Re S and W (Children) (Care Proceedings: Care Plan)
| Jurisdiction | England & Wales |
| Judgment Date | 2007 |
| Year | 2007 |
| Date | 2007 |
| Court | Court of Appeal (Civil Division) |
Care orders – Local authority – Local authority changing care plan in respect of one of three siblings – Judge refusing to make care order and adjourning application for reconsideration of care plan by local authority – Whether judge having power to make orders.
The parents had three children, CH, born in 2000, CO, born in 2002 and L, born in 2003. The local authority instituted care proceedings in respect of the children. The threshold criteria under s 31 of the Children Act 1989 were plainly satisfied, and there was no question of any of the children living with either of their parents, who had separated, but remained in contact. Due to the level of the disturbance shown by the children, particularly CH and CO, the local authority’s original care plans were that each child should be placed separately for adoption outside the natural family. Those care plans were supported in each case by the children’s guardian in the proceedings, and the cases of CH and CO had both been before the local authority’s adoption panel, which had approved the plans for adoption. The children had, for a short time, lived with their maternal grandparents but, because of the grandparents’ inability to cope, had been moved into foster care. In the circumstances, the grandparents reluctantly concluded that there was no point in their seeking an order that they should be permitted to care for one of more of the children. However, in highly unusual circumstances, the local authority’s fostering panel subsequently recommended that the children’s great aunt and uncle, Mr and Mrs W, should be approved as kinship foster carers for CO. That caused the local authority, at a very late stage, to revise its care plan for CO, which became placement with Mr and Mrs W under a care order. The grandparents then sought to intervene in the proceedings, and to seek orders that the other two children should live with them. Their application was made only four days before the final hearing. The judge gave them permission to pursue applications for residence orders in relation to CH and L. He refused an adjournment sought by the grandparents to enable them to be assessed as carers by the local authority, and refused an application by the local authority to alter the care plans for CH and L. The position was then as follows: the local authority sought care orders under the 1989 Act in relation to all three children, and placement orders under the Children and Adoption Act 2002 in relation to CH and L. Its care plan for CO was that he would be placed with Mr and Mrs W. The actual care plans for CH and L
remained adoption outside the family. However, there was disagreement within the local authority itself. The principal social worker in the case, Ms B, supported by the guardian, adhered to the original care plan for stranger adoption for all three children. Others within the local authority disagreed, and the authority, through counsel, made it clear to the judge that if he made a care order in relation to CO, the child would placed with Mr and Mrs W. The judge made both care and placement ordered in relation to CH and L, on the basis that the care plan for each of those children remained a separate plan for adoption outside the family. He refused, however, to make a care order in relation to CO, and adjourned the application relating to CO in order that the director of social services should consider re-amending CO’s care plan. All the parties appealed. It subsequently transpired that if the care orders in relation to CH and L were allowed to stand, the local authority would not place them for adoption, but would continue a process it had already in fact begun, namely to re-assess the grandparents as prospective carers. The local authority submitted, inter alia, that the judge, when faced with a cohate (sic) care plan, could not adjourn the matter in order that the director of social services should reconsider the plan.
Held – (1) Before a care order could be made, the local authority had to satisfy the court that the threshold criteria under s 31 of the 1989 Act were satisfied, and the court also had to be satisfied that a care order was in the best interests of the child concerned. To the latter end, the court was under a duty rigorously to scrutinise the care plan advanced by the local authority, and if the court did not think that it met the needs of the child concerned, the court could refuse to make a care order. The court also had the right to invite the local authority to reconsider the care plan if the court came to the conclusion that the plan, or any change in the plan, involved a course of action which the court believed was contrary to the interests of the child, and which would be likely to lead the court to refuse to make a care order if the local authority were to adhere to the care plan it had proposed. In the instant case, the local authority’s submission that the judge did not have the power to invite the local authority to reconsider the care plan was simply and plainly wrong. Moreover, it was plain that counsel for Mr and Mrs W and the local authority had misunderstood and misinterpreted the most important authority in the field, a decision of the House of Lords.
(2) In the instant case, the judge was plainly of the view that the needs of the children required that all three should be placed in separate adoptive families, and that the local authority’s change of care plan was unwarranted. That was a conclusion that he was plainly entitled to reach, and his decision to invite the local authority to reconsider its care plan for CO was not only manifestly open to him, but one which was necessary if he was to fulfil his duty to make orders which he believed to be in the best interests of the children. The only reason that the court was interfering with the judge’s perfectly proper order was because of the unprincipled conduct of the local authority. It was plain that if the court left the judge’s order undisturbed, it
would be leaving in place care and placement orders for CH and L based on care plans which the local authority had no intention of implementing. What had happened since the hearing made it inevitable that the care proceedings had to be reheard.
(3) In addition to any further assessment which the local authority might wish to carry out, it was essential that there were wholly independent assessments of Mr and Mrs W and the maternal grandparents by professionals whose stature and competence was recognised on all sides.
The local authority had demonstrated (Ms B apart) that its decision making processes were flawed, and that its judgment could not be trusted. The care proceedings would be reheard by a judge of the Family Division who was also authorised to sit in the Administrative Court. Accordingly, the appeals would be allowed.
Cases referred to in judgmentC v Solihull Metropolitan BC[1992] 2 FCR 341, [1993] 1 FLR 290.
CH (a minor) (care or interim order), Re[1998] 2 FCR 347, [1998] 1 FLR 402, CA.
J (a child) (care proceedings: fair trial), Re[2006] EWCA Civ 545, [2006] 2 FCR 107.
M (care: challenging decisions by local authority), Re [2001] 2 FLR 1300.
R (minors) (care proceedings: care plan), Re[1994] 2 FCR 136; sub nom Re J (minors) (care: care plan) [1994] 1 FLR 253.
S (children: care plan); Re W (children: care plan), Re[2002] UKHL 10, [2002] 1 FCR 577, [2002] 2 All ER 192, [2002] 2 AC 291, [2002] 2 WLR 720, [2002] 1 FLR 815.
S and D (child case: powers of court), Re[1995] 1 FCR 626, [1995] 2 FLR 456, CA.
V (a child) (care proceedings: human rights claims), Re[2004] EWCA Civ 54, [2004] 1 FCR 338, [2004] 1 All ER 997, [2004] 1 WLR 1433, [2004] 1 FLR 944.
V (a child) (care: pre-birth actions), Re[2004] EWCA Civ 1575, [2006] 2 FCR 121, [2005] 1 FLR 627.
X, Barnet London BC v Y and Z, Re [2006] 2 FLR 998.
AppealsThe first appellant local authority, second appellant mother and third appellant maternal aunt and uncle of three children (H, O and L) appealed against the orders of Judge Styler in the Stoke on Trent County Court, dated 15 January 2007, in relation to care and placement orders for all three children. The facts are set out in the judgment of Wall LJ.
Deborah Gosling for the first appellant.
Ginnette Fitzharris for the second appellant.
Graham Bailey for the third appellant.
Remy Zentar for the first respondent.
Julia Cheetham for the second, third, fourth respondents.
Ginette Fizharris for the fifth respondent.
WALL LJ.[1] This is the judgment of the court.
[2] On 28 February 2007, we heard applications for permission to appeal against orders made by Judge Styler in the Stoke on Trent County Court on 15 January 2007, at what was intended to be the final hearing of care proceedings under Pt IV of the Children Act 1989. In the event, we were constrained to give permission to appeal, allow the respective appeals and direct a re-hearing of the care proceedings before one of High Court judges of the Family Division who is also authorised to sit in the Administrative Court.
[3] Although announcing our decision on 28 February 2007, we reserved our reasons. This was because the applications engaged a number of important principles of family law, notably the relationship between the court and the local authority in care proceedings. Although we had thought these principles well entrenched, it appears from the conduct of the local authority in question, the Cheshire County Council, that this may not be the case. We propose, therefore, to take the opportunity presented by this judgment to re-state the law in clear and unequivocal terms.
[4] This is a case to which reporting restrictions apply. The only exception is that, for reasons which will become apparent, we have named the local authority in the case, the Cheshire County Council. We will, however, henceforth refer to that body as ‘the local authority’.
THE ISSUES RAISED BY THE APPEAL IN OUTLINE[5] SW (the mother) and DS (the father) have three children. They are...
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