Wednesday Law Report: Foster parents granted residence order

14 October 1998 Re R-J (minors) Court of Appeal (Lady Justice Butler-Sloss, Lord Justice Thorpe and Lord Justice Chadwick) 2 October 1998

AN APPLICATION by foster-parents for a residence order under section 8 of the Children Act 1989, where they would be precluded by the Children (Protection from Offenders) (Miscellaneous Amendments) Regulations 1997 from continuing to be foster-parents, was not an abuse of the process of the court.

The Court of Appeal allowed the appeal of a local authority against the refusal to grant residence orders to foster- parents in respect of three children in its care under an interim care order.

The children had been placed with the present foster-parents, and the local authority's plan, after the failure of efforts to rehabilitate the children with their mother, was for the children to remain with them permanently.

However, since the placement of the children, the Children (Protection from Offenders) (Miscellaneous Amendments) Regulations 1997 had come into effect, as a result of which a caution for an offence of assault occasioning actual bodily harm rendered a person unsuitable to act as a foster-parent. The foster-father had been cautioned for such an offence in 1993 and thus, after the next fostering panel review, the authority would be under a statutory obligation to remove the children from the foster-parents.

Brian Jubb (Solicitor to Lincs County Council) for the appellants; Alison Ball QC and Catherine Jenkins (McKinnells, Lincoln) for the mother.

Lady Justice Butler-Sloss said that the consequence of the judge's decision was that the children would have to leave their foster home immediately and be placed elsewhere. They had settled exceptionally well with their foster- parents, were devoted to them, and were strongly opposed to being moved from them.

The case for the local authority was based upon welfare principles and the adverse effect on the children of removing them from the foster-parents. It argued that the effect of a residence order was entirely different from a local authority placement with foster-parents, and that the judge had erred in failing to balance public policy against the welfare of the children. The 1997 Regulations could not fetter nor set aside the clear policy of the Children Act to place the welfare of children paramount.

Counsel for the mother submitted that it was contrary to the spirit of the Children Act to make a residence order when the criteria under section 31 of the Act were met and the local authority was seeking a supervision order to retain control over the children.

The applications before the court were not made by the local authority in the public law sector of the Children Act, but were private law applications for section 8 residence orders under Part II of the Act. If the foster-parents were granted residence orders, they would automatically acquire parental responsibility which they would share with the mother. The care orders would automatically be discharged.

On an application for section 8 order, the court's duty was to consider all the relevant factors and make a decision consistent with the child's best interests. The judge had held that to make a residence order was in effect to retain the exisiting situation: there would no material change in the position of the children, and it would be an abuse of the court's role to grant the applications.

He had fallen into error in coming to that conclusion. Although realistically the children would continue to be cared for on a day-to-day basis in the same way as before, their legal status would be entirely different if the orders were granted.

On the basis, therefore, that the applications were to be treated as genuine, the court had to weigh in the balance all the relevant considerations, treating welfare as paramount. To remove the children from the foster- parents appeared to be contrary to their long-term interests, and, since the case was exceptional, to grant the applications would not set a precedent.