High Court considers application by foster parents for injunction pursuant to Human Rights Act to prevent council from removing children from their care

Mr Justice McKendrick observed: “The court is being asked at an interim hearing, on the basis of limited evidence, to injunct a public body from complying with a duty imposed on it by Parliament. I repeat what is sought is a mandatory interim injunction. […] It does not seem to me that either the evidence or the 'pleadings' in this case came close to addressing these important constitutional issues.”

At the conclusion of the judgment, McKendrick J noted that following “detailed consideration” of the evidence, the council determined not to seek findings of fact against the foster carers. The children thereby remained in their care and it was not necessary to grant an injunction.

The case concerned an application by foster carers, Mr and Mrs F, seeking to restrain a county council from removing two children, X and Y, from their care.

The children had been placed with the foster carers for over four years, since October 2021.

In December 2025, reports were made to social workers employed by a neighbouring council that the foster mother's birth son (Mr Z) had been historically sexually abused by Mr F.

The police and social workers sought to speak with Mr Z but he did not cooperate.

McKendrick J said: “When the matter came before me [in] January 2026, the careful directions made a little earlier by HH Rogers for evidence to be filed by a neighbouring local authority, had not been complied with and a Guardian and not yet been appointed. I therefore adjourned the matter.... on the basis the parties complied with the safety plan in place.

“The safety plan prevents Mr F living at the family home and provides he may only have contact with the Children when supervised by the foster mother or two of their adult children (one of whom is a regulated professional). The plan provided for only a limited number of hours of contact each day.”

At the later hearing in January 2026, the foster parents asked McKendrick J to grant the injunction.

This was opposed by the local authority who sought for the application to be dismissed and for the children's immediate removal from the foster parents' home.

The Guardian supported the children remaining in the home subject to the safety plan but sought more hours of supervised contact each day, noting the children showed evidence of emotional distress. The birth parents supported the children remaining with the foster parents.

On balance, McKendrick J concluded the immediate removal of the children was not required due to evidence that Mr and Mrs F were adhering to the safety plan.

He adjourned the application for the injunction to a further hearing.

Considering the application for an injunction, McKendrick J said: “The application for an injunction in this case is a complex one. The injunction sought by Mr and Mrs F is a mandatory injunction. It is an administrative law order, injunctingn [the county council] to continue to fund the foster care placement (and presumably the contract for remuneration) with Mr and Mrs F. It gives rise to important questions of resources. It is right to note that cross undertakings in damages may be appropriate (none were offered in these proceedings).

“This is an important distinction to be made compared with other placements and particularly children placed at home such as in DE (although there may now be fewer care order placements at home for well-known reasons). Not every HRA injunction application to prevent removal has the same factual framework and this must be carefully assessed by the court.”

He continued: “The application also gives rise to complex safeguarding questions and requires [the county council] to safeguard a placement in respect of which it has already determined meets the test for the imminent removal of the children. The court is being asked at an interim hearing, on the basis of limited evidence, to injunct a public body from complying with a duty imposed on it by Parliament. I repeat what is sought is a mandatory interim injunction. There is a strong public interest in not restraining public bodies from exercising the powers granted to them by Parliament. It does not seem to me that either the evidence or the 'pleadings' in this case came close to addressing these important constitutional issues. The too easy availability of HRA injunctions in the Family Court may not assist the court to address these important issues in a comprehensive manner. I also add for the avoidance of doubt the case law is clear the HRA injunctions do not need to be brought pursuant to the High Court's Inherent Jurisdiction but can be determined in the Family Court.”

McKendrick J went on to observe there is “much to be said” for a challenge to a local authority's decision to terminate a foster placement being dealt with by way of judicial review.

He said: “Civil Procedure Rules (CPR) Part 54 sets out clear rules and Chapters 16 and 17 of the Administrative Court Guide set out a thorough guide to very prompt decision making. The requirement of a statement of facts and grounds and summary grounds of resistance properly articulate the respective cases for the parties. The requirement for permission weeds out unnecessary cases early on. The very significant importance of the requirement for pre-action protocol correspondence can often satisfactorily deal with the issues, pre-issue and without the need and expense of litigation. The threat of costs following the event, in most cases, focuses minds.

“There are also sound constitutional reasons for proceeding by way of an application for judicial review. Against the facts which give rise to this matter, Parliament has identified the decision maker, and by inference, set out the proper constitutional roles for the authority as the decision maker and the courts - through the exercise of their supervisory jurisdiction. The rule of law requires respect for this division of responsibilities. It is as important in family law as in other areas.”

Concluding the case, Mr Justice McKendrick said: “Following detailed consideration of the evidenc e[the county council] determined not to seek findings of fact against Mr and Mrs F. The Children remained in the care of Mr and Mrs F and the safety plan came to an end.

“Mr Cleary [for the local authority] filed a most helpful position statement setting out [the county council]'s case and reasoning. Prior to the hearing [in] April 2026 the parties agreed further directions for the case to a final hearing to consider the special guardianship assessment. The matter was re-allocated to Circuit Judge level and proceeds in the Family Court...., the application made pursuant to the High Court's inherent jurisdiction being dismissed. It was not necessary to grant an injunction.”

Lottie Winson