About this case:

• Citation:
  [2023] NIKB 69
• Judgment:
  External link
• Court:
  NI High Court
• Judge:
  Judge Adrian Colton QC

The court found that she was appropriately involved and represented in the procedure, and that the question of whether a child is at risk is a matter for the statutory agency to decide, and not the parents.

Background

The applicant was a mother of two young children, “KJ” and “KR”. This application arose following a health and social care trust’s interventions concerning the applicant’s limited cognitive ability and her perceived lack of parenting skills. The trust sought an interim care order under Article 50 of the Children (Northern Ireland) Order 1995 and the placement of the children on the Child Protection Register (CPR).

In 2022 the trust sought a care plan of removal of the children from the applicant’s care. The applicant agreed to voluntary accommodation of both children. Neither child remained in, or was returned to, the applicant’s care.

In 2021, both children were registered under the category of confirmed neglect. Following a child protection case conference, the new category of potential emotional abuse was also added. The applicant appealed the CPR registration, but was refused twice.

The applicant’s challenge

The challenge related solely to the process that enables a child to be placed on a CPR at a case conference. Five key issues were raised:

1. the trust and the Department of Health appeared to differ as to whether voting occurred at case conferences;
2. the guidance issued by the Department was unclear;
3. the process was unfair in that a parent is not permitted to vote at a case conference, which was argued to be in breach of her Convention rights;
4. it was unfair that each professional who attended the case conference was permitted to vote — it was argued voting should be restricted to one vote per agency; and
5. the guidance was unclear about the role of the chairperson if there was no consensus at the meeting.

The Safeguarding Board for Northern Ireland Procedures Manual was central to the consideration of this application. It explains that a conference should be convened when it is clear that a decision has to be made on whether or not to place the child/young person’s name on the CPR.

The guidance states that all professionals in attendance must consider and analyse the information presented and contribute to decision making. Where there is a lack of consensus, a decision should be taken with the chair having the final adjudication.

The applicant submitted that, in effect, the parent/carer should be on an equal footing to those who represent the other agencies involved in the decision-making process.

There was also an issue raised that the applicant was not provided with the relevant report in time before the conference took place, as required under the guidance. This was a clear breach, which was aggravated by an alleged failure of the social worker to meet with the applicant prior to the meeting to go through the report.

The trust accepted this late report failure was “regrettable”. However, this aspect of the complaint was subsequently dealt with in the appeal process.

In this case, the trust submitted that there were serious issues regarding the utility and merit of the proceedings in light of what actually happened. What was being challenged was the unanimous decision of experts in the field.

Consideration

The primary complaint was that, at the 2021 meeting, the trust representatives and all other professionals who attended the conference “voted” for the registration of the children on the CPR. However, the applicant herself was not permitted to vote.

She argued that this was contrary to the purported aims of the procedure as set out in the guidance, as the role of the parent is regarded as crucial and it could not be fair that she was denied a vote when the professional persons present could vote.

Given the make-up of those who attended the conference, the process was also weighted in favour of the trust, which she argued was contrary to the intention of the guidance. Here, three attendees were trust employees, including the chair, all of whom voted.

She noted that guidance in Wales only permits one vote per agency. Overall, she argued there was inherent unfairness in how the process operated, such as to infringe her Article 6 and Article 8 ECHR rights.

The court accepted that the guidance goes to great lengths to ensure effective participation in the decision-making process by the parents. However, the judge found that the overall proceedings did allow for full participation by the applicant. Her views were clearly recorded and were known to the Board members. She was legally represented at the initial case conference and at the appeal.

The court found it “unfortunate” that the applicant became fixated on the question of “voting” at Safeguarding Board meetings. This was largely the fault of the Trust, who referred to participants “voting”.

In reality, the guidance does not provide or recommend a decision by way of a head count; the format is that of a conference in which a decision is agreed between the participating agents.

Here, the minutes demonstrated a full and detailed discussion between those present as to the best interests of KJ and KR. This was a unanimous decision based on a consensus, there was no voting procedure carried out.

Ultimately, the court considered that the policy was clearly a lawful one and Convention-compliant. The process and procedure adopted in this case, except the issue of the late report which was dealt with on appeal, was fair.

The judge did not consider that either Article 6 or Article 8 ECHR requires that a parent attending a Safeguarding Board should be given a vote. The law requires no such right. The question of whether a child is at risk is patently a matter for the statutory agency to decide and not the parents.

Conclusion

The court concluded that it was not appropriate to grant leave in this case, as it did not satisfy the threshold for leave, being an arguable case having a realistic prospect of success.