G, R (on the application of) v Nottingham City Council

Under the Children Act 1989 leaving-care scheme, a local authority must appoint a personal adviser promptly, complete the required assessment within the statutory period, and prepare a sufficiently detailed pathway plan. Assessment and planning are separate exercises. A personal adviser should not prepare the assessment or pathway plan because that compromises the adviser’s representative role. In the context of a newborn child, knowledge of a proposed separation, failure to object, or passive acquiescence does not amount to parental consent. Removal without consent or lawful authority breaches domestic law and Article 8 family-life rights. A public body asked to remove a child must satisfy itself that the proposed action is lawful.

The claimant, G, challenged Nottingham City Council’s failure to prepare a lawful leaving-care assessment and pathway plan. She also challenged the separation of her newborn baby, K, from her at hospital. The NHS Trust involved in the separation was joined as an interested party.

The judgment followed an earlier decision of the High Court, R (G) v Nottingham City Council [2008] EWHC 152 (Admin). In related care proceedings, the Court of Appeal dismissed G’s appeal against an interim care order, varied other aspects of the order, and transferred the proceedings to the High Court: Re G [2008] EWCA Civ 86. The issues before Munby J included whether declarations should be made by consent, whether the pathway-plan duties had been breached, whether the separation was lawful, and whether a further assessment should be directed.

Munby J granted permission and allowed the judicial review claim. He emphasised that the court cannot grant declarations merely by consent. It must be satisfied, on the facts and in law, that each declaration ought properly to be made, applying Wallersteiner v Moir [1974] 1 WLR 991 at 1029.

1. Leaving-care duties. Once G became an eligible child, the duty to arrange a personal adviser arose immediately and required appointment as soon as reasonably practicable. The assessment had to be completed within three months, with the pathway plan prepared as soon as possible afterwards.
2. Assessment and pathway plan. Assessment and planning were distinct in substance as well as sequence. Assessment required analysis and evaluation of the nature, extent and severity of the child’s needs, not their mere identification. The pathway plan then had to state, with sufficient operational detail, how those assessed needs would be met, including what action was required, by whom and by when. The court applied the guidance in R (J) v Caerphilly County Borough Council [2005] EWHC 586 (Admin), [2005] 2 FLR 860.
3. Personal adviser. A personal adviser could not also prepare the assessment or pathway plan. That dual role created a conflict and compromised the adviser’s function as the child’s representative. The local authority therefore had to appoint G a different adviser and review its arrangements.
4. Separation of mother and child. Under section 20 of the Children Act 1989, absence of objection was not equivalent to actual consent. G’s knowledge of the birth plan and failure to resist removal shortly after birth did not establish consent. The separation therefore lacked lawful authority and consent, and breached Article 8. Re L, X County Council v C [2007] EWHC 1771 (Fam) was materially different because it involved an unusual case of settled consent to adoption.
5. NHS Trust and care proceedings. The Trust could not rely on a local authority’s bare assertion of authority. Munby J stated that it would have been a joint wrongdoer, although G pursued no relief against it and it was discharged with no order as to costs. In the care proceedings, the court approved a residential assessment of G and K under section 38(6) of the Children Act 1989.

The court declared that the local authority had breached its leaving-care duties and that the separation breached Article 8. The question of financial compensation was adjourned. The local authority was ordered to pay G’s costs.

The judgment itself records the following procedural history:

• High Court (Administrative Court) — An earlier judgment gave directions in the judicial review proceedings: R (G) v Nottingham City Council [2008] EWHC 152 (Admin).
• Court of Appeal — G obtained permission to appeal against the interim care order. Her appeal was dismissed, other aspects of the order were varied to facilitate an assessment under section 38(6) of the Children Act 1989, and the care proceedings were transferred to the High Court: Re G [2008] EWCA Civ 86.
• High Court (Administrative Court) — The present court granted permission, allowed the judicial review claim, made the agreed declarations, adjourned the compensation issue, and directed a residential assessment in the care proceedings.