In re R-J (Minors) (Fostering: Person Disqualified)

Fostering regulations governing local-authority placements do not determine the outcome of a genuine private-law application for a residence order. The court must consider the policy underlying the regulations, but the child’s welfare remains paramount under Children Act 1989, section 1.

In an exceptional case, a residence order may therefore be made in favour of a person who could not be approved as a local-authority foster parent, provided that the competing considerations are properly evaluated. Public policy will ordinarily prevail. An interim residence order should not be used merely as a temporary expedient where it would alter the status quo and confer parental responsibility. Wardship may instead preserve the children’s position pending the substantive care hearing.

Three children were subject to interim care orders and had been placed together with foster parents before amendments to the fostering regulations rendered the foster father unsuitable because of an earlier caution for assault occasioning actual bodily harm.

The local authority consented to the foster parents’ applications for residence orders under section 8 of the Children Act 1989, seeking to avoid the children’s immediate removal pending the substantive care proceedings. The President of the Family Division refused the applications, treating them as an attempt to circumvent the regulations. The central issues were whether the applications were an abuse of process, how public policy under the regulations should be balanced against welfare, and what interim order should preserve the children’s position.

1. Appeal allowed. The children were made wards of court, with interim care and control to the foster parents, pending the substantive care hearing.
2. Lady Justice Butler-Sloss, with whom Lord Justice Thorpe agreed, held that the applications were genuine private-law applications under section 8, not local-authority placements under the fostering regulations. A residence order would alter the children’s legal status by conferring parental responsibility on the foster parents and discharging the interim care orders under section 91(1). The President therefore erred in refusing to entertain the applications as an abuse of process.
3. In determining a section 8 application, the court must consider all relevant factors, treating welfare as paramount under section 1. The 1997 regulations embody an important child-protection policy, but they do not themselves govern private-law orders. In a clearly exceptional case, welfare may prevail over that policy after a proper balancing exercise. The judgment indicated that public policy would ordinarily prevail.
4. Lady Justice Butler-Sloss considered the evidence of serious emotional harm likely to result from immediate removal and concluded that the children should remain with the foster parents until the October hearing. She left the long-term arrangements to the High Court.
5. Lord Justice Chadwick agreed that the children’s welfare required them to remain with the foster parents, but considered interim residence orders inappropriate because they would alter the status quo and might prejudice the mother’s position. The proper course was wardship under the court’s inherent jurisdiction, supported by section 100(4), which preserved the position without pre-judging the care proceedings.
6. The court further observed that, if care orders were later made, regulation 4A would prevent the local authority placing the children with the foster parents, although a later order in continuing wardship might permit residence with them if the High Court found that to be in the children’s long-term interests.

• Court of Appeal: Allowed the local authority’s appeal from the refusal of residence orders by the President of the Family Division. The children were made wards of court and remained in the foster parents’ care pending the substantive hearing.
• High Court: The President refused residence orders, holding that they would circumvent the mandatory fostering regulations and constitute an abuse of the court’s role.