the importance of maintaining C’s relationship with Mr and Mrs R; and a further exhortation to the mother and to Mrs and Mrs R to enter discussions with regard to the development of a plan for contact.

It was also on 2 June 2004 that the Director acted upon the recommendation of the fostering panel to remove Mr and Mrs R from the register of foster carers. In due course Mr and Mrs R were informed of the decision and told that it did not preclude their future registration as foster carers for a child without disability.

On 13 June 2004, two days before the start of this hearing, the Children’s Advocate for C made a further visit to her. In her report the advocate confirms that C’s views have not changed from those referred to in the core assessment. According to the advocate, C continues to stress the importance of her relationship with Mr and Mrs R and with their various children. C is recorded as having been very upset at the news of the de-registration of Mr and Mrs R as her foster carers and as having asked “How can they take away my family like this?”. She is said to have reiterated her views about staying overnight at school. In her report the advocate concludes as follows:

“Since my first contact with her in September 2003, I have seen [C], at home, at the foster home and at school. [C] appears to be influenced in her thinking to some extent by the adults in her life as any other 14-year-old young person is likely to be. However I am certain that what she has told me on more than one occasion is her own view, whether that coincides with the views of others or not.”

In paragraph 2 above I have referred to the fact that at one point during the hearing C suddenly exhibited distress, which precipitated a short adjournment. That occurred at a time when Mr Patel was referring to the local authority’s proposal for her to spend four nights each week at school.

I have reached the clear conclusion that the proposals by the local authority for C’s future care, set out in the care plan, are unlawful. To be specific, I consider that, if their proposals were implemented, the local authority would:

Each of the three planks of Mr Patel’s argument, set out in paragraph 19 above is in my judgment sound.

The first plank relates to the local authority’s proposal that C should spend four nights a week at school. The objective of inculcating in C a greater sense of independence and of developing more proficient self-help skills, by her staying overnight at school, is entirely rational. But the proposal that, alone among pupils of the school, she should spend four nights a week there has manifest drawbacks, in particular because it runs counter to her clearly and consistently expressed wishes and feelings. Notwithstanding my eleven years of service in the Family Division, I cannot recollect a case in which, otherwise than in relation to secure accommodation, it has been considered seriously arguable that a 15 year old child should be required to reside at an establishment to an extent substantially contrary to her or his wishes and feelings. In this case, as I have pointed out in paragraphs 54 and 55, C’s wishes and feelings have not even been satisfactorily reported by the local authority. That seems to me, by itself, to go a substantial way towards establishing a breach of section 20(6) the Act of 1989. Of course a 15 year old who does not suffer substantial disabilities and who is directed to stay at a location to which she or he has strong objection can, as is the frequent experience of the Division, vote with her or his feet. C can do no such thing; but it would, for obvious reasons, be wrong to pay any less respect to her wishes and feelings in consequence. In particular it should be noted that her wishes and feelings are not in any way capricious. They are based upon the natural wish of any teenager not to be singled out at school as having home circumstances with unique deficits and upon the related feature, namely her wish to continue partly to live with Mr and Mrs R.

The second plank of Mr Patel’s argument is set upon the mother’s need for much greater freedom from overall responsibility for C than is reflected in the care plan. I consider that, in crafting a plan which involves a mass of no doubt expensive support for the mother in caring for C at home, the local authority have, with respect, missed the point. At all events I have not seen the point addressed in any of their presentations. It is that no amount of support can absolve the mother from the duty, while C remains in her home, of being in overall charge of ensuring that C’s manifold physical and emotional needs are served. The mass of evidence in the case compels a conclusion that the mother could not physically or emotionally sustain responsibilities of the extent which the plan would cast upon her.

The third plank of Mr Patel’s argument is set upon the importance for C that a substantial part of her life should continue to be spent with Mr and Mrs R and their family. In my view the mass of evidence as to the importance of Mr and Mrs R in C’s life, arising from the extensive placement of her with them by the local authority over past years, cannot be gainsaid and, in any rational care plan, has to be recognised and provided for. The erratic approach of the local authority to the importance of Mr and Mrs R in C’s life by itself suggests that a rational approach, which subject only to changing circumstances would be a consistent approach, has not been adopted. There was proper recognition by the local authority of the importance of Mr and Mrs R to C up to the summer of 2002; but a failure to give it proper recognition in November 2002; then proper recognition of it again in February 2003; but a further failure to give it proper recognition in April 2003; then proper recognition of it yet again in June and July 2003; but, since then, notwithstanding the conclusion of the independent review in April 2004, again a general failure to give it proper recognition.

Everyone agrees that the physical problems in caring for C in the present home of Mr and Mrs R are great and need to be addressed. But that there is a fault-line in the local authority’s recent appraisal of their role in her life is, I think, demonstrated by what I can only describe as their scraping the barrel in order to find other concerns about their care of C in an attempt to bolster justification for the proposal to effect their substantial removal from her life. I believe that support for that verdict can be collected, for example, from the local authority’s Detailed Grounds of Resistance to the claim, which they belatedly filed and served in May 2004. In relation to the physical problems presented by the home of Mr and Mrs R, the local authority there aver that

“ … it is apparent that Mr and Mrs [R] have not been able to secure funding in order to obtain suitable accommodation and thus they have not been able to fulfil the conditions set by the local authority.”

In that the local authority were in breach of their clear promise to write letters of assistance for Mr and Mrs R in attempting to secure funding, the rejection of their candidacy as part future carers for C on that ground was indefensible. In the grounds the local authority go on to refer to the alleged refusal of Mrs R to undertake the necessary hygiene functions referable to C; and I have pointed out in paragraph 47 why that was a misrepresentation of Mrs R’s position. They then proceed to refer to one occasion upon which, on arrival at school from the home of Mr and Mrs R, C was wearing soiled underwear. They then articulate the allegation, now withdrawn, about the alleged misuse by Mr and Mrs R of support workers in requesting them to care for S. They then revert to the absence of funding of a more appropriate home for Mr and Mrs R and advert to the alleged complication presented by the registration of their home as a ‘small home’ for S; but, by the date when the Grounds were filed and served, the home was no longer so registered.

For the above reasons I declare that the care plan dated 2 June 2004 represents an unlawful decision on the part of the local authority as to how to discharge their duties towards C; and I hereby set the plan aside. I have explained why the de-registration of Mr and Mrs R as foster carers, effected on the day when the care plan was signed, was clearly linked to the decision therein not to provide for their continued role in C’s life otherwise than informally through visiting contact. There is no doubt that, while Mr and Mrs R continue to occupy their present home, it would be rational to decide in principle that they should be ineligible to act as foster carers for a disabled child. But that could have been decided, by de-registration, years ago; and yet it remained undecided until 2 June 2004. The basis, therefore, of the decision that in their current home Mr and Mrs R are inapt foster carers for a disabled child is sound; but the timing of the decision is, in my view, unsound and indeed unlawful. For, unless the de-registration can continue to be ignored, which is not a course which can be favoured, its effect is suddenly to deprive C of any substantial continued presence in what the local authority have encouraged to develop into her second home. It is not a lawful discharge of the local authority’s duties to take action which at a stroke erodes a child’s established life in her second home, particularly in circumstances when a move of that home, so that her carers can more satisfactorily attend to her needs, is, or from now onwards will be, a live prospect. For those reasons I propose also to set aside the decision to de-register Mr and Mrs R as foster carers of C.

Should I make the raft of further consequential orders such as Mr Patel seeks? I believe that, notwithstanding the criticisms which I have felt constrained to make of the local authority in this judgment, they will have the good grace to accept them and will act by reference to this judgment in their future decisions referable to C. Their first task will be to make a new care plan referable to C in the light of it. I believe that I do not need formally to order them to do what they offered to do in the summer 2003, namely to provide active support for the application by Mr and Mrs R for housing association assistance in the purchase of a new home and, as a necessary corollary, for waiver by the National Assembly of its house price limit in their case. I am not minded to make a specific order in that regard; still less am I prepared at this stage to rule upon Mr Patel’s longstop application for an order that the local authority should secure suitable accommodation for Mr and Mrs R and their family, including on a respite basis C, whether out of their own housing stock or otherwise. Miss Guirguis has House of Lords authority on her side for the proposition, perhaps surprising at first sight, that the ‘needs’ of a person to whom a local authority owe duties embrace consideration of the cost of providing them: R v Gloucestershire County Council ex p. Barry [1997] AC 584. It would certainly seem surprising if cost was not one of the considerations which informed the extent of their duties; and perhaps the way in which the legislation was drafted compels a construction that it enters the analysis as part of ‘needs’. At all events Mr Patel’s application for that order will stand adjourned generally, as will his other applications; and I will grant permission to the claimant to restore them, preferably before myself or another of the judges who sits both in this court and in the Family Division. I will be extremely disappointed if, granted goodwill on all sides from now onwards, a solution to the problem of Mr and Mrs R’s accommodation of C cannot be found other than at vast extra local authority expense.