Mr and Mrs F v Nottinghamshire County Council & Ors

the allegations are of the utmost seriousness;

the allegations must be the subject of a robust, detailed and prompt investigation by NCC;

the Guardian’s welfare analysis on the emotional harm of immediate removal of the children is compelling;

the parties have complied with the safety plan to date;

the children remained with the foster mother since the allegations emerged over several weeks ago prior to an effective inter partes hearing;

the court must balance different risks and harm: the certain emotional harm that would be caused by removal to live with alternative foster carers, as against the risk of harm caused by sexual abuse. The harm caused by sexual abuse is at the highest end but the court is not in a position to assess the likelihood of that harm at this stage;

the evidence suggests the foster mother is a protective factor, NCC agreed with this proposition;

the foster father was willing to reside out of the family home and comply with the safety plan;

the court considers the risk assessment is difficult but the balance of harm dictates the status quo remains in place until fuller evidence in respect of the allegations is available.

should the evidence in respect of the allegations evolve before the next hearing, NCC must consider what action to take and consider it in the light of the court’s observations below.

Ways in which looked after children are to be accommodated and maintained

(1)This section applies where a local authority are looking after a child (“C”).

(2)The local authority must make arrangements for C to live with a person who falls within subsection (3) (but subject to subsection (4)).

(3)A person (“P”) falls within this subsection if—

(a)P is a parent of C;

(b)P is not a parent of C but has parental responsibility for C; or

(c)in a case where C is in the care of the local authority and there was [F2a child arrangements order] in force with respect to C immediately before the care order was made, P was a person [F3named in the child arrangements order as a person with whom C was to live].

(4)Subsection (2) does not require the local authority to make arrangements of the kind mentioned in that subsection if doing so—

(a)would not be consistent with C's welfare; or

(b)would not be reasonably practicable.

If the local authority are unable to make arrangements under subsection (2), they must place C in the placement which is, in their opinion, the most appropriate placement available.

(6)In subsection (5) “ placement ” means—

(a)placement with an individual who is a relative, friend or other person connected with C and who is also a local authority foster parent;

placement with a local authority foster parent who does not fall within paragraph (a);

(c)placement in a children's home in respect of which a person is registered under Part 2 of the Care Standards Act 2000 [or Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016]; or

(d)subject to section 22D, placement in accordance with other arrangements which comply with any regulations made for the purposes of this section.”

Termination of placement by the responsible authority

—(1) Subject to paragraphs (3) and (5), the responsible authority may only terminate C's placement following a review of C's case in accordance with Part 6.

Subject to paragraphs (3) and (4), before terminating C's placement, the responsible authority must—

(a)make other arrangements for C's accommodation, in accordance with section 22C,

(b)inform the IRO,

(c)so far as is reasonably practicable, give written notification of their intention to terminate the placement to—

(i)all the persons to whom notification of the placement was given under regulation 13,

(ii)the person with whom C is placed,

(iii)where C is placed in the area of another local authority, that authority.

Where there is an immediate risk of significant harm to C, or to protect others from serious injury, the responsible authority must terminate C's placement, and in those circumstances—

(a)paragraph (1) does not apply, and

(b)they must comply with paragraph (2)(a) and (b) as soon as reasonably practicable.

If it is not reasonably practicable to notify any person in accordance with paragraph (2)(c), then the responsible authority must give written notification to that person, within ten working days of the date on which the placement is terminated, of the fact that the placement has been terminated.

When short-term foster parents suddenly give notice of intention to adopt their foster child and thus wish to prevent the local authority's imminent removal of him from their home into the home of prospective adopters pursuant to a placement order, does a county court judge have jurisdiction to make an injunction against the local authority's removal of him and, if so, what considerations inform the exercise of such jurisdiction?

In the event, however, the matter is put beyond doubt by one of two sections of the Act of 2002 which in my view hold the key to the proper despatch of the substantive appeal. It is s.38 of the Act, to which the judge did not refer. It provides:

If …

the foster parents have given notice of intention to adopt,

They are –

If a placement order has been made in favour of a local authority, their power to remove a child from the home of foster parents is conferred not by s.20(8) of the Act of 1989 but by the conjunction of s.3(1) of that Act and of s.25(2) of the Act of 2002.

Thus s.38 of the Act of 2002 expressly caters for the present situation: notwithstanding the service by foster parents of a notice of intention to adopt, the local authority retain their power to remove the child from their home, whether to the home of other foster parents or, in the event of their also having authority to place him for adoption, to the home of prospective adopters.”

‘It is the submission of Mr MacDonald that the criteria which the judge should have applied to his clients’ application for an injunction are those set out in the decision of the House of Lords in American Cyanamid Co v EthiconLtd [1975] AC 396, [1975] 2 WLR 316; and that, had he done so, he would as he did, have made the injunction. In my view, however, the application, albeit able to be made to the county court as much as to the Administrative Court, represented a challenge of a public law character to the proposed exercise of Coventry’s powers and thus that its determination should allow for that important feature. Doubt as to the full application of the criteria in AmericanCyanamid to public law proceedings was swiftly raised by Lord Denning MR in Smith v Inner London Education Authority [1978] 1 All ER 411 at 418e. And in R v Ministry of Agriculture, Fisheries and Food ex parte Monsanto plc [1999] QB 1161, [1999] 2 WLR 599 the Divisional Court of the Queen’s Bench Division stated at 1172F and 608 respectively:

Perhaps the nature of public law proceedings is too varied to have permitted any authoritative reformulation of the principles applicable to them. At all events I consider that, in determining whether to make the injunction, the judge should have posed to himself, and have sought to answer, an initial question as follows:

If the judge’s answer to question (a) had been negative, he should have refused to grant the injunction. But if, and only if, his answer to the question had been affirmative, he should have proceeded to address further questions which, without even purporting to be prescriptive, I suggest might have run along the following lines:

‘…a foster parent, being a person, is someone who may, on the facts and in the circumstances of a particular case, fall within the para (d). In most cases, and certainly this case, the foster parent who has been, or is, currently actively involved in the life of a child is obviously somebody in relation to whom the local authority need at least to pause and consider whether he might be a person whose wishes and feelings the authority should consider to be relevant regarding the matter to be decided. That is not at all to say that in every, or any given, case the local authority should go on actually to consider that the foster parent’s wishes and feelings are relevant regarding the matter to be decided’.

I have quoted the case law above because the test for removal of a child from his/her home remains relatively static irrespective if the removal is from birth parents or others or before or after a care order has been made, whether the carers do or do not have parental responsibility, subject to their being a relationship which gives rise to Article 8 ECHR protections. A care order, as can be seen above, does not provide a local authority the blanket right to remove a child unless his/her safety and welfare requires that s/he be removed immediately.

Whilst I have set out this case in a little detail above, it is important to note that the test for the termination of a foster placement I am concerned with (and therefore the urgent removal of a child from foster carers) derives not from this case law but from Regulation 14 (3) of the 2010 Regulations, which, to repeat, states: “Where there is an immediate risk of significant harm to C, or to protect others from serious injury, the responsible authority must terminate C's placement.” There would appear to be little difference between this test and that as articulated in the case law which is a deep vein which runs through children public law. It is correct to interpret “terminate the placement” as meaning the same as “the removal of the child.” Termination of the placement requires the child to be accommodated elsewhere and therefore s/he must be removed. I am only concerned in this judgment with the termination of a foster placement. I note, however, the 2010 Regulations appear to cover other placements although, as I have noted above, do not include the category of children placed for adoption.

Parliament, through Regulation 14, has set out the separate non-urgent route for termination of a placement. Importantly Parliament has determined that the decision maker to apply the test is the “responsible authority.” Parliament has determined that should the responsible authority conclude the urgent test of immediate risk of serious harm, the responsible authority is not under a discretion to terminate the placement, but rather Parliament has mandated it must act under its statutory duty and do so. Of course, in doing so, the responsible authority must act in accordance with the law and must not violate any relevant Article 8 ECHR rights in doing so.

For my part, I do not read, Parliament to have stated that a responsible authority need apply to court to terminate a foster placement pursuant to Regulation 14 (3). Parliament has identified the test and the decision maker. Any such decision is of course subject to the supervisory jurisdiction of the courts.

That then leads to consideration of whether the appropriate route to injunct the exercise of the responsible authority’s duty to terminate the placement should be brought by way of an application for an injunction, pursuant to the HRA, or whether it should be brought by way of an application for judicial review, seeking an injunction as urgent interim relief. I have not heard full argument on this issue. It has not been necessary.

Plainly an application can be made for a free standing injunction without an underlying cause of action, see Wolverhampton City Council v London Gypsies and Travellers [2024] AC 983 at paragraph 43. In any event an application pursuant to the HRA can be made for an injunction and just satisfaction including damages. Both applications would however require a properly pleaded case setting out the facts to justify the relief sought.

Applications for injunctions pursuant to the High Court’s Inherent Jurisdiction in the context of controlling a local authority’s exercise of their section 33 CA89 powers should be reviewed in accordance with administrative law principles, see MacDonald J in Rs S [2025] EWHC 2780 (Fam). A case in which the court was concerned with the rationality of the local authority’s exercise of his statutory power pursuant to section 33 CA89 to consent to the vaccination of an infant. MacDonald J held at paragraphs 26 and 28:

The application for an injunction in this case is a complex one. The injunction sought by Mr and Mrs F is a mandatory injunction. It is an administrative law order, injuncting NCC to continue to fund the foster care placement (and presumably the contract for remuneration) with Mr and Mrs F. It gives rise to important questions of resources. It is right to note that cross undertakings in damages may be appropriate (none were offered in these proceedings). This is an important distinction to be made compared with other placements and particularly children placed at home such as in DE (although there may now be fewer care order placements at home for well-known reasons). Not every HRA injunction application to prevent removal has the same factual framework and this must be carefully assessed by the court.

The application also gives rise to complex safeguarding questions and requires NCC to safeguard a placement in respect of which it has already determined meets the test for the imminent removal of the children. The court is being asked at an interim hearing, on the basis of limited evidence, to injunct a public body from complying with a duty imposed on it by Parliament. I repeat what is sought is a mandatory interim injunction. There is a strong public interest in not restraining public bodies from exercising the powers granted to them by Parliament. It does not seem to me that either the evidence or the ‘pleadings’ in this case came close to addressing these important constitutional issues. The too easy availability of HRA injunctions in the Family Court may not assist the court to address these important issues in a comprehensive manner. I also add for the avoidance of doubt the case law is clear the HRA injunctions do not need to be brought pursuant to the High Court’s Inherent Jurisdiction but can be determined in the Family Court.

There is much to be said for a challenge to a local authority’s decision to terminate a foster placement, pursuant to Regulation 14 (3) of the 2010 Regulations, being dealt with by way of judicial review. CPR Part 54 sets out clear rules and Chapters 16 and 17 of the Administrative Court Guide set out a thorough guide to very prompt decision making. The requirement of a statement of facts and grounds and summary grounds of resistance properly articulate the respective cases for the parties. The requirement for permission weeds out unnecessary cases early on. The very significant importance of the requirement for pre-action protocol correspondence can often satisfactorily deal with the issues, pre-issue and without the need and expense of litigation. The threat of costs following the event, in most cases, focuses minds.

There are also sound constitutional reasons for proceeding by way of an application for judicial review. Against the facts which give rise to this matter, Parliament has identified the decision maker, and by inference, set out the proper constitutional roles for the authority as the decision maker and the courts - through the exercise of their supervisory jurisdiction. The rule of law requires respect for this division of responsibilities. It is as important in family law as in other areas.