Mr and Mrs F v Nottinghamshire County Council & Ors

Where a foster placement is terminated urgently, Care Planning, Placement and Case Review (England) Regulations 2010, regulation 14(3) requires the responsible authority to act where there is an immediate risk of significant harm to the child or a need to protect others from serious injury. The decision is for the responsible authority, subject to the court’s supervisory jurisdiction. A care order does not confer an unrestricted power to remove a child where Article 8 rights are engaged. Challenges to termination decisions should ordinarily be framed with appropriate public law analysis, and judicial review may provide the more suitable route. The court must treat a mandatory interim injunction restraining a statutory duty with caution, having regard to safeguarding, proportionality, public resources and the constitutional allocation of decision-making responsibility.

The applicants were foster parents caring for two children subject to care orders. Following allegations that the foster father had historically sexually abused his adult stepson, Nottinghamshire County Council considered whether the children should be removed. The applicants sought injunctions under the Human Rights Act 1998 and the High Court’s inherent jurisdiction, together with child arrangements and special guardianship orders.

The children remained with the foster mother under a safety plan while further evidence was obtained. The court ultimately did not need to determine the injunction application because the parties agreed directions, the safety plan ended, and the local authority did not seek findings against the applicants. The judge nevertheless addressed, obiter, the statutory decision-maker and the appropriate legal test for urgent removal.

1. Outcome. The injunction application was dismissed. It was unnecessary to grant an injunction because the children remained with the foster parents, the safety plan ended, and the case proceeded towards a final hearing on the special guardianship assessment.
2. Urgent termination of foster placement. Regulation 14(3) of the Care Planning, Placement and Case Review (England) Regulations 2010 applies where there is an immediate risk of significant harm to the child or a need to protect others from serious injury. In those circumstances the responsible authority must terminate the placement. Termination necessarily involves removing the child and accommodating the child elsewhere.
3. Decision-maker. Parliament assigned the regulation 14(3) decision to the responsible authority. The authority is not required to apply to the court before terminating the placement, although its decision remains subject to the court’s supervisory jurisdiction and must comply with the law, including Article 8 of the ECHR.
4. Relevant authorities. The statutory test was distinct in source from the case-law tests concerning removal from parents or other carers, although there appeared to be little practical difference between them. A care order does not give a local authority a blanket right to remove a child where safety and welfare do not require immediate removal. Article 8 protections may arise from a longstanding relationship with a foster carer even where that carer lacks parental responsibility.
5. Procedural route and injunctions. A challenge to termination under regulation 14(3) may appropriately be brought by judicial review, given the statutory allocation of responsibility and the court’s supervisory role. An HRA or inherent-jurisdiction injunction must be supported by properly pleaded facts. A mandatory interim injunction restraining a public authority from performing a statutory duty requires careful consideration of safeguarding, public resources, constitutional principle and any appropriate cross-undertaking in damages.
6. These observations were expressly obiter because the agreed undertakings and safety plan removed the need to determine the substantive injunction application.