Grandparents’ legal challenge over application to be kinship carers rejected

A judge in the Court of Session refused a petition for judicial review brought by “TM” and “PM”, who claimed that The Highland Council had acted in a manner which was “procedurally unfair” and reached a decision that was “unlawful”, and that the decision did not provide “adequate reasons”.

Lord Brailsford heard that the petitioners sought reduction of a decision by The Highland Council dated 1 December 2016 refusing their application to be kinship carers of their two grandchildren, PTM and E, who had been taken into local authority care and made the subject of compulsory supervision orders after their mother was sentenced to three years and four months’ imprisonment, having been convicted of assaulting PTM.

At a procedural hearing in June 2017 Lord Ericht reduced the respondents’ decision dated 1 December 2016 in respect of E, but in respect of the decision relating to PTM the matter proceeded to a substantive hearing later that month.

‘Ultra vires’

The petitioners’ first argument was that the decision had been reached in breach of the respondents’ own kinship care procedures.

Counsel for the petitioners, Julianna Cartwright, submitted that the Kinship Care Panel’s decision to decline to recommend the petitioners as kinship carers was made at a meeting on 21 April 2016, confirmed by the chair on 3 May 2016 and confirmed by the agency decision-maker on 5 May 2016, but the decision was not formally notified to the petitioners until 20 September 2016 – the date of the appeal hearing.

According to the Kinship Care Procedures and Guidelines they should have received intimation within ten working days of the decision being confirmed by the agency, and it was argued that this failure was “prejudicial to their interests” as they were denied to the opportunity to seek independent advice before making submissions at the appeal.

Following the appeal hearing on 20 September before the council’s then director of care and learning Bill Alexander, Mr Alexander wrote to the petitioners advising that he would not make a determination until a further assessment of their suitability with regard to providing care for E was undertaken, which was also said to be a departure from the written guidance procedures and therefore “ultra vires” their powers.

A further complaint was that the respondents had displayed “bias” in their handling of their application, as the terms of letter dated 10 August 2016 from a council employee to petitioners suggested that another assessment of them as kinship carers would reach the “same conclusion” as an earlier one in respect of PTM.

Respondents followed kinship procedures and guidance

However, counsel for the respondents, Lynda Brabender, submitted that the Kinship Care Panel’s decision had been intimated to the petitioners by letter dated 6 May 2016, the day after it had been confirmed, and that the petitioners made both written and oral submissions to the appeal hearing, with the chair of the appeal panel commenting that the petitioners had made a “strong presentation”.

The decision was intimated to the petitioners by letter dated 1 December 2016 and reasons for refusal were provided.

The respondents also insisted that “no bias” was displayed.

Refusing the petition, the judge observed that in order to succeed the petitioners had to establish both that the respondents departed from their own published guidelines and that such departure resulted in prejudice to them.

‘No merit’ in petitioners’ complaints

In a written opinion, Lord Brailsford said: “The complaint of the petitioners in the end of the day narrowed to one of procedural irregularity and, in addition, a complaint of bias by one member of the respondents’ staff…There is in my opinion no merit in so far as the first of those arguments is concerned.

“The development of this, that the petitioner did not know of the appeal until the date it occurred, is demonstrated to be incorrect on the known facts. In the Note of Argument counsel for the petitioners conceded that ‘formal’ intimation was made on the date of the hearing of the appeal.

“However the Minute of the Kinship Care Panel recording the decision complained of records that a copy thereof ‘would be sent’ to the petitioners. That this in fact happened is clear from the terms of a letter from the respondents to the petitioners dated 24 August 2016.”

Further, the argument that the chair of the appeal panel had not followed the proper procedure, by failing to make a determination in order to seek further advice from a social worker who was about to undertake an assessment of the petitioners in respect of the child E, before making a decision, was also dismissed.

Lord Brailford explained: “The reasons for deciding to delay making his decision in respect of the appeal against the Kinship Care Panel decision relative to PTM until after an assessment of the petitioners as potential kinship carers of E was available are explained in the affidavit of the chairperson.

“Having regard to the terms of the relevant guidance, I am of the view that this complaint has no merit. The procedure followed, whilst not expressly provided for in the guidance did not, in my view, derogate from the purpose of the published guidelines.

“Moreover, and importantly, in affording the petitioners the opportunity to avail themselves of a further assessment, it did not detract from, or remove, rights of the petitioners. On the contrary, it provided them more protection in that both further consideration and additional assessment was given to augment representations they made at the review hearing.”

In so far as the allegation of bias was concerned, the judge considered that when read as a whole the letter could not be said to have expressed any partiality or have been detrimental to the interests of the petitioners.