Foster carer fails in legal challenge over deregistration following unfounded allegation against husband

The woman claimed that she had been “punished” when she had “done no wrong” and that she should have been allowed to continue to provide respite care for foster children, but a judge in the Court of Session ruled that the couple were registered as “joint carers” and that she had never before argued that her position should be considered separately from that of her husband.

Lord Clarke heard that the petitioner “CW” sought judicial review of certain decisions by the respondents Highland Council.

The court was told that from at least 2007 onwards the petitioner and her husband were actively engaged in caring for foster children after they made a joint application to the respondents in May 2003 to become respite foster carers.

However, in June 2012 a child with learning difficulties who was in the couple’s care made a serious allegation of sexual contact against the pursuer’s husband.

Following a police investigation no further action was taken and no report was submitted to the procurator fiscal or the Crown Office, but the council’s own investigations found that the child was a “credible witness who gave a clear consistent and reliable account of events” and recommended that the names of the petitioner and her husband should be removed from the list of approved carers.

The petitioner’s appeals to the Fostering Panel and Appeals Panel, at which she was represented by her solicitor, upheld the previous decisions, prompting the petition for judicial review.

The petition proceeded from the “undisputed fact” that there was never any complaint against the petitioner herself, at any time, about her behaviour as a foster carer.

Standing that fact, the decision of the respondents to “punish”, as her counsel put it, the “innocent” petitioner was “unreasonable” and they should have dealt with matters by varying the registration of the petitioner and her husband.

In failing to do so, it was argued that the effect of their action against the petitioner was to the “fundamental principle” that powers like those being exercised by the respondents “could not be used to impose a sanction on someone who has done no wrong”.

The relevant regulations throughout referred to “carer” in the singular and it was submitted that the respondents had wrongly applied the regulations by treating the positions of the petitioner and her husband together, when they should have considered the petitioner’s petition separately and looked into the possibility of the petitioner carrying on as a foster carer on her own.

But counsel for the respondents pointed out that the local authority had given “anxious consideration” to the fact that there was no allegation involving the petitioner herself.

The petitioner and her husband, before the respondents, were seeking to have a continuation of their joint role as foster carers and it was never suggested by the petitioner, nor the solicitor acting on her behalf, that she wished to continue as a foster carer on her own.

In a written opinion, Lord Clarke said: “In the first place the fact of the matter was that the petitioner was registered as a joint carer along with her husband. It was that registration which had to be considered by the respondents in the light of the allegation. The petitioner did not, until very recently, seek to have matters addressed any differently and did not invite the respondents themselves to do so.

“No point is taken now about the procedure adopted by the respondents being unfair or contrary to natural justice. The petitioner was represented, at all material times, by a solicitor acting on her behalf. At no time did he make the argument that her position should be considered separately and distinct from that of her husband.”

Employing the language of the court in the 1996 case of Tayside Regional Council v Secretary of State for Scotland, he added that “it is one thing to criticise the respondents for not taking into account a point which was taken before them. It is quite another to criticise them for not taking account of a point which was not raised with them at all”.

The judge said similar considerations applied to the argument that the relevant regulations conferred a power on the respondents to vary a registration and that their failure to address this possibility in some way impugned their decisions.

Lord Clarke continued: “The stark fact is that they were not invited to do so on behalf of the petitioner at any point in the hearings before the respondents in any of the submissions made to them. The fact that such a discretionary power, along with other powers, exists in the regulations does not mean that the non-exercise of such a power, by the decision‑maker, renders the decision invalid, particularly where the affected party, or his representative, did not invite the decision maker to exercise the power in question.”

Furthermore, he concluded that counsel for the petitioner was wrong in arguing that the respondents were, in effect, “punishing” her in respect of an allegation with which she was not involved.

The judge explained: “The respondents are charged with the administration of the sensitive area of certifying persons as suitable to carry out the activities of foster carers. Their over-arching and primary duty, in that context, is to provide that the safety and welfare of the children in question are protected and promoted.

“I am satisfied that in this case the respondents, throughout, had in mind that over‑arching consideration in reaching the decision which they did reach, which they clearly, and understandably, considered to be of an anxious nature.”