Bewry, R (on the application of) v Norfolk County Council

Section 22(4) of the Children Act 1989 creates no automatic duty to consult every foster parent. A foster parent may nevertheless be a person whose wishes and feelings are relevant under section 22(4)(d), depending on the facts. The local authority must at least consider that question before deciding the matter. Relevant considerations include the duration and nature of the placement, the foster parent’s involvement, any direct interest, criticisms made of the foster parent, the potential relevance of his or her views, and willingness to communicate. Where consultation is reasonably practicable, the authority should give advance notice of the proposed decision and a meaningful opportunity to respond. Failure to do so is unlawful where no reasonable local authority could have proceeded in that way.

The claimant was an approved foster carer for two teenagers voluntarily accommodated by Norfolk County Council under section 20 of the Children Act 1989. During an agreed respite period, the council held a meeting to decide whether the children should return to him. The claimant was not told in advance of the meeting and was not invited to provide his wishes and feelings.

The judicial review concerned only whether the council had breached section 22(4), particularly section 22(4)(d), by failing to ascertain or attempt to ascertain the claimant’s views. The court did not review the merits of the placement decision or the claimant’s continuing suitability as a foster carer.

1. Claim allowed in part by declaration. The council acted unlawfully in failing to treat the claimant as a person whose wishes and feelings were relevant regarding the proposed decision whether the children should return to him.
2. There is no general common-law duty to consult foster parents whenever a child is to be removed. The issue is fact-sensitive, as explained in R v Hereford and Worcester County Council, ex parte D [1992] 1 FLR 448.
3. Section 22(4)(d) requires the authority to consider whether an otherwise qualifying person’s wishes and feelings are relevant to the matter to be decided. A foster parent actively involved in a child’s life may fall within that provision. The provision does not make consultation automatic in every case.
4. The relevant circumstances included the claimant’s recognised status and experience, the length of the placements, his direct financial interest, the criticisms being considered, the potential relevance of his views, and his alleged unwillingness to communicate. There was no exhaustive statutory checklist.
5. The council’s frustration with the claimant’s alleged non-engagement did not justify proceeding without notice. His likely wish to retain the children did not make it unnecessary to ascertain his views. It was reasonably practicable to notify him of the meeting, identify the issue, and invite representations.
6. The court applied the judicial-review threshold: intervention was justified because no reasonable local authority could have proceeded with the meeting without at least notifying the claimant and giving him an opportunity to comment. The court declined to decide whether section 22(4) was mandatory or directory, since no order setting aside the placement decision was sought. The discussion in Re P (Children Act 1989, sections 22 and 26; local authority compliance) [2000] 2 FLR 910 was therefore not determined.
7. The declaration did not affect the merits of the placement decision, the claimant’s foster-carer status, or the possibility of the children returning to him. There was no order as to costs. Permission to appeal was refused.