Law report: Offenders regulations were not unlawful

Regina v Secretary of State for Health, ex parte B and anor (Kent County Council intervening) Queen's Bench Division, Crown Office List (Mr Justice Scott Baker) 27 October 1998

THE SECRETARY of State for Health had not acted unlawfully in making the Children (Protection from Offenders) (Miscellaneous Amendments) Regulations 1997, by which a person convicted of or cautioned for specified offences, or a person in whose household such a person resided, was disqualified from acting as a foster-parent or from adopting a child.

The court dismissed the application for judicial review of the validity of the 1997 Regulations.

The applicants, aged six and seven, had lived with their paternal grandparents since care orders were made in September 1996. Their parents were unable to offer them satisfactory or appropriate care.

Care orders were felt to be necessary because they would give the local authority control of such matters as access arrangements. Because there were care orders the grandparents had to be approved as foster-parents.

The social services and the guardian ad litem fully supported the care orders as being in the applicants' best interests, although they were aware that the grandfather had been convicted in 1962 of unlawful sexual intercourse with a 15-year-old girl.

However, in October 1997 the Children (Protection from Offenders) (Miscellaneous Amendments) Regulations 1997 had come into force. Those regulations left local authorities and adoption agencies with no discretion to permit individuals to act as foster-parents if they had been convicted of or cautioned for certain specified offences, including the offence of which the grandfather had been convicted. The local authority could not, therefore, permit the applicants to remain with the grandparents under the aegis of care orders.

Richard Gordon QC (Harmon and Harmon, Canterbury) for the applicants; Nigel Pleming QC (Treasury Solicitor) for the Secretary of State; Dermot Main Thompson (Solicitor, Kent County Council) for the local authority.

Mr Justice Scott Baker said that counsel for the applicants had argued that the regulations were ultra vires, because the Secretary of State had no power to make rules that were capable of limiting or restricting the effectiveness of the principle that the welfare of the individual child, subject to any relevant decision making process, must be promoted and safeguarded, or that prevented the court, local authorities, or adoption agencies from exercising their functions under the Children Act 1989 and the Adoption Act 1976.

It was submitted for the applicants that the regulations did not permit any discretion to be exercised by local authorities in placing children with foster-parents when a relevant person had a conviction or caution for a specified offence.

On behalf of the Secretary of State it had been submitted that in so far as there was a general parliamentary purpose to be extracted from the primary legislation, namely the protection and welfare of children, it was plain that the regulations had been enacted with the sole intention of furthering that wider purpose.

There was no collision between the regulations and the wider purpose of the Children Act and the Adoption Act. The common thread which ran through the law relating to children was that those who were charged with making a decision about a child's future should treat that child's welfare as its paramount consideration.

However, decision makers could only operate within the confines of the relevant legislation. Because Parliament had detected that certain offenders presented a risk to children if they were foster- or adoptive parents, it was entitled to rule them out as a group from fostering or adopting children, and to so in the form of secondary legislation. The legislators were entitled to conclude as a matter of policy that the good of the many should prevail over the detriment to the few.