Re S (Minors) (Care Order: Implementation of Care Plan); Re W

JurisdictionUK Non-devolved
JudgeLORD NICHOLLS OF BIRKENHEAD,LORD MACKAY OF CLASHFERN,LORD BROWNE-WILKINSON,LORD MUSTILL,LORD HUTTON
Judgment Date14 March 2002
Neutral Citation[2002] UKHL 10
Date14 March 2002
CourtHouse of Lords
In Re S (FC)
(Appellant)
In Re S

And Others

(Respondents)
In Re W

And Others

(Respondents)(First Appeal)(FC)
In Re W

And Others

(Respondents) (Second Appeal) (Conjoined Appeals)

[2002] UKHL 10

Lord Nicholls of Birkenhead

Lord Mackay of Clashfern

Lord Browne-Wilkinson

Lord Mustill

Lord Hutton

HOUSE OF LORDS

LORD NICHOLLS OF BIRKENHEAD

My Lords,

1

These appeals concern the impact of the Human Rights Act 1998 on Parts III and IV of the Children Act 1989. The Court of Appeal (Thorpe, Sedley and Hale LJJ) made, in the words of Thorpe LJ, two major adjustments and innovations in the construction and application of the Children Act. The principal issue before your Lordships' House concerns the soundness of this judicial initiative.

The Torbay case

2

The appeals concern four children, two in the Torbay case and two in the Bedfordshire case. The cases are factually unrelated. In the Torbay case the mother had three children: P, who is a boy born in August 1987, M, a boy born in January 1991, and J, a girl born in January 1992. The children are now 14, 11 and 10 years old. The appeal concerns the two younger children. The father of P, the eldest child, played no part in these proceedings. The mother met the father of M and J in 1987. They started to cohabit in 1989.

3

Serious problems emerged in May 1999 when P ran away from home and refused to return. He said that his stepfather, namely, the father of M and J, had repeatedly beaten him and that he was afraid of him. Torbay Council arranged a foster placement. The father denied the charge and the mother supported him. They united to reject and isolate P. At a case conference held in November 1999 the father behaved appallingly. He was arrested for threatening behaviour, charged and subsequently sentenced to community service. This prompted Torbay to issue an application for a care order in respect of P and supervision orders in respect of M and J.

4

In May 2000 P told a fuller story. He described how the father had buggered him on several occasions. A child protection investigation followed. Again the father denied the allegations. Again the mother supported him. M and J were then taken into care, pursuant to an emergency protection order of 7 June 2000, and placed in foster care. In July 2000 the mother and the father separated, apparently in order to strengthen the mother's case for the return of M and J. The paediatric examinations of the children were inconclusive. But an acknowledged expert in this field reported that the father presented an unacceptable risk to the children and that the mother was incapable of protecting them. He recommended therapy for her. At this stage the separation of the mother and father became permanent. The mother was then aged 36. The father was 31 years old.

5

Torbay, the local authority, sought care orders in respect of all three children. Its care plan for P was that he should remain in foster care. The care plan for M and J was that an attempt should be made to rehabilitate them with their mother. After hearing much evidence, Her Honour Judge Sander, sitting at Plymouth County Court, made findings of fact on 1 November 2000. The father was found to have sexually abused P and beaten the children with a slipper. The mother had failed to protect the children. Both parents had emotionally abused the children, particularly by rejecting P.

6

Everyone agreed there should be a care order in respect of P. There was contention over what order should be made regarding the two younger children. Discussions took place regarding the care plan for them. The mother and the children's guardian elicited assurances from Torbay on the package of support and treatment available to the family which was needed to make rehabilitation viable. Counsel for the mother, Miss Duthie, sought some guarantee of performance, or a safeguard in the event of breach. She submitted that a care order should not be made on the footing that all power and responsibility would pass to Torbay. This, she submitted, would constitute a breach of the human rights of the mother and the children. Such an order was neither necessary nor proportionate to the end to be achieved. Based on previous experience, of which evidence was given, the mother was very sceptical about whether Torbay would carry out the care plan for M and J. The mother contended that interim care orders should be made. Torbay and the children's guardian sought final care orders.

7

The judge made final care orders in respect of all three children on 1 November 2000. She expressed confidence that Torbay would implement the care plan.

8

Unhappily, this confidence proved to be misplaced. There was, as the Court of Appeal accepted, a 'striking and fundamental' failure to implement the care plan regarding M and J. Most of the assurances given by the social workers, and accepted by the children's guardian and the judge, proved vain. The mother's principal complaints were as follows. The care plan envisaged reunification within six to nine months. But in the four and a half months which had elapsed between the making of the care orders and the hearing of the appeal nothing had happened. The planned family therapy work had not taken place. A social worker was not provided to assist the mother. The Hillside Family Centre programme was not started until early in March. The therapy proposed for the mother was not under way.

9

The Court of Appeal observed that this 'sad history of potentially disastrous failure' fully vindicated the line taken by Miss Duthie at the trial. The Court of Appeal acquitted Torbay of bad faith. The most that could be said against the council was that at the trial it had too readily promised support for which the mother later proved to be ineligible. The principal cause of 'these serious failings' was a financial crisis within the unitary authority leading to substantial cuts in the social services budget.

10

The mother's primary contention in the Court of Appeal was that the judge had erred in rejecting her contention that interim care orders, as distinct from final care orders, were the appropriate relief regarding M and J. Torbay and the children's guardian opposed this contention. They submitted that the mother's appeal should be dismissed. The children's guardian also sought directions for trial under section 7 of the Human Rights Act by a High Court judge to establish the nature and extent of Torbay's breaches, if any, of its duty to the children under section 6 of that Act.

The Bedfordshire case

11

The Bedfordshire case concerns two boys: J, born in May 1989, and A, born in August 1991. They are now 12 and 10 years old. Their mother, now aged 38, is American. Their father, aged 46, is British. The parents met in the United States and married in this country. Their children were born here. They have had a volatile relationship, separating and being reconciled on a number of occasions. They have spent significant periods living apart. Throughout their lives the children have had contact with their father. Until 6 September 1999 the children lived with their mother.

12

At times, during much of the children's lives, there has been concern about their parents' ability to meet the children's needs. This has centred on the parents' relationship and the mother's mental health. In 1999 this anxiety deepened. The mother made allegations against the father. These were not substantiated. The mother's conduct deteriorated. There was concern about the children's emotional development, and the failure of the parents to acknowledge the extent of the problem.

13

On 2 September 1999 Bedfordshire County Council applied for care orders. Pursuant to an emergency protection order and interim care orders, periodically renewed, the children were placed with foster parents. Bedfordshire's final care plan was that the children should be placed with the maternal grandparents, with continuing direct contact with both parents. The grandparents lived in the United States. They agreed to move to England to care for the children. The children were to remain in foster care until the grandparents moved here.

14

The children's guardian also supported placement with the maternal grandparents. The final report of the guardian concluded that the parents had not made sufficient changes for the children to be returned safely to their care for the foreseeable future.

15

The applications for care orders came before His Honour Judge Hamilton, sitting in Luton County Court, on 20 November 2000. He heard evidence over nine days, and gave judgment on 11 December. The judge concluded that the children were unable to return safely to the joint care of their parents: 'possibly, or even probably, it may be appropriate in twelve to eighteen months, but not now'. All the parties agreed that the maternal grandparents would be suitable carers, although the evidence that they would be able to come here was 'exiguous in the extreme'. The judge described the care plan as inchoate, because of all the uncertainties involved. In addition to uncertainty about the grandparents' position, the uncertainties included the outcome of further assessment and therapy for the boys, the final outcome of marital work for the parents, and the possibility of improvements with the mother's personality trait. The judge made care orders for both children.

The outcome in the Court of Appeal

16

The Court of Appeal heard appeals in both cases together. The parties' arguments were wide-ranging as, indeed, they were before your Lordships' House. The Secretary of State for Health was joined as a party because of claims for a declaration that sections 31, 33(3), 38 and 100 of the Children Act are incompatible with the Convention for the Protection of Human Rights and Fundamental Freedoms.

17

Stated shortly, the two...

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