A High Court judge has ruled that local authorities have a legal duty – not merely a discretion – to immediately remove fostered children where there is an ‘immediate risk of significant harm’, rejecting an attempt by foster parents to use human rights law to block such decisions.
The ruling, delivered by Mr Justice McKendrick on 22 April 2026, came in a case involving foster parents known as Mr and Mrs F, who had cared for two children, X and Y, for over four years. The children had been subject to care orders granted to Nottinghamshire County Council since 2022 and called their foster parents ‘mummy’ and ‘daddy’.
In December 2025, allegations emerged that Mr F had historically sexually abused his biological adult son, Mr Z. The foster parents sought an injunction under the Human Rights Act 1998 to prevent the council from removing the children from their home.
The judge acknowledged that the children and foster parents had established Article 8 rights to family life. However, he emphasised that the children remained subject to care orders, meaning the council held parental responsibility and had a statutory duty under the Care Planning Placement and Case Review (England) Regulations 2010 to act where there is an ‘immediate risk of significant harm’.
Regulation 14(3) of the 2010 Regulations provides that where such a risk exists, ‘the responsible authority must terminate C’s placement’ – not ‘may’ terminate. The judge stressed that Parliament had identified the local authority, not the court, as the primary decision-maker in such urgent circumstances.
McKendrick J noted that while the court retains a supervisory jurisdiction, the proper legal route to challenge a council’s removal decision is typically judicial review, not a standalone injunction in the Family Court. He expressed concern about the ‘too easy availability’ of Human Rights Act injunctions in family proceedings, warning that such applications raise ‘complex constitutional issues’, including questions of public resources and the separation of powers.
The judge also observed that Mr and Mrs F were seeking a mandatory injunction – effectively requiring the council to continue funding the placement – but had offered no cross-undertaking in damages.
Ultimately, the council decided not to pursue findings of fact against the foster parents, and the children remained in their care. The safety plan was ended, and the case was transferred to the Family Court for a final hearing on special guardianship. The injunction application was dismissed as unnecessary.
McKendrick J concluded that while the case raised ‘difficult’ questions of risk assessment, the legal framework was clear: where a local authority properly determines that a child faces immediate risk of significant harm, it has a duty to act – and the courts should be slow to intervene on an interim basis.
Leave a Reply