Abolarin, R (on the application of) v Liverpool City Council

The Claimant had been approved as a foster carer by the Defendant since 2009. On 25^th November 2016 the Defendant informed the Claimant that having reviewed his suitability to be a foster carer it had decided not to continue that approval. That decision was taken in accordance with a recommendation from a fostering panel (“Panel B”) which had met on 12^th October 2016. The recommendation from Panel B had been made following its review of a recommendation to the same effect from a panel (“Panel A”) which had met on 19^th April 2016. The Claimant seeks quashing of the Defendant’s decision on the basis that it was flawed by unfairness and irrationality. Permission was given by HH Judge Moulder (as she then was) on three grounds two of which concerned fairness with the other relating to rationality.

The Defendant had first approved the Claimant as a foster carer in early 2009 (the Claimant asserts that the approval was on 31^st March 2009 but there are also references in the papers to that approval having been on 25^th February 2009 or 5^th March 2009 – the precise date does not matter for present purposes). At that stage the Claimant had been approved together with his wife, Joy. Sadly Mrs. Abolarin died on 9^th September 2013.

Following Mrs. Abolarin’s death difficulties arose between the Claimant and the Defendant’s Fostering Service and the service raised concerns as to the Claimant’s continued suitability as a foster carer. Those concerns had been considered at a meeting of a fostering panel on 10^th June 2015. At that stage the Claimant’s approval was continued. However, from the viewpoint of the Defendant’s Fostering Service the problems did not resolve and on 18^th February 2016 a report was made recommending the termination of the Claimant’s approval as a foster carer. That report was considered first by Panel A and led ultimately to the decision of 25^th November 2016.

The approval of foster carers and the termination of that approval is governed by the Fostering Services (England) Regulations 2011 (“the Regulations”). The constitution, membership, and meetings of the fostering panel are provided for thus by the material parts of Regulations 23 and 24.

It will be seen in due course that both Panel A and Panel B had a markedly higher proportion of independent members than was required under the Regulations.

Regulation 25 provides for the fostering panel to recommend to the local authority whether a particular person is or remains suitable to be a foster parent. By virtue of Regulation 27 a potential foster parent cannot be approved unless that person’s application has been considered by a fostering panel and the fostering service provider has taken account of the recommendation of the fostering panel.

Regulation 28 sets out the provisions governing the review of the approval of foster parents. Such review must take place within a year of the first approval and thereafter (Regulation 28 (2)) whenever the fostering service provider considers it necessary “but at intervals of not more than a year”. Regulation 28 (5) provides that the service’s report must be provided to the fostering panel on the occasion of the first review and that it may be provided on subsequent reviews. Regulations 28 (7) and (10) provide as follows for a foster parent whose approval the fostering service provider proposes to terminate to have an opportunity for review by the fostering panel or an independent review panel operating under the aegis of the Secretary of State.

The report of 18^th February 2016 set out a number of concerns on the part of the Defendant’s Fostering Service. Those concerns focused on the Claimant’s ability to work in partnership with the Fostering Service. It was said that the Claimant had failed to be open with that service; that he had not been truthful to the social workers responsible for working with him; and that he had failed to show that he could work in partnership with the service. The report referred to a number of occasions when it was alleged that there had been such failures. These related to matters such as an alleged lack of openness on the Claimant’s part about the gravity of his late wife’s illness; about his relationship with his new wife and her pregnancy; and about arrangements being made for visitors to come to his home. The report referred to alleged incidents which had occurred both before the 2015 panel hearing and subsequently. In essence the thrust of the report was that there had been a failure to work in partnership with the Fostering Service and that the lack of openness and honesty which was said to have been evidenced in the period before the 2015 had continued since then.

The Claimant made a detailed written response to that report. That response ran to forty-seven pages. In the response the Claimant accepted that with hindsight he could have dealt some matters differently. However, he did not accept the accuracy of the allegations being made against him. In addition the Claimant contended that much of the report related to old matters which should be regarded as having been “dealt with before and previously laid to rest”. The Claimant’s position was that to the extent that the older matters were correct they should be regarded as having been considered at the earlier review (or indeed before that). As they had not resulted in the termination of his approval at that stage the Claimant contended that they should not be taken into account in deciding whether approval should be terminated in 2016. The position of the Fostering Service was that the previous incidents demonstrated a pattern of behaviour which had continued notwithstanding the chance or chances which the Claimant had been given to improve cooperation with the service.

Panel A met on 11^th May 2016. The panel considered the Fostering Service’s report and the Claimant’s response. In addition it received oral submissions from Kate Lee and Sue Bence (both Supervising Social Workers in the Defendant’s Fostering Team) and from the Claimant.

Panel A had seven members. One of these was the Independent Chair of the Defendant’s Fostering Panel. Four further members of Panel A were independent members and of these one was a foster carer and two were social workers. The other two panel members were employees of the Defendant one being a consultant social worker and the other a Children’s Centre Co-ordinator. Panel A was attended by an administrator to take minutes and three advisers. Those were a medical adviser, a legal adviser, and Viv McCrossen. Miss. McCrossen is described in the minutes as “panel adviser”. I note that Miss. McCrossen sent her apologies for non-attendance at the meeting of Panel B and in the minutes of that panel she is described as “Independent Panel Adviser”.

The minutes of the meetings of Panel A and of Panel B were provided to the Claimant and to the Court. They were provided in a redacted form. It seems that the short redaction in respect of Panel A’s minutes was not noticed until I drew counsel’s attention to it at the trial. In each instance the redactions were of parts of the deliberations of the panel in question. In the case of Panel A the redaction was of part of the deliberations which were conducted after the panel had heard the oral submissions. In respect of Panel B the redaction was of the panel members’ initial discussions in which they set out the views they had formed having considered the papers in advance of hearing the oral submissions. The core issue in this case was the fairness of the procedure adopted by the panels and by the Defendant acting on the recommendations of the panels. In those circumstances it was wholly inappropriate for redacted minutes to be supplied. On behalf of the Defendant Mr. Vaughan immediately accepted this, apologised, and arranged for unredacted minutes to be supplied quickly. I am satisfied that the redaction of the minutes was not done with any malign intent on the part of the Defendant wholly inappropriate though it was. I will proceed on the basis of the unredacted minutes. In her Response to the Defendant’s Further Submissions Miss. Mensah contended that the full version of Panel A’s deliberations provides a further ground of challenge to the decision. In the circumstances it was not open to the Defendant to argue that the Claimant should not be allowed to raise a challenge based on the full minutes and I have considered Miss. Mensah’s further argument below.

By a majority of 6:1 Panel A approved the recommendation that the Claimant’s status as an approved foster carer be terminated. This was on the footing that there was insufficient evidence that the Claimant understood his rôle as a foster carer and there was evidence supporting the assertion that he had failed to follow the Foster Care Agreement between him and the Defendant and the obligations imposed by the Fostering Service Regulations. The panel gave six reasons for the recommendation broken down by reference to particular standards set out in the National Fostering Standards.

On 9^th June 2016 Bernie Brown, the Defendant’s Assistant Director of Children’s Safeguarding and Quality Services, wrote to the Claimant saying that he proposed to accept the recommendation of Panel A. Mr. Brown explained that if the Claimant disagreed with the proposed course he had a choice between two options. The first was making written representations. Mr. Brown said “any such representations will be referred back to the Fostering Panel for further consideration and I will make my decision taking into account any fresh recommendations made by the Fostering Panel.” The second was to make “a formal application to the Independent Review Mechanism” as provided for in the Regulations.

On 29^th June 2016 the Claimant said that he wished to take the first of those two options. On 20^th September 2016 the Claimant set out his further submissions in an eighteen page letter.

Panel B met on 12^th October 2016. It was made up of seven members. Three of these had been members of Panel A. Those were the Independent Chair and two of the independent members (one a foster carer and the other a social worker). There were three further independent members (including a social worker) and one employee of the Defendant who was a consultant social worker.

The panel was attended by a minute taker and a medical adviser. In addition Mr. Paul Kelly was present. The minutes describe him as “Panel Adviser – Fostering Team Leader”. This panel was not attended by a legal adviser and as I have already noted the independent adviser, Miss. McCrossen, had sent her apologies.

The Claimant contends that Mr. Kelly was a leading member of the Fostering Service and that the service’s recommendation that the Claimant’s approval be terminated was the very matter the panel was considering. The Claimant says that not only was Mr. Kelly a senior member of that service but that he had been involved in the service’s dealings with the Claimant. The Defendant says that this characterisation over-simplifies the position and that Mr. Kelly was not the team leader of the social workers who were recommending that the Claimant’s approval be terminated.

The documents put before me show a more nuanced picture than either of those assessments of Mr. Kelly’s rôle and of his dealings with the Claimant although I am satisfied that there was a greater and more significant involvement than the Defendant conceded. The recommendation for the termination of the Claimant’s approval was contained in the report of 18^th February 2016. That report was compiled by Kate Lee who was described as a “Supervising Social Worker” and whose team leader is said in the report to have been Pat Brassington. However, it is apparent from the report itself that Mr. Kelly had been involved in the Defendant’s dealings with the Claimant. Thus:

It follows that Mr. Kelly was not the team leader of the social worker making the report and presenting the Defendant’s recommendation to the panel. However, he had been involved in giving direction to that social worker at points in her dealings with the Claimant; he had personal knowledge of the concerns which that social worker and others had; and he had been one of those who had represented the Defendant in meetings with the Claimant where those concerns had been expressed and in particular at the meeting where the Claimant had been told that the Defendant did not intend to give him any further opportunity to change his approach.

Panel B heard representations from Kate Lee and Sue Bence and from the Claimant. Those persons then withdrew and the panel members deliberated. The minutes record a comment from Mr. Kelly at the start of that deliberation thus “in response to [the Claimant’s] contribution to Panel Paul Kelly commented that where [there] is a pattern of concern then it is legitimate for past incidents to be discussed and considered.”

Panel B confirmed the recommendation that the Claimant’s approval be terminated. It adopted the six reasons set out by Panel A and added two further reasons. These were that the Defendant could not have confidence that the Claimant would work in partnership with its staff “in an open and transparent manner” and that the Claimant did not appear to appreciate the impact on the children in his care resulting from the withholding of information.

The decision of Panel B was unanimous. The minutes of Panel B’s meeting contain a summary of the reasons for the recommendation of Panel A. That summary says that Panel A’s recommendation had been made unanimously. That was not the case. There had been one dissenter at the meeting of Panel A. However, that error in what the minutes of Panel B say about Panel A’s deliberations is not material. It is to be noted that the members of Panel B were provided with the minutes of the meeting of Panel A and those minutes make it plain that there was a difference of opinion. In addition three members of Panel B had been present at the earlier meeting. Accordingly, it is apparent that the members of Panel B were not being misled as to what had happened at Panel A’s meeting.

On 25^th November 2016 Suzanne Metcalfe, the Defendant’s Agency Decision Maker, wrote to the Claimant adopting the recommendation of Panel B and terminating the Claimant’s approval.

On 18^th July 2017 HH Judge Moulder gave permission for judicial review on the following three grounds:

In the course of the hearing it became apparent that there was scope for argument that there was unfairness not just by reason of Mr. Kelly’s attendance at the meeting of Panel B but also as a consequence of the fact that Mr. Kelly had made representations to that panel in the absence of the Claimant and in circumstances where the Claimant had not been given an opportunity to respond to those representations. That potential argument, which arose in large part from concerns I raised during the hearing, had not been addressed directly in the skeleton arguments of either side and I gave permission for and received sequential written submissions addressing that issue.

The relevant decision was that of the Defendant but it was acting on the recommendation of Panel B.

Initially Mr. Vaughan, for the Defendant, sought to place some weight on the fact that in terminating a foster carer’s approval under Regulation 28 the Defendant had to take account of the recommendation of the Panel but was not bound by it. In that line of argument Mr. Vaughan was seeking to say that attention should be focused on the decision of 25^th November 2016 and in particular on the approach taken by Suzanne Metcalfe, the “Agency Decision Maker” who made that decision. Mr. Vaughan was right to say that the relevant decision was that of 25^th November 2016. However, modifying his initial stance, he rightly accepted that if the recommendation of Panel B had been flawed by reason of unfairness or irrationality in circumstances where the Defendant’s decision maker realised or should have realised this then a decision made implementing that recommendation could not stand. Accordingly, Mr. Vaughan accepted that the key issue was the fairness and rationality of that panel’s recommendation. In addition Mr. Vaughan accepted that the requirement of procedural fairness applied to the proceedings of Panel B. It was, however, his position that what was required by procedural fairness depended on the particular circumstances and that account needed to be taken of the nature of the exercise being performed by the panel and of the position and experience of the members of the panel.

In her skeleton argument on behalf of the Claimant Miss. Mensah had made reference to the Claimant’s rights under Article 6 of the European Convention of Human Rights. However, in the course of her submissions Miss. Mensah accepted that in the circumstances of this case the reference to Article 6 added nothing material to the requirement that Panel B and so the Defendant should act fairly and rationally in coming to a decision terminating the Claimant’s approval.

The first two of the grounds relied upon invoked the requirement of fairness. The Detailed Statement of Grounds for Judicial Review appeared to allege actual bias on the part of Mr. Kelly and of the members of Panel B. It became apparent during argument that the Claimant’s case was not being put that highly. Indeed, there would not have been any basis for such a contention. Instead the Claimant’s case was put on the footing that the recommendation of Panel B was to be seen as tainted by unfairness on the ground of apparent bias by reason of the involvement of Mr. Kelly and/or of persons who had been members of Panel A. Alternatively there was said to have been procedural unfairness in the failure to give the Claimant an opportunity to respond to the representations made by Mr. Kelly in his absence.

The test as to whether there was the appearance of bias is that laid down by Lord Hope in Porter v Magill [2001] UKHL 67, [2002] 2 AC 357 at 103 namely “whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”.

In considering the conclusions which a fair-minded and informed observer would reach account has to be taken of the nature of the exercise being undertaken and of the characteristics of the personnel involved. Similarly in determining what is required by procedural fairness in a particular case the Court has to take account of the nature of the exercise in question. In that regard Mr. Vaughan was right in his contention that considerable assistance was to be derived from the decision of the Court of Appeal inR v Avon County Council ex p Crabtree [1996] 1 FLR 502.

Crabtree concerned the deregistration of a foster carer under the provisions in force in 1991. The relevant decision was that of a panel which met on 14^th October 1992. It is to be noted that two members of that panel had also been members of a panel which had met on 9^th October 1992 and which had recommended deregistration. Three of the panel members were the subject of complaints by Mr. Crabtree. Moreover, two social worker members of the family placement team which had recommended Mr. Crabtree’s deregistration attended the meeting and took part in the deliberations of the panel. Those social workers made representations at a time when Mr. Crabtree, having made his submissions, had withdrawn from the meeting. The contentions in favour of judicial review were in part based on the facts that the panel members included persons against whom Mr. Crabtree had made complaint and on the receipt of representations from social workers after Mr. Crabtree had left the meeting.

The Court of Appeal upheld the decision of the panel and concluded that there had been no breach of the requirements of fairness or natural justice. Neill LJ (with whose judgment Millet J and Glidewell LJ agreed) explained that account had to be taken of the nature of the decision making body and of the nature of the task being undertaken. In that regard bodies making administrative decisions are not to be treated as if they were courts and as such subject to the procedural requirements imposed on courts. Thus, at 510 – 511, Neill LJ said:

“I agree with Thorpe J that at first sight the procedure which was adopted on 14 October 1992 appears to have been something less than fair. This first impression, however, does not take proper account of the nature of the decision-making body in question or of the nature of their task.

It is important to remember that the rules of fairness or natural justice cannot be regarded as being rigid. They must alter in accordance with the context. Authority for this proposition is to be found in the opinion of Lord Mustill in R v Secretary of State for the Home Department ex parte Doody; Same v Same ex parte Pierson; Same v Same ex parte Smart; Same v Same ex parte Pegg [1994] 1 AC 531, where at 560 he set out the principles to be applied in deciding what fairness required in a particular case:

'From [the authorities], I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.'

I have also found to be instructive in relation to the work of a local authority a passage in the judgment of Woolf J in R v Amber Valley District Council ex parte Jackson [1985] 1 WLR 298, 307H-308A where he said:

'The rules of fairness or natural justice cannot be regarded as being rigid. They must alter in accordance with the context. Thus in the case of highways the department can be both the promoting authority and the determining authority. When this happens, of course any reasonable man would regard the department as being predisposed towards the outcome of the inquiry. The department is under an obligation to be fair and carefully to consider the evidence given before the inquiry but the fact that it has a policy in the matter does not entitle a court to intervene.'

It follows therefore that in considering the fairness of a decision a court must look carefully at the administrative structure of the body that makes the decision and at the nature of the decision itself. Most decisions taken by administrative bodies have to be taken by those with knowledge of the facts. The members comprising such bodies may, because of previous knowledge or some policy which has been adopted, have a predisposition towards a certain result. This does not mean, however, that such a body cannot reach a fair decision. Furthermore, the courts must be careful not to treat the decision-making process of such bodies as though the bodies were judicial tribunals.”

Neill LJ also explained (at 512) that in the particular circumstances it was not unfair for the two members of the family placement team to attend and their presence during the deliberations was not held to have rendered the procedure unfair.

What is necessary for there to be fairness will differ in different circumstances. What is unfair in one situation may not be unfair in another apparently similar situation and vice versa. It follows that despite the strong similarities between the circumstances considered in Crabtree and those of the current case it remains necessary to consider the fairness of the dealings between the Claimant and the Defendant with reference to the particular facts of this case. However, that consideration must be undertaken in the light of the guidance given in Crabtreeand mindful of the outcome in that case.

It considering the nature of the decision taken by the Defendant and of the process which led to the recommendation of Panel B it is, in my judgment, highly relevant to note the purpose of the exercise being undertaken. The panel and the Defendant were considering whether the Claimant remained “suitable to be a foster parent” (Regulation 28 (4)(a)). The Claimant had real and substantial interests in remaining an approved foster carer and he had to be treated fairly by the Defendant and by the panel. However, his were not the only interests to be considered in this exercise. Mr. Vaughan was right to emphasise that the underlying purpose of the regime for the approval of foster carers and for the termination of such approval was the protection of those children who were to be in the care of foster carers. The fact that this was the purpose of the approval regime would not justify unfairness in the treatment of the Claimant. It was nonetheless an important aspect of the particular circumstances. It is relevant in considering the steps which fairness required in these circumstances and in determining what was required of the Defendant and of Panel B if they were to act fairly.

Regard is to be had to the structure of the Regulations and to the procedures laid down there. Compliance with the arrangements laid down in a statutory framework is an indication that there has been procedural fairness. However, it is an indication rather than a complete or immediate answer to the question of whether there has been fairness. Compliance with the letter of particular provisions will not avail a decision-making body if there has been unfairness. For the Claimant Miss. Mensah was right to point out that in Crabtree the Court of Appeal did not regard compliance with the relevant statutory framework as removing the need to consider questions of fairness. A statutory framework may need to be supplemented in order to achieve fairness (a point made by Miss. Mensah invoking the views expressed at 7-040 of De Smith’s Judicial Review 7^th Ed). In short the relevant framework is a factor, potentially a powerful factor, in determining what is required by fairness and in determining whether there is an appearance of bias in particular circumstances but it is not conclusive. Miss. Mensah was right to say in her Further Submission that “compliance with a statutory framework is not an automatic trump to a claim for apparent bias. It is no more than a factor [though I would say a significant and powerful factor] to be considered alongside all the circumstances of the case.”

The Claimant contends that fairness required that Panel B have an entirely different membership from Panel A. Miss. Mensah submitted that there was apparent bias because those members who had sat on Panel A could not be expected to approach the matter afresh when there had only been five months between the meetings and when the issues remained substantially the same. There was, the Claimant says, a real possibility of bias because those members would not be able to change their minds (or would have difficulty in doing so) and would not be able to assess the Claimant’s further submissions dispassionately.

Miss. Mensah also argued that this difficulty was compounded by the fact that there had been a division of opinion at Panel A. In my judgment the earlier division of opinion cannot advance matters. If fairness required a wholly different panel then this would have been required regardless of whether the earlier panel had been unanimous or not. The argument made by Miss. Mensah might have been stronger if the position were that the earlier panel had been narrowly divided and that the later panel was composed entirely or predominantly of those who had been on a particular side of that division. That is not the current case.

Did fairness require that Panel B have entirely different members from Panel A? Was the procedure unfair because some members of Panel B had also served on Panel A? I am satisfied that there was no unfairness in this regard. As the decision in Crabree makes clear a careful assessment has to be made of the nature of the decision and of the nature and rôle of the body making the decision. When this is done the Claimant’s argument falls down. It cannot be said that there was a real possibility of bias and that the review being undertaken by Panel B was flawed or was not a proper and fair review because of the overlapping membership. The following matters are of particular note in that regard:

In those circumstances a fair-minded and informed observer would not have concluded that there was a real possibility of bias or a real possibility that the review was not genuine. The exercise of reconsidering an earlier decision in the light of fresh submissions and of assessing whether those submissions justify altering the earlier decision is not particularly unusual nor is it conceptually difficult. It is an exercise of a kind undertaken in many circumstances and of a kind which the panel members could be expected to understand and to undertake properly and fairly regardless of whether they had been members of the earlier panel. The issue comes down to whether a fair-minded and informed observer would have considered that the panel members would have difficulty in assessing the further submissions objectively and in considering whether those submissions merited a change in the earlier recommendation. Would such an observer have considered that there was a real danger that those who had served on Panel A would not be able to assess those submissions properly and that they would be unable to change their minds if a change was warranted? Such an observer would not have considered that there was such a risk in this case where panel members appointed for their experience and independence were avowedly undertaking a review in circumstances where they had no personal interest in the matter in issue.

My conclusion as to the assessment which such an observer would have made is reinforced when the minutes of Panel B are considered. Those minutes demonstrate that the members of the panel understood that they were engaging in a review and that the question was whether the further submissions warranted a different recommendation from that made by Panel A. The minutes of Panel B contained a section headed “Case Discussion” which recorded the initial discussions in which the members of the panel engaged before they heard the oral submissions. In those discussions the panel members commented on the written material and set out the views they had formed in the light of that material. Such an exercise was, of course, wholly proper and is almost inevitable when any group of persons has to make a decision about matters where they have received written material and are then to hear oral submissions before coming to a final conclusion. That portion of the minutes had been redacted and the unredacted version was only supplied at the trial. When that portion of the minutes is read it shows the panel members expressly addressing the question of whether the new material meant that the earlier recommendation needed to be revised. Thus Mr. Yip, an independent member of the panel, expressed the view that there was nothing new in the Claimant’s written submissions which would cause him to come to a different conclusion from that which Panel A had reached. Carol Hall and Jan Stanton had both been members of Panel A. They are both recorded as having said that there was nothing new in the further submissions which would lead to a different recommendation from that of Panel A. The relevance of the comments is not that there was no change of mind but rather the approach being taken. It was apparent that the panel members, including those who had been members of Panel A, were considering the further material with a view to seeing whether a change of recommendation was appropriate.

I have explained above that regard is to be had to the Regulations in considering whether the procedure adopted was fair. Compliance with the Regulations is an indication of fairness but not conclusive of that question. Regulation 28 (7) and (10) provide for a foster carer who disagrees with a recommendation to supply written representations and for the relevant local authority then to “refer the case to the fostering panel for its consideration”. There is force in Mr. Vaughan’s submission that in the circumstances here the Defendant went further than was required under Regulation 28 and that this is a powerful indication that the approach adopted was fair. There would have been compliance with Regulation 28 if both the initial recommendation and any further consideration had been made by the same persons. The Regulation appears to envisage the entire fostering panel dealing with both the initial recommendation and with consideration of the written representations. If that had happened then all of those engaged in both exercises would have been the same. In the current case the majority of the members of Panel B had not been members of Panel A. Moreover, the Regulations do not contemplate further oral submissions being made to the fostering panel. They provide for written representations and envisage a paper exercise in which the fostering panel assess the further written representations. In that regard it is relevant to note that the alternative route of a review by an independent review panel (provided for in Regulations 28 (7) (b) (ii) and 29) also envisages a paper exercise. In the current case the Claimant was given the opportunity to make oral submissions to Panel B supplementing and supporting his written representations.

Mr. Vaughan argued that in any event the Claimant had waived any right to assert that there was bias by reason of the composition of Panel B. The contention was that the Claimant knew that some of those who were members of Panel B had also been members of Panel A. The Claimant made no protest about this but instead made submissions to that panel. Given the conclusion I have come to on the fairness of the composition of Panel B this issue does not arise. However, I can say very shortly that if there had been unfairness by reason of the overlap in membership between the two panels then the actions of the Claimant would not have amounted to a waiver of that unfairness. Mr. Vaughan accepted that there could only be waiver if there had been satisfaction of the requirements laid down by Lord Phillips CJ in Smith v Kvaerner Cementation Foundations Ltd [2006] EWCA Civ 242 [2007] 1 WLR 370 saying at [29] “the vital requirements are that the party waiving should be aware of the material facts, of the consequences open to him, and given a fair opportunity to reach a reasoned decision.” Here the Claimant would have known that there was some overlap in membership if only because the same person chaired both panels. However, in that regard I note that the passage Mr. Vaughan relied on from the minutes which said “in order to ensure transparency there are a number of members attending panel today who were not present at the meeting on 11/05/16” referred to comments made before the Claimant entered the meeting. Moreover, the point being made there appears to be not that there was an overlap in membership of the panels but that there were differences between the membership of the two panels. Even though he would have been aware of some overlap in membership there is no suggestion that the Claimant was alerted to the possibility of a challenge being made on that ground let alone that he was given any opportunity to consider whether to make a challenge or to proceed. In those circumstances it could not be said that there had been a waiver of any unfairness.

Permission was given on the footing that it was arguable that the Panel had taken account of irrelevant matters by reason of taking account of matters of fact which were inaccurate. It was by no means easy to establish which the inaccurate matters were said to be.

In Section 5 of the judicial review claim form the Claimant asserted:

“(iv)

The Panel was rather prejudiced. The Panel irrationally sought to legitimise and ratify the wishes of the Fostering Service to deregister me rather than to objectively consider the evidence presented before it (v) The minutes of the Panel’s meeting indicate that through its own error the Panel misled itself on several issues thereby leaving open good reasons to doubt the fairness of the decision reached and to challenge the decision of the Panel.”

At paragraph 20 of his Detailed Statement of Grounds for Judicial Review the Claimant set out four respects in which he said that the minutes of Panel B’s meeting showed “manifest errors invented to boost or justify the conclusions of the Panel.” At that stage the Claimant was alleging that there had been deliberate dishonesty in the compilation of the minutes. He said “The record of the Panel attributed to me what I did not say and statements that I could not have said”. The Claimant submitted a response to the Defendant’s defence and at paragraph 6 of the Claimant’s document there was a list of instances in respect of which the Claimant took issue with the minutes under the heading “Evidence of incidences of bias of the Panel”.

At the hearing before me the nature of the allegation had changed and it was being said that the minutes demonstrated irrationality on the part of the Panel by way of taking account of irrelevant matters or failing adequately to consider the evidence. Miss. Mensah contended in her skeleton that “the Minutes … when compared with the Claimant’s evidence [in fact his response to the Fostering Service’s report] and his letter dated 20^th September 2016 demonstrate a lack of any proper regard to the facts and evidence in dispute.” She asserted that statements had been attributed to the Claimant which were not supported by the evidence. Finally, it was contended that:

“Assumptions are made with no proper consideration of fact, findings, or evidence to support such matters. The [Fostering Service’s Report] contains many unsubstantiated and disputed allegations which the Panel knew that the Claimant had denied and yet no substantive or reasoned findings appear to have been made. Despite the clear dispute on the facts the Panel have simply adopted those allegations as if proven fact without more”.

In her skeleton argument Miss. Mensah asserted that these matters were indicative of “bias or assumed bias on the part of the Panel”. That argument was not open to the Claimant in the light of the grounds on which permission had been given. Sensibly at the hearing before me this line of attack was put on the footing of the Panel had taken account of inaccurate matters.

In her oral submissions Miss. Mensah said that I should have regard to the Defence put forward by the Defendant so as to ascertain the matters which the Defendant believed Panel B had taken into account and that I should then consider whether there were factual inaccuracies in those matters. I have concluded that would not be an appropriate approach. The “Detailed Grounds for Defending the Claim” is a lengthy document which unhelpfully recites large parts of the report which was put before the panels and says that this was relied upon by the panels. In effect the Claimant was inviting me to consider his factual disagreements with the reports. That would not have have assisted in determining whether Panel B took account of irrelevant matters or failed to take account of relevant ones.

A more appropriate approach was to consider the contention which Miss. Mensah formulated in her oral submissions. This was that the conclusions of Panel B as recorded in the minutes were confusing and not properly articulated. She invited me to conclude that this demonstrated that the panel had taken account of irrelevant matters or had based its decision on factually incorrect matters.

I have considered that argument together with the other criticisms which the Claimant makes of the minutes. I am satisfied that both the argument and the other criticisms are ill-founded and that the approach of Panel B was not flawed by irrationality in that regard.

I reach that conclusion having regard to the nature of the minutes. Although they appear to be relatively detailed the minutes are not and do not purport to be a transcript. The criticisms which the Claimant makes of the minutes and the instances which he says show errors of fact are references to those parts of the minutes which purport to record the oral submissions made to the panel by the Claimant and by Kate Lee and by Sue Bence; the questions put to them; and their responses to those questions. The fact that the Claimant’s recollection of what was said differs from the account recorded in the minutes does not indicate that Panel B was taking account of material which was factually inaccurate. There will inevitably be differences of recollection and impression as to oral exchanges and such differences do not indicate irrationality on the part of the panel. In considering this part of the Claimant’s case I have borne in mind the nature of the competing cases which he and the social workers put before the panel. There was a large measure of agreement as to the core history. The differences related in part to what was actually said on some occasions but very much more to the interpretation of what happened. The real question was whether the correct interpretation was (a) that the Claimant had failed to cooperate with the Fostering Service and had shown a failure or inability to understand the importance of such cooperation (the Fostering Service’s interpretation) or (b) that the Claimant had been striving to cooperate but was doing so in the aftermath of his wife’s death and in circumstances where the Fostering Service’s perception of his approach was flawed by suspicion and lack of understanding (the Claimant’s interpretation). The preference of Panel B for the former rather than the latter interpretation was not irrational.

There is one respect where it is possible to identify a matter which the panel did take into account and which the Claimant contends was irrelevant. This was the concerns which had been raised in the past. The Claimant contended that regard should not have been had to the past history. His position was that as the 2015 review had not resulted in the termination of his approval matters considered then and occurring before that review should not have been taken into account in the decision in 2016. There is no substance in this contention. The panels were considering whether the Claimant was suitable to remain as a foster carer. It cannot be said that the Claimant’s ability and willingness to cooperate fully and honestly with the Defendant’s Fostering Service was irrelevant to that assessment. Indeed, it was clearly relevant. In assessing that ability and willingness it was appropriate for the panels to take account of the past history. That past history was relevant in assessing whether the difficulties which had occurred in the period leading up to the Fostering Service’s report were a continuation of a settled pattern of behaviour or were out of character. If the former then they were likely to be indicative of unsuitability if the latter then they might not indicate this. In taking account of the history the panels were not having regard to an irrelevant matter but were considering a highly relevant one.

I turn to the contention that the minutes show that Panel B’s conclusions to have been confused and insufficiently articulated such as to indicate irrationality. I reject this contention. The minutes record the deliberations in short terms but do not indicate any confusion nor was there a demonstration of a lack of reasoning. The minutes record the “Case Discussion” in which the panel members engaged having read the paperwork but before having heard the written submissions. The discussion recorded was clearly careful and considered with points for and against the Claimant being made in that discussion. The minutes also record the “deliberation” which occurred after the Claimant and the social workers had withdrawn. The comment from Mr. Kelly which I have set out above was recorded and the minutes then say:

“Panel members agreed that [the Claimant’s] verbal contribution to Panel had not address the concerns identified by Panel on 11/05/16. Panel members continue to be concerned that [the Claimant] does not appear to recognise the emotional impact his decision making could have on Looked After Children or recognise the need for Social Services to take measures to ensure Looked After Children are kept safe from potential harm or additional distress. It was considered that [the Claimant] was defensive in his written and verbal submissions.”

The minutes went on to record the recommendation made by Panel B and the reasons for the recommendation which were the six reasons which had been given by Panel A together with two further reasons.

The reasoning of Panel B was far from confused or insufficiently articulated. There was, on the contrary, a careful consideration of the issues and a reasoned conclusion.

It follows that I reject each of the lines of argument by which the Claimant sought a finding that there was irrationality in Panel B’s approach or reasoning.

The involvement of Mr. Kelly in the deliberations of Panel B is the aspect of this matter which has caused me most pause for thought. There are two aspects of that involvement which must be considered. First, was there unfairness by reason of apparent bias arising from Mr. Kelly’s presence as adviser to the panel in the light of his position in the Fostering Service and his involvement in the dealings with the Claimant as set out in paragraph 20 above? Second, was there unfairness in that Mr. Kelly made comments to the panel in the absence of the Claimant? For the reasons set out below I have concluded that there was no unfairness in either respect.

Was there an appearance of bias in the involvement of Mr. Kelly as “Panel Adviser”? In answering that question particular regard has to be had to the nature of the exercise being undertaken and the nature of Panel B. This was an internal exercise in which a recommendation being made by the earlier panel was being reviewed in the light of further submissions. Even more significant is the nature of the membership of Panel B. Regulation 23 provided that the Defendant’s central list of panel members should include at least one social worker with at least three years’ post-qualification experience (23 (1)) and that the Defendant had to ensure that the panel members between them had the “experience and expertise necessary to effectively discharge the functions of the panel” (23 (7)). Panel B had seven members. Six of these were independent of the Defendant and three (including the one non-independent member) were social workers. There had been an independent panel adviser present at the meeting of Panel A but Miss. McCrossen had sent her apologies in respect of the meeting of Panel B. A fair-minded and informed observer would have taken the view that the panel members had sufficient independence and experience to be able to distinguish between advice and direction and to reject advice if it was appropriate to do so. In those circumstances the presence of an employee of the Defendant as adviser to the panel composed of such members did of itself not create an appearance of unfairness. Did it make a difference that the adviser was a member of the Fostering Service and was in fact Mr. Kelly with his particular knowledge of and involvement in this matter? I have concluded that it did not. This is again because of the fact that the panel was composed of seven persons chosen for their experience and expertise in these matters with six of those seven being independent of the Defendant.

Miss. Mensah relied on the decisions of the Court of Appeal in R (ex parte Kaur) v Institute of Legal Executives Appeal Tribunal [2011] EWCA Civ 1168 and of the Privy Council in Meerabux v Attorney General of Belize [2005] UKPC 12 [2005] 2 AC 513. Miss. Mensah referred to the distinction drawn in the latter case at [24] between a person who is simply a member of a particular organisation and one who is actively involved in the institution of proceedings. She said that Mr. Kelly was in the latter category and contended that these authorities supported her contention that the presence of Mr. Kelly gave rise to the appearance of bias. In my judgment the situations being considered in those cases were wholly different from the circumstances of the current case. In the ILEX case the apparent unfairness arose through the fact that the vice-president of ILEX was a member of the appeal tribunal which was hearing an appeal from the ILEX Disciplinary Tribunal. It was the vice-president’s membership of the appeal tribunal which gave rise to the appearance of bias. Similarly in the Meerabux case the Privy Council was addressing the involvement of the person who had presided over the relevant panel. Wholly different considerations apply when a person is a member of a panel from those which appertain when a person is merely an adviser to the panel. A panel member determines the matter in question whereas an adviser does not. Accordingly, neither the decision in the ILEX case nor the summary of the law in the Meerabux case provide any assistance here.

I have quoted in paragraph [21] above the comments which Mr. Kelly made at the start of Panel B’s deliberations and after the Claimant had withdrawn from the hearing. These comments initially caused me considerable concern as to the fairness of the proceedings before Panel B. Mr. Kelly is recorded as having “commented” and to have done so “in response to [the Claimant’s] contribution”. Moreover, the Claimant was unaware of the comment and had no opportunity to respond. Did the comment amount to Mr. Kelly making a submission to the panel? If it did should the Claimant have been informed of it and invited to respond to it?

I have concluded that the answer lies in taking proper account of the context. The first relevant element of the context is that the proceedings before Panel B were not court proceedings. They were a review by that panel of the recommendation of an earlier panel with a view to confirming or otherwise that recommendation. There had to be fairness in the dealings of the panel but the panel was not bound by procedural requirements of the kind which would govern a court.

Next account has again to be taken of the composition of the panel in terms of the independence, experience, and expertise of the members in the respects I have already identified.

An even more significant element of the context is the fact that the panel had already received submissions from the Claimant and from the social workers who had drawn up the Fostering Service report and that those submissions had addressed the very point which Mr. Kelly made. In those submissions; in the report; and in the written representations the Claimant and the social workers had made clear their competing stances as to the relevance of the past history. The social workers had referred to incidents pre-dating the 2015 review contending that they were relevant as demonstrating a consistent failure on the part of the Claimant. The Claimant had said that account should not be taken of the past history. The Claimant was aware of the argument being put forward by the social workers and had set out his submissions in response to that argument. Mr. Kelly’s comment was a repetition of the argument which had already been raised.

What did fairness require in that context? What should have been done once Mr. Kelly had made his comment? Should the Claimant have been called back before the panel; told what Mr. Kelly had said; and then given an opportunity to make any further submissions he wished to make? I have concluded that fairness did not require such steps to be taken. This is so notwithstanding the comment having been made in the absence of the Claimant and having been made by a person present as an adviser to the panel. It would have been a wholly artificial exercise to adopt such a procedure. The members of the panel were aware of the Claimant’s stance in respect of Mr. Kelly’s comment and were able to take account of that stance in weighing that comment. The position would have been very different if in the absence of the Claimant Mr. Kelly had made reference to some new factual matter upon which the Claimant had not commented and in respect of which the panel did not know the Claimant’s case. That was not the position here. Mr. Kelly was reiterating an argument of which the Claimant was aware and upon which the Claimant had made submissions.

In assessing whether Mr. Kelly’s comments and the absence of an opportunity for a response from the Claimant made the proceedings unfair I note that in Crabtree two social worker members of the family placement team had attended the panel meeting. Those social workers had taken part in the panel’s deliberations and had made representations in the absence of Mr. Crabtree. In that case Mr. Crabtree’s submissions at first instance and on appeal had included the assertion that the receipt of submissions from the social workers in his absence had rendered the proceedings unfair. This contention was rejected. I have already said that the conclusion which was reached in Crabtree does not automatically mean that the Claimant is to be regarded as having been treated fairly just because of the close factual similarities. However, the approach there does provide a powerful indication of the importance of context and of the need to understand that fairness can require different procedures in different contexts.

It is my assessment that, as in Crabtree, although there were matters which might at first sight appeared potentially “less than fair” to those brought up in the procedures of the courts there was no unfairness when proper account was taken of the context. It follows that neither the presence of Mr. Kelly as an adviser nor the receipt of his comments in the absence of the Claimant rendered the proceedings unfair.

The minutes of Panel A’s deliberations contained the following passage:

“It is important to note there is evidence that social workers outside the fostering service have expressed concerns regarding the children’s emotional well-being and one of the children in his care has expressed concern since Joy’s death that the placement was less than nurturing and he has made the decision to leave the placement.”

This passage was redacted in the copy of the minutes which was provided to the Court. Miss. Mensah contended that this showed Panel A taking account of information which had not been provided to the Claimant and upon which the Claimant had not been able to comment. Miss. Mensah contends that this was an unfairness in the operation of Panel A which should be regarded as having tainted those members of Panel B who had also served on Panel A and so as rendering the consideration of the matter by Panel B unfair.

It is not surprising that suspicion was generated by the redaction of this part of the Panel A minutes but I am satisfied that this suspicion is misplaced and that the passage does not indicate that Panel A took account of material which had not been disclosed to the Claimant. This passage is in fact a comment on material in the report of 18^th February 2016 and, accordingly, to material which the Claimant had seen and upon which the Claimant had been able to comment. That report records instances on 26^th February 2014, 20^th May 2014, and 26^th January 2015 when social workers who do not appear to have been part of the fostering team raised concerns with that team about the Claimant. The reference to concern being expressed by a child seems to be a reference to the telephone call recorded as having taken place on 26^th February 2014. The minutes of Panel A’s meeting record the approach that was taken. The redacted passage is recorded as having been part of the deliberations of the panel undertaken in the absence of the Claimant but also in the absence of the social workers who had recommended termination of his approval. As the passage is properly to be seen as a record of comments made in the deliberations about the material before the panel and as those comments can properly be interpreted as being references to the report which the Claimant had seen it is unnecessary and artificial to suggest that it indicates that there was further and different material considered by the panel and which had not been disclosed to the Claimant.

Accordingly, the decision of the Defendant implementing the recommendation of Panel B was the result of a fair and rational process and is not to be overturned. In those circumstances the claim is dismissed.