H, R (on the application of) v Kingston Upon Hull City Council

When an interim care order is in force, a local authority must consult meaningfully with parents, the children’s guardian and other family members closely involved in the children’s care before making a fundamental change to their living arrangements. Consultation requires an opportunity to contribute and challenge the proposal. It does not require concurrence, and the weight given to the responses remains for the local authority.

A contested fundamental change should ordinarily be returned to the family court for judicial input. In exceptional circumstances involving an urgent and objectively justifiable risk to child safety, the authority may act without prior consultation or express court approval, but it must record and justify that course. Judicial review remains available in rare, fact-specific cases where there is no other appropriate remedy.

The claimant, the mother of two children subject to interim care orders, challenged the local authority’s decision to remove them from their paternal grandparents and place them in foster care. The local authority decided on 31 January 2013 to remove the children, without consulting the parents, grandparents or guardian and without returning the matter to the family court. After a meeting on 1 February, at which the father allegedly threatened to kidnap the children, the authority implemented the removal urgently.

The care proceedings were continuing alongside the judicial review. The central issues were whether judicial review was available during extant care proceedings and the extent of the authority’s duty to consult while an interim care order was in force.

1. Outcome. The court granted declaratory relief. The decision of 31 January 2013 was unlawful. The emergency decision implemented on 1 February 2013 was lawful in the circumstances and was not quashed.
2. Judicial review. Judicial review may exceptionally challenge a local authority decision made while care proceedings and an interim care order remain in force. The family court is ordinarily the appropriate forum, but judicial review may be justified where the decision cannot effectively be reviewed there and no other adequate remedy exists.
3. Consultation. An interim care order is an interim protective order and does not extinguish parental responsibility or permit unilateral decision-making on fundamental matters. Before changing the children’s living arrangements, the local authority must ordinarily consult the parents, the guardian if appointed and available, and family members with a material interest, including current family carers. Consultation must be genuine. It is more than giving information but does not require agreement or give those consulted a veto.
4. Judicial input and urgency. Where a proposed change fundamentally alters the basis on which the interim care order was made and is contested, the matter should ordinarily be returned promptly to the family court. The authority may act without prior consultation or express approval only in exceptional circumstances, such as an urgent and objectively reasonable child-safety concern. The reasons must be carefully justified, proportionate and recorded.
5. Application. The first decision was made after an adverse viability assessment, without meaningful consultation, adequate records, consideration of alternatives or an application to the family court. It was therefore unlawful. The father’s alleged threat created an urgent situation on 1 February which the authority was entitled to treat as credible; its immediate protective action was consequently reasonable and lawful.