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(Queen's Bench Division, Administrative Court; Munby J; 5 March 2008)
The mother had been unlawfully separated from the baby shortly after birth. The mother was herself an eligible child in the process of challenging the pathway plan prepared for her by the local authority. The baby was restored to the mother, but later removed lawfully under an interim care order. The mother's judicial review proceedings were heard at the same time as an issue in the care proceedings. Agreement was reached between all parties as to the orders to be made, including two declarations that the local authority had acted unlawfully.
The court could never grant declarations by consent; when making a declaration the court had to be satisfied on the facts and as a matter of law that the declaration was one that ought properly to be made. A mother could not be said to have given her consent to the removal of her baby merely because, knowing of a local authority plan to remove the child, she did not object to it, and because, at the moment of separation, she did not resist. The statutory scheme laid down in Children Act 1989, ss 23A-23C and Sch 2, and in Children (Leaving Care) (England) Regulations 2001 SI 2001/2874, envisaged two quite separate stages, first, the assessment, culminating in the preparation of a written record and, secondly, the preparation of a pathway plan. The assessment of needs went beyond mere identification of needs, it involved analysis and evaluation of the nature, extent and severity of the child's needs, a process which had to go far enough to enable a pathway plan to be prepared, setting out, in sufficiently precise detail, the 'manner in which' those needs were to be met. There had been a serious failure by the authority to comply with its statutory duties: the entire process should have been embarked upon earlier; it did not appear that there had ever been a proper assessment; and not only had the pathway plan lacked specificity, the mother's personal adviser had been involved in its preparation, which was impermissible. The local authority had undertaken to conduct an urgent review of the arrangements for its personal advisers to ensure that they did not have a foot in both camps in this way in future.