Family lawyer organisation, Resolution, has issued two joint notes to assist family lawyers in England and Wales ahead of the end of the Brexit transition/implementation period at 11 pm on 31 December...
(Court of Appeal, Maurice Kay, Lewison, Gloster LJJ, 24 July 2013)
The woman was a foster carer for her two nephews and niece, aged 16, 14 and 7, all of whom were damaged and difficult children. Both parents had learning difficulties: the mother had problems with drugs and alcohol and the father was schizophrenic. The children had been neglected in their care. Prior to the placement with the woman, they were placed in three different foster homes, all of which broke down due to the foster carers being unable to cope.
The local authority approached the woman to ask if she would consider caring for the children. She agreed but this involved giving up her job, moving to a larger house in a different area and becoming reliant on State benefits. Following their placement with her, the woman was found to provide an excellent standard of care and commitment to the children which would be impossible to replicate elsewhere. The children were now happy and settled.
In the Administrative court ( EWHC 480 (Admin),  2 FLR 199) the woman brought judicial review proceedings challenging the local authority policy to pay family foster carers at a lower rate than unrelated foster carers. The judge held that the policy was unlawful as a matter of domestic law and the local authority was given 3 months to make their policies compliant with the guidance and the statutory framework. The local authority appealed.
The appeal was dismissed. The statutory guidance had to be complied with unless there were exceptional circumstances to justify a departure. There was no doubt that the local authority had failed to comply with the guidance by treating the woman unfairly and failing to ensure that allowances paid to related foster carers were not less than those paid to unrelated carers. It was impossible to say that the judge reached the wrong conclusion in finding the local authority had failed to provide cogent reasons for a departure from the guidance.