The High Court ruled that the Child and Family Agency (CFA) acted unlawfully by treating the availability of a fully staffed secure-care placement as a condition for applying to court for a Special Care Order.
In a judgment delivered on 20 June 2019, Ms Justice O’Regan said section 23F(8) of the Child Care Act 1991 required the CFA to apply to the High Court once it determined there was reasonable cause to believe a child required special care. Any delay, she said, had to relate to preparing and progressing the court application, rather than external factors such as placement availability or the child’s priority on a waiting list.
The applicant, anonymised as A.F., was 16 and had been in CFA care under an interim Care Order since December 2017. In December 2018, the CFA’s National Special Care Committee determined there was reasonable cause to believe he required special care. The Service Director initially declined to make the formal determination required under the Act because no secure-unit place was available. In earlier judicial review proceedings, the High Court found that refusal unlawful. The Service Director made the formal determination on 6 February 2019.
The CFA did not then apply for a Special Care Order. It told the applicant’s representatives it would not apply because there were no vacancies. The applicant sought a declaration that deferring an application until a place became available was unlawful. The CFA accepted that the statutory duty was mandatory, but argued that, because the law set no deadline, it had to apply only as soon as practicable.
The CFA also argued that the case had become moot after a committee decided on 5 March 2019 that the applicant no longer required special care. The court had already ruled that the issue was not moot: it could recur, and an incorrect interpretation could affect other cases. The judgment records that separate judicial review proceedings concerned the March decision, with only costs outstanding.
Justice O’Regan rejected the CFA’s interpretation. She said it could mean that no application was ever made, even where the statutory steps had been completed and a child continued to need special care. The court concluded that the CFA’s policy of waiting for a staffed placement and prioritisation was inconsistent with section 23F(8). It further found unlawful the failure to take any step toward an application for 19 days after the formal determination, where no process-related timeframe or explanation had been given.
The supplied judgment concludes with that finding. It does not set out a separate operative order beyond the court’s conclusion on unlawfulness.