Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 56

 

P1051/15

OPINION OF LORD CLARKE

In the petition

C W (AP)

Petitioner;

for

Judicial Review of the decisions by the Highland Council

 

Petitioner:  McShane;  Beveridge & Kellas for Anderson Shaw and Gilbert

Respondents:  MacGregor;  Ledingham Chalmers LLP

20 April 2016

[1]        The petitioner seeks judicial review of certain decisions of the respondents.  She and her husband made a joint application to the respondents on 9 May 2003 to become respite Foster Carers (7/10 of process).  Their application was accepted by the respondents on 19 December 2003 (7/11/1 of process).  A contract, between the petitioner and her husband, on the one hand, and the respondents, on the other hand, in that respect was entered into, with effect from 13 September 2004 (7/12 of process).

[2]        In her petition the petitioner avers that, from 2007, she employed her husband to assist her (statement 5).  However that may be, he was registered with the respondents’ jointly with the petitioner as a foster carer from 2004 and from at least 2007 onwards was with the petitioner actively engaged in the care of respite care for foster children.

[3]        On or about 15 June 2012 a serious allegation about the conduct of the petitioner’s husband was made by a child who had been in the care of the petitioner and her husband.  The allegation was one of sexual contact being made by the husband with the child who suffered from learning difficulties.  The petitioner operated a child caring business from 2002.  On receipt of the complaint, just referred to, the manager of the respondents’ Children Disability Team telephoned the petitioner and intimated that the allegation had been made.  The allegation resulted in a joint police and social work investigation into the allegation being commenced.  The respondents informed the Care Commission of the circumstances.  A hold was put on any further placements of children being made by the respondents with the petitioner and her husband.  The petitioner avers that the Care Commission requested her to suspend the operation of her child caring business with which request she complied.

[4]        In about March 2013 the police investigation into the allegation was completed.  No further action was taken by the police.  No report was submitted to the procurator fiscal or the Crown Office by the police.  The police informed the respondents that no proceedings were being taken because of an absence of corroboration of the child’s allegation.  It was recorded in the child’s history that she was capable of mixing fantasy with fact.  No allegation has ever been made against the petitioner of any misconduct.  The respondents’ own investigations into the matter proceeded.  These were conducted by Detective Sergeant Angela Mayley, Northern Constabulary and Anne Kyle, Disability Social Worker.  Those carrying out the respondents’ investigation reported that the child was regarded by them as a credible witness who gave a clear consistent and reliable account of events.  Those investigating matters, on behalf of the respondents, were aware of the outcome of the police investigations.  A review carried out on behalf of the respondents recommended to them that the names of the petitioner and her husband should be removed from the list of approved carers.

[5]        The petitioner instructed a solicitor, Mr Ewan MacDonald, to act on her behalf in relation to this matter.  A hearing was fixed for the respondents’ Fostering Panel for 29 May 2014 to discuss the recommendation of the Foster Carer Review.  The petitioner, her solicitor and her husband attended that hearing.  A minute of the meeting in question is 6/3 of process.  The petitioner’s solicitor Mr MacDonald made a number of representations and submissions to the panel.  At the end of the meeting the panel supported the recommendation to deregister the petitioner and her husband as respite carers on what was known as the Positive Partner Scheme.  Their reasons for doing so was stated to be based on the fact that the investigating officers had taken the view that the witness was credible and gave consistent and clear statements about the incident alleged.

[6]        The petitioner appealed the Fostering Panel’s said decision to the respondents’ Care and Learning Services Appeals Panel.  A hearing of the appeal was held on 18 February 2015.  It was attended by the petitioner, her solicitor Mr MacDonald, and her husband.  A copy of the minutes of the hearing is 6/4 of process.  The Appeals Panel upheld the decision of the Fostering Panel.  That decision was intimated to the petitioner’s solicitor by letter dated 10 March 2015, 6/2 of process.

[7]        In her petition the petitioner seeks various declarators and reduction of the respondents’ decisions.  She also originally sought damages in the sum of £100,000.  In support of seeking the orders of declarator and reduction the petitioner, in her petition, set out cases based on breach of natural justice, on the part of the respondents, and a case based on alleged contraventions of article 6 of ECHR.  In respect of her claim for damages the petitioner made substantial averments regarding financial loss and injury to her health resulting from the respondents’ decision to deregister her as a foster carer.  At the commencement of the hearing before me, however, counsel for the petitioner advised me that the petitioner was no longer seeking to advance any case based on a breach of natural justice.  Nor did she seek to advance a case based on the alleged contraventions of article 6.  Moreover counsel for the petitioner accepted that any claim for damages, as framed, was not suitable for disposal within the petition proceedings and, if it were to be pursued, this would require to be done by the bringing of a separate action for damages.

[8]        The submissions made on behalf of the petitioner ultimately rested, as I understood them, on an argument that was not foreshadowed in the petition itself.  While counsel for the respondents brought the absence of any relevant pleadings to support the line which was being advanced, to my attention, he was prepared to answer it.  I was, therefore, able to allow counsel for the petitioner to make the argument.  It proceeded from the undisputed fact that there was never any complaint against the petitioner herself, at any time, about her behaviour as a foster carer.  The relevant reviews, carried out on behalf of the respondents under the scheme in respect of which the petitioner was acting as a carer, expressed satisfaction with her performance in that regard which extended to the caring for many children.  Standing that fact, the decision of the respondents to “punish”, as her counsel put it, the petitioner who was innocent with regard to the matter concerned was unreasonable.  They should have dealt with matters by varying the registration of the petitioner and her husband.  What counsel appeared to be arguing for was an acceptance that there should be deregistration of the husband, but that the registration of the petitioner should be left standing.

[9]        The argument made on behalf of the petitioner was made under reference to the provisions of the Looked After Children (Scotland) Regulations 2009 SSI 210 and, in particular, regulations 25 and 26.  Reliance was also placed on the decision in the case of Wheeler v Leicester City Council [1985] AC 1054 and Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345.  The respondents had erred, it was submitted, in treating the position of the petitioner and her husband together.  While it may have been open for the respondents to deregister the husband, having done that, the respondents should have proceeded to consider the petitioner’s petition separately.  In failing to do so, the effect of their action against the petitioner was to breach what was described by counsel for the petitioner as the fundamental principle that powers like those being exercised by the respondents could not be “used to impose a sanction on someone who has done no wrong”.  This was a proposition which, it was submitted, emerged from the decision of the House of Lords in Wheeler.  There was no suggestion that the allegation by the child was in any way directed against the petitioner.  Nor was there any other allegation or complaint against the petitioner in her role as a foster carer.  The scheme of the regulations throughout referred to “carer” in the singular.  The respondents had wrongly applied the regulations by treating the positions of the petitioner and her husband together.  The respondents should have looked into the possibility of the petitioner, on her own, carrying on as a foster carer.

[10]      It is appropriate, at this point, to set out the relevant provisions of 2009 Regulations, regulation 21 is in the following terms:

“21.—(1) A local authority may make a decision to approve a person as a suitable carer for a child who is looked after by that authority in terms of section 17(6) of the 1995 Act which carer shall be known as a ‘foster carer’.

 

(2) A decision to approve a person as a foster carer must be made in accordance with regulation 22.”

 

The regulation 22 then provides:

“22.—(1) Where a local authority are considering whether to approve a person as a foster carer they must refer the case to a fostering panel.

 

(2) The local authority must so far as reasonably practicable provide the fostering panel with–

 

(a) the information in Schedule 3; and

 

(b) such other information or observations as they consider appropriate.

 

(3) Where a local authority receive a recommendation from the fostering panel under regulation 20(2) they must make a decision on whether the prospective foster carer is suitable to be a foster carer within 14 days from the date the recommendation was made.

 

(4) Where the local authority makes a decision that a person is suitable to be a foster carer they must be satisfied that–

 

(a) the prospective foster carer has been interviewed by or on behalf of the authority;

 

(b) the authority has taken into account the recommendations made by the fostering panel; and

 

(c) the prospective foster carer is a suitable person with whom to place a child or children.

 

(5) A decision that a person is suitable to be a foster carer shall specify whether the approval is in respect of–

 

(a) a particular child or children;

 

(b) any child;

 

(c) certain categories of child;

 

(d) the number of children each foster carer may have in their care at any one time.

 

(6) Where the local authority makes a decision that is contrary to the recommendation of the fostering panel the authority must record in writing the reasons for that decision.

 

(7) The local authority must notify in writing the prospective foster carer of the decision made under paragraph (3) within 7 days of making that decision.”

 

The provisions of regulation 25 as follows:

“25.—(1) Where a local authority have made a decision to approve a foster carer that authority must, by complying with the requirements in paragraph (2), carry out a review of the foster carer’s approval–

 

(a) within 12 months of the day the decision to approve the foster carer was made under regulation 22(3), 23 or 26(8);

 

(b) thereafter subsequent reviews within 3 years of the previous review; and

 

(c) whenever paragraph (8) applies.

 

(2) The requirements are–

 

(a) to refer the case to the fostering panel for a recommendation on whether the foster carer continues to be a suitable person with whom to place a child or children;

 

(b) to consider–

 

(i) whether the foster carer continues to be a suitable person with whom to place a child or children;

 

(ii) the development of the foster carer during the appropriate period; and

 

(c) to consult and take into account the views of–

 

(i) the child, taking account of their age and maturity;

 

(ii) the foster carer;

 

(iii) any local authority which placed a child with the foster carer within the appropriate period or at any time where that placement has not been terminated.

 

(3) On the review of the approval of the foster carer the local authority may–

 

(a) vary the terms of the approval;

 

(b) terminate the approval; or

 

(c) confirm the decision to approve a person as a foster carer.

 

(4) Where a foster carer notifies the local authority that they no longer wish to act as a foster carer or the local authority are otherwise satisfied that this is the case the authority must terminate the approval.

 

(5) Following a review the local authority must–

 

(a) record in writing a report of the review which must include–

 

(i) information obtained in respect of the review;

 

(ii) details of the proceedings at any meeting arranged by the authority at which the approval of the foster carer is reviewed;

 

(iii) details of any decisions or arrangements made in the course of or as a result of the review; and

 

(b) give notice of the decision made under paragraph (3) to–

 

(i) the foster carer;

 

(ii) any other local authority which have approved the foster carer.

 

(6) Where a local authority have approved a foster carer under regulation 23 they must, on receiving any notice under paragraph (5)(b)–

 

(a) vary or terminate their approval in accordance with any revision or determination made under paragraph (3) or 26(8); and

 

(b) give notice to the foster carer of any variation or termination of approval made under sub-paragraph (a).

 

(7) In paragraph (2) ‘appropriate period’ means the period ending 12 months from the day the decision to approve the foster carer was made under regulation 22(3), 23 or 26(8).

 

(8) This paragraph applies where the local authority consider that a review of the foster carer’s approval is necessary or appropriate to safeguard the welfare of any child who has been placed with that carer.”

 

In the present case, the procedure which was triggered under this regulation arose by virtue of an application of regulation 25(8).

            Regulation 26(1) then provides:

 

“26.—(1) Where a local authority approve a person as a foster carer under regulation 22(3), that person may request a review of the terms of the approval.

 

(2) Where a local authority make a decision–

 

(a) not to approve a person as a foster carer under regulation 22(3);

 

(b) to vary the terms of a foster carer’s approval under regulation 25(3)(a); or

 

(c) to terminate a foster carer’s approval,

 

that person may request a review of the decision.

 

(3) A request for a review under paragraph (1) or (2) must be made before the end of the period of 28 days beginning with the day on which notice of the decision was made under regulation 22(7) or 25(5).

 

(4) Where the local authority receive a request for a review under paragraph (1) or (2) they must refer the case to a fostering panel for a recommendation.

 

(5) A referral under paragraph (4) must be made to a differently constituted fostering panel.

 

(6) Where a referral is made under paragraph (4) the local authority must provide the fostering panel with–

 

(a) a copy of the decision and reasons made under regulation 22(3) or 25(3);

 

(b) the information provided to the fostering panel under regulation 22;

 

(c) any further representations received by the local authority from the foster carer or the prospective foster carer; and

 

(d) any other relevant information.

 

(7) The fostering panel shall consider the case referred to it under paragraph (4) and make a fresh recommendation to the local authority as to whether–

 

(a) the prospective foster carer is suitable to be a foster carer; or

 

(b) the terms of the foster carer’s approval should be varied.

 

(8) The local authority must–

 

(a) make a decision (‘the reviewed decision’) within 14 days from the date the fresh recommendation was made under paragraph (7); and

 

(b) notify the foster carer or prospective foster carer of their decision within 7 days of making the reviewed decision.

 

(9) In making a decision under paragraph (8)(a) the local authority may–

 

(a) vary the terms of the approval;

 

(b) terminate the approval; or

 

(c) approve a person as a foster carer.

 

(10) The right to request a review under paragraph (1) or (2) does not apply to a decision made under paragraph (8)(a).

 

(11) Following a review under this regulation the local authority must record in writing a report of the review and give notice of their reviewed decision under paragraph (8)(a); and paragraphs (5) and (6) of regulation 25 apply as if–

 

(a) references to the review were references to the review under this legislation; and

 

(b) references to the decision under paragraph (3) were references to the reviewed decision under regulation 26(8)(a).”

 

Counsel for the petitioner, in his submissions relied heavily on the repeated reference to “carer” in the singular, in the regulations and to the various parts of the foregoing provisions where a power to vary approval as a foster carer was conferred on the respondents.

[11]      The respondents having decided, under regulation 25, to terminate the approval of the petitioner and her husband as carers, by virtue of regulation 25(3)(b), the petitioner and her husband sought a review of that decision under the provisions of regulation 26.  The powers of variation contained in regulation 25(3)(a) and regulation 26(9)(a) it was submitted, ought to have been employed by the respondents in the present case.  Instead the prejudicial allegation made against her partner was, it seemed, being used against the petitioner.  Why was it right, it was asked, to “throw to the wind” a good foster carer such as the petitioner in those circumstances?  While it was accepted that the petitioner had been legally represented at the hearings, and that her solicitor had been allowed to make representations on her behalf, these were focused on the reliability of the allegation and the fact that this did not in any respect involve the petitioner.  It was accepted, moreover, that the possibility of any variation of the joint approval was never raised at the instance of the petitioner’s solicitor who was acting solely for the petitioner.  The petitioner and her husband were not, it was said, carrying on some joint enterprise, (although that was how they appeared to have been treated by the respondents), rather than as individuals.

[12]      In sum, reduction of the respondents’ decisions should, it was submitted, be granted because the respondents’ had failed to take into account adequately the blameless position of the petitioner and also they had failed to raise and discuss with the petitioner the possibility of a variation of the approval.  In these respects they had acted unreasonably.

[13]      Reduction, it was accepted, in the present proceedings would have to be only with regard to the decisions insofar as they affected the petitioner herself.  While it was accepted, as is averred on behalf of the respondents, that there was nothing to prevent the petitioner from making a fresh application as an individual for approval as a foster carer that, it was submitted, would not remove the stigma attaching to her if the existing decisions were allowed to stand. 

[14]      In his submissions, counsel for the respondents, pointed out that the respondents had, contrary to what counsel for the petitioner seemed to be maintaining, given anxious consideration to the fact that there was no allegation involving the petitioner herself.  Reference was made to 6/3 of process and 6/4 of process – minutes of the Foster Panel and the Appeal Panel respectively which made it clear that the respondents were fully aware of this point.  The petitioner and her husband, before the respondents, were seeking to have a continuation of their joint role as foster carers.  It was never suggested by the petitioner, nor the solicitor acting on her behalf, nor by her husband that the petitioner wished to be dealt with on the basis that she could continue as a foster carer on her own.  It was never suggested to the respondents that the husband might absent himself from their home which was the only location where care had been provided by them, to enable the petitioner to carry on as a carer on her own.  The only case by them was that they should be allowed to continue as a fostering couple.  The (undated) letter to the respondents from the petitioner and her husband intimating their original appeal against the registration commenced “We are appealing the decision against the deregistration as Positive Partner Respite Carer’s.”  The rest of the letter was cast in terms consistent with that being the position.  On the second page of the letter (7/7 of process) they stated that “We wish to appeal the decision made and request that we are able to resume the respite care specifically for…”  Counsel for the respondents, under reference to 7/1 of process, a document issued by the respondents headed – Positive Partnerships between Families for Children with Disabilities, advised the court that it was under this scheme that the petitioner and her husband carried out their fostering activities.  The scheme, as described, clearly envisaged children coming to live with carers at the carers’ home and becoming temporarily, at least, part of the carers’ family.  Specific provision is made in 7/1/6 of process for the recognition of the importance of this feature.  It states inter alia “Other adults living in your household will be asked to consent to Police and medical reports.  We will ask for consent to contact previous partners or adult children for references or information.”  The whole purpose of the scheme was, it was argued, to provide children with difficulties with a safe home environment.  The petitioner and her husband applied for registration as respite carers jointly – 7/10 of process and signed the application jointly.  The application which was granted (7/11/7 of process) concluded as follows: 

“Recommendation

 

The panel agreed to recommend that the applicants be approved as positive partnership carers…”

 

The production 7/12 of process was an agreement between the petitioner and her husband on the one hand and the respondents on the other which governed their role as registered carers.  At 7/12/13 it was specifically provided that the carer “must ensure that the Child/Young Person is cared for in a home where they are safe from harm, abuse or discrimination”.  There had never been any suggestion before the hearings that there was a possibility of the petitioner and her husband living apart and any fostering taking place in a home where he did not reside.  Not a mention of such a possibility was made before the respondents at the various hearings held.  In the review hearing of 26 February 2014 (7/4 of process) it is recorded at page 2:

“Ms Grant asked if Mr & Mrs W wanted to discuss any of the information contained in their documentation further.  Mrs W stated that they had written everything they wanted to say”.

 

On 4 September 2014 the solicitor acting for the petitioner wrote to the respondents in the following terms: 

“I confirm that the date and the time set for the Appeal is mutually convenient for my client and I.  I am concerned to note that it appears that Mr W is being separated out from this process when he has always been an integral part of the process to date.  My client and I have no objection to her husband’s Appeal being heard at the same time and wonder why at this juncture you have chosen to remove him from the process.”  (6/15/5 of process)

 

The terms of that letter, it was submitted, clearly reflected the fact that the petitioner and her husband were seeking to have both of their cases taken together and that they should be treated as joint foster carers. 

[15]      Against all of this background it was untenable to submit, as counsel for the petitioner had done, that the respondents had a duty to consider the possibility of a variation of the couple’s registration when no such possibility was ever raised with them.  The practical implications of such an approach, in any event, had not been thought through or explained by the petitioner.  Any case, therefore, based on an alleged breach of the regulations was un-stateable. 

[16]      Counsel for the respondents then turned to address the question of what remedy the petitioner was now seeking.  It seemed that what she was seeking was partial reduction of the respondents’ decisions insofar as they effected de-registration of herself, but not her husband.  The petitioner’s submissions to the effect that the respondents, by de‑registering the petitioner, were “punishing an innocent party” were entirely misconceived.  The respondents’ concern was not with penalising anyone but ensuring, so far as possible, the protection of children placed in the care of registered foster parents.  There was no case now relied upon by the petitioner to the effect that the procedures adopted by the respondents in investigating and deciding the questions before them were unfair or unreasonable.  They had provided a fair procedure for the petitioner and for her legal representative to raise all she wished to raise and to have considered and to ensure that all relevant information was before the respondents as the decision maker.  Nothing was placed before them by the petitioner, her husband or the petitioner’s legal representative to suggest that other arrangements for fostering by the petitioner alone might be put in place.  The position, it was submitted, was somewhat analogous as to that which arose in the case of Tayside Regional Council v Secretary of State for Scotland 1996 SLT 473 where a decision of the Secretary of State under the Sewerage (Scotland) Act 1968 was attacked on the basis, inter alia that he had failed to take into account a relevant consideration when arriving at his decision.  That attack was rejected by the First Division who at page 480 D – F in the opinion of the court delivered by Lord President Hope said:

“we do not see how this objection to his decision can be made, as the question was not raised with him at any stage by the local authority.  It is one thing to criticise him for not taking account of a point which is raised in the submissions for the local authority in the course of the appeal.  It is quite another thing to criticise him for not taking account of a point which was not raised with him at all.” 

 

The relevant regulations, in the present case, did not impose any duty on the respondents, ex proprio motu to raise the possibility of variation.  Their concern was directed as to whether or not it was suitable for registration to continue.  Reference was made to regulation 25(2) and 25(3).  The question of the manner of the disposal of that question was distinguishable from the principal issue of suitability.  The respondents, in the present case, were dealing with a joint registration.  The question was whether or not it was suitable for it to continue.  The question of variation would only have arisen if the petitioner or her husband or both had put forward a case that she remained a suitable person to be registered as a sole carer.  But no such possibility was raised with the respondents.  On the contrary the position before the respondents was that the petitioner and her husband wanted the status quo to continue.  In any event, the power to vary a registration provided by the regulations was a discretionary one.  As was pointed out in Regina (Khatun & Others) v Newham London Borough Council [2005] QB 37 at page 55: 

“Where a statute conferring discretionary power provides no lexicon of the matters to be treated as relevant by the decision‑maker, then it is for the decision‑maker and not the court to conclude what is relevant subject only to Wednesbury review.”

 

[17]      There was, moreover, it was submitted, an obvious problem arising from the position now adopted by the petitioner and the remedies she appeared to be seeking.  In her own pleadings she had, until a few days before the present hearing, averred that she was not now physically able to carry out foster care function.  That averment was in support of her claim for damages.  Just before the commencement of the hearing she was allowed to amend those averments to the effect that she may not be able to carry out such functions – see statement of fact 4. 

[18]      The respondents had pointed out in their answers that it was open to the petitioner, in her own right, to submit a fresh application for registration in her own name as a carer.  It was clear that, on any view of matters, having regard to the lapse of time, and the fact that she herself had raised questions regarding her ability to carry out care functions, a full review of her present circumstances and suitability at this date would require to be made.  Yet what she was seeking was reduction of the decision to de-register which would have the effect of simply reviving the existing registration.  Reduction was a discretionary remedy and having regard to the passage of time and the absence of any firm evidence about how the petitioner could acting alone, at this stage, carry out foster care functions, particularly when there was no suggestion that she and her husband would be separating permanently, in effect, or living separate lives, then reduction would be wholly inappropriate.  Reference of this connection was made to the case King v East Ayrshire Council 1998 SC 182 at page 194 C – H and 196 C – F. 

[19]      Lastly, counsel for the respondents referred to their plea of mora, taciturnity and acquiescence.  Reference was made to Hendrick v Chief Constable, Strathclyde Police 2014 SC 551.  In that case a plea of mora, taciturnity and acquiescence succeeded where a petitioner sought to have an administrative decision reduced when 22 months had elapsed from the date of the decision sought to be impugned without the petitioner having indicated to the decision maker that he would be seeking to challenge it.  In the present case the period between the final determination of the respondents and the raising of the present petition was some six months.  It was accepted by the petitioner that there had been no direct contact between the petitioner and the respondents after the final determination of matters and before the commencement of the proceedings but she relied on the fact that she had applied for legal aid to raise the present petition and that her application for legal aid had been intimated to the respondents in July 2015.  Counsel for the respondents accepted that the plea of mora, taciturnity and acquiescence was “fact and context driven” but maintained that it could be held to bar the claim in the present case. 

 

Decision
[20]      This petition falls to be dismissed.  While counsel for the petitioner sought to justify the petitioner’s complaint, as has been seen, by stressing that the regulations referred throughout to foster carer in the singular and that as a consequence the petitioner’s case and that of her husband would have been treated separately.  He did, however, accept that the rule of interpretation was that where the singular appears in statutory language it should be held to embrace the plural unless the contrary is indicated – see sections 6 and 11 of the Interpretation Act 1978.  As a matter of construction of the regulations, in my judgment, this line of argument was misconceived.  There is nothing in the language of the regulations to indicate that the normal rule of construction does not apply.  The argument for the petitioner went on to contend, however, that her case should have, in any event, been considered and decided on its own individual merits.  The petitioner had over a long period of time acted as a carer in a blameless and exemplary manner.  The allegation which had brought matters to a head was not against her but against her husband.  In that situation it was inappropriate for the respondents to have approached matters in the way they did.  With regard to these submissions, in my judgment, for the reasons clearly and fully argued by counsel for the respondent they are also without merit.  In the first place the fact of the matter was that the petitioner was registered as a joint carer along with her husband.  It was that registration which had to be considered by the respondents in the light of the allegation.  The petitioner did not, until very recently, seek to have matters addressed any differently and did not invite the respondents themselves to do so.  No point is taken now about the procedure adopted by the respondents being unfair or contrary to natural justice.  The petitioner was represented, at all material times, by a solicitor acting on her behalf.  At no time did he make the argument that her position should be considered separately and distinct from that of her husband.  Indeed the petitioner’s averments in her petition are entirely different from what was advanced before me in this respect, and counsel for the respondents was generous in not taking the point that no prior notice had been given in the petitioner’s pleadings of the case that was now being advanced.  Counsel for the respondents was well founded, moreover, in my opinion, in submitting that the remedies sought by the petitioner of declarator and reduction would mean that the original joint registration would revive so that the petitioner’s husband would be entitled to maintain that he was a registered foster carer.  Whatever might have been the position, had the petitioner, before the respondents, sought to distance herself from her husband and indicate that in practical terms she would be able, alone, to continue as a foster carer, that possibility was, it seems, never even hinted at, on her behalf, before the respondents.  To employ the language of the court in the Tayside case above, it is one thing to criticise the respondents for not taking into account a point which was taken before them.  It is quite another to criticise them for not taking account of a point which was not raised with them at all. 

[21]      Similar considerations apply, in my view, to the other point taken by counsel for the petitioner, namely that the relevant regulations confer a power on the respondents to vary a registration and that their failure to address this possibility in some way impugns their decisions.  The stark fact is that they were not invited to do so on behalf of the petitioner at any point in the hearings before the respondents in any of the submissions made to them.  The fact that such a discretionary power, along with other powers, exists in the regulations does not mean that the non-exercise of such a power, by the decision‑maker, renders the decision invalid, particularly where the affected party, or his representative, did not invite the decision maker to exercise the power in question.  In the present case the point is all the more acute because the variation that the petitioner now, at the door of the court, seems to desiderate is a variation of the joint certification to allow her to carry on activities as a carer.  Without the factual position at the present time with regard to her suitability to do so being investigated and ascertained, and in particular, how she would be capable of carrying out foster care duties, in the absence of her husband, then reduction, as sought at this stage would be wholly inappropriate. 

[22]      Furthermore, counsel for the petitioner was, in my judgment, wrong in arguing under reference to the case of Wheeler that the respondents were, in effect, “punishing” the petitioner in respect of an allegation with which she was not involved.  The respondents, in the present case, were not setting out to punish anybody as the respondents in Wheeler had done.  (See Lord Templeman at page 1080f).  The respondents are charged with the administration of the sensitive area of certifying persons as suitable to carry out the activities of foster carers.  Their over-arching and primary duty, in that context, is to provide that the safety and welfare of the children in question are protected and promoted.  It is not to provide a continuing source of employment for persons who offer such services as carers.  I am satisfied that in this case the respondents, throughout, had in mind that over‑arching consideration in reaching the decision which they did reach, which they clearly, and understandably, considered to be of an anxious nature.  They have, through their representatives, indicated that the petitioner may, if so advised, now seek to be registered in her own name.  Such an application would, of course, require her to satisfy them that the situation in which she now finds herself demonstrates that she is a suitable person and that she is capable of making suitable arrangements for the carrying out of the foster caring of children.  Standing her own averments about her present abilities in that respect, and the apparent continuing presence of her husband in her everyday life, that may prove difficult but she is free to make such an application.  For all these reasons there is no basis in law, in the material placed before me, that is supportive of the petitioner’s case.  

[23]      While I have noted the short submissions made by counsel for the respondents regarding the plea of mora, taciturnity and acquiescence there is no need for me to decide that issue in this case.  I simply observe that the present case is materially different on its facts from the facts in the case of Hendrick. 

[24]      I sustain the respondents’ third and fifth pleas in law and dismiss the petition.