Re W and B (Children: Care Plan); Re W (Children: Care Plan)

JurisdictionEngland & Wales
Judgment Date2001
Date2001
CourtCourt of Appeal (Civil Division)

Practice – Care orders – Division of responsibilities between courts and local authorities – Two appeals – Parents seeking to have care orders set aside – Whether Children Act 1989 incompatible with Human Rights Act 1998 – Whether advent of Human Rights Act 1998 requiring court to redefine role of trial judge – Whether Convention rights requiring court to withhold from making care order until uncertainties resolved – Children Act 1989Human Rights Act 1998, s 7European Convention on Human Rights, arts 6, 8.

In two separate appeals the appellants contended that if the Children Act 1989 was not to be held incompatible with the European Convention on Human Rights pre-existing case law governing the interpretation and operation of the Act would need to be modified to ensure compatibility. In the first appeal, the T case, the mother had three children. The eldest, P born in 1987, ran away from home in 1999 alleging that his stepfather of 10 years had repeatedly beaten him. The mother and stepfather united to reject P who subsequently alleged sexual abuse by his stepfather. Whilst paediatric examinations of P and his stepsiblings were inconclusive there was expert opinion that the allegations were well founded and that the mother was incapable of protecting the children from the perpetrator. The local authority sought care orders in relation to all three children though, as the mother and the stepfather had separated, it was planned to rehabilitate the younger children to her. The judge found that the stepfather had sexually abused P, that he had repeatedly beaten the children with a slipper, that the mother had failed to protect the children and that both parents had emotionally abused the children. It was then agreed that there should be a care order in respect of P, and a package of support and treatment was negotiated during the hearing to assist the rehabilitation of the younger children to the mother. The mother sought interim care orders as final orders would disempower the guardian ad litem and pass all responsibility to the local authority. The judge rejected the mother’s arguments and the mother appealed on the basis that the judge’s rejection of the submission for an interim care order was erroneous. Alternatively, it was argued that the advent of the Human Rights Act 1998 obliged the court to redefine the role of the trial judge, or in the further alternative that the mother was entitled to a declaration of incompatibility. In the second appeal, the B case, the mother and father had married in 1988 and had two children born in 1989 and 1991. Due to the fact that the mother suffered from bi-polar affective disorder the parents separated several times during the course of the marriage. At the time of the

appeal the mother was accepting treatment and her illness was controlled. The children had been taken into care in September 1999 and had had several unsatisfactory foster placements. There were many experts involved in the case including doctors, the mother’s psychiatric social worker, the parents’ family therapist and those reporting on the children. At the hearing the judge considered whether as a result of the parents’ reconciliation and the improvement in the mother’s mental health it would be safe to return the children to the parents in the near future. He reviewed the evidence and cited at length from the reports since he considered it a case where the expert evidence was decisive. He summarised the uncertainties in the case, reviewed the relevant case law and dismissed a submission that arts 6 and 8 of the European Convention required a reconsideration of the principles developed in the relevant cases. He made a full care order and the parents appealed adopting the submissions made in the first appeal. It was further argued that their Convention rights required, at the very least, that the judge withheld from the making of a final care order until the many uncertainties had been resolved.

Held – (1) Whilst there was no fundamental incompatibility between the Children Act 1989 and the Human Rights Act 1998, the court was under a duty to construe earlier statutory provisions in a manner compatible with the European Convention on Human Rights. In the past the 1989 Act had been construed and applied in a way which exposed it to challenge on human rights grounds. As a consequence there might have been a breach of the right to respect for family life through interference or failure to take necessary steps, either to protect a child or to advance a child’s life from its family of birth to an alternative family. Equally there might have been a breach of the right of access to the courts where a young child was deprived of the guardian ad litem whose primary function was to ensure the child’s representation. In future such breaches or risks of breach could be avoided by two major adjustments and innovations to the construction and application of the 1989 Act. First, the judge at trial should have a wider discretion to make an interim care order where the care plan seemed inchoate or where the passage of a relatively brief period seemed bound to see the fulfilment of some event or process vital to planning and deciding the future. In an appropriate case, a judge should be free to defer making a care order until he was satisfied that the way ahead was no longer obscured by any uncertainty that was neither inevitable nor chronic. Secondly, the greater concentration on the quality of the care plan should be extended to a collaborative assessment of its essential milestones which should then be elevated to starred status. Where the parties could not agree it was a matter for the court to decide. A subsequent failure to achieve a starred milestone within a reasonable time of the date set at trial would reactivate the interdisciplinary process which contributed to the creation of the care plan. At a minimum, the local authority would be required to inform the guardian ad litem of the failure. Either the guardian or the local authority would then have the right to apply to the trial court for further directions. If for any reason the original guardian was not available, the local authority would be required to apply for directions. The responsibility on the courts in the exercise of those powers would be to ensure that they were used only to avoid or prevent

the breach of a right of one of the parties under either art 6 or art 8 of the Convention. If no actual or prospective breach of right was demonstrated then the power would not arise. Even where the application was well founded, the court should always remain mindful of its limitations and at the same time respectful of the responsibility and function of the local authority. Any continuing interaction between the court and the local authority would be, as far as appropriate, collaborative and with no other objects than to promote the welfare of the child and to ensure for the child and the other parties to the proceedings their Convention rights. In addition, proceedings could be initiated under s 7 of the 1998 Act, although that remedy would need to be supplemented by the introduction of a duty to report and a power to review.

(2) In the first appeal, whilst the outcome was finely balanced it had to remain open to the judge to express confidence in the local authority’s plans. Further, the judge’s order was in accordance with the authorities developed prior to the implementation of the 1998 Act. Accordingly, the first appeal would be dismissed. In the second appeal the care plan was insufficiently mature and the judge wanted further time to await developments. It was only the authorities that had constrained him to make a full care order. The care order would therefore be set aside and replaced with the interim care order that the judge would clearly have made had he felt free to do so. Accordingly, the second appeal would be allowed.

Cases referred to in judgments

A v Liverpool City Council [1982] AC 363, [1981] 2 All ER 385, [1981] 2 WLR 948, (1981) 2 FLR 222, HL.

Andersson v Sweden (1992) 14 EHRR 615, ECt HR.

C 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.

Cossey v UK (1990) 13 EHRR 622, [1990] ECHR 10843/84, ECt HR.

Eriksson v Sweden (1989) 12 EHRR 183, [1989] ECHR 11373/85, ECt HR.

F (adult: court’s jurisdiction), Re[2000] 3 FCR 30, [2001] Fam 38, [2000] 2 FLR 512, CA.

Halford v UK (1997) 24 EHRR 523, [1997] ECHR 20605/92, ECt HR.

Hendriks v Netherlands (1982) 5 EHRR 223, ECt HR.

Johansen v Norway (1996) 23 EHRR 33, [1996] ECHR 17383/90, ECt HR.

KDT (a minor) (care order: conditions), Re[1994] 2 FCR 721, [1994] 2 FLR 423, CA.

L (minors) (care proceedings: appeal), Re[1996] 2 FCR 352; sub nom Re L (sexual abuse: standard of proof) [1996] 1 FLR 116, CA.

López Ostra v Spain (1994) 20 EHRR 277, [1994] ECHR 16798/90, ECt HR.

Malone v UK (1984) 7 EHRR 14, [1984] ECHR 8691/79, ECt HR.

Marckx v Belgium (1979) 2 EHRR 330, [1979] ECHR 6833/74, ECt HR.

McMichael v UK (1995) 20 EHRR 205, [1995] ECHR 16424/90, ECt HR.

O (a child) (supervision order: future harm), Re[2001] 1 FCR 289, [2001] 1 FLR 923, CA.

Olsson v Sweden (no 1) (1988) 11 EHRR 259, [1988] ECHR 10465/83, ECt HR.

R (minors) (care proceedings: care plan), Re[1994] 2 FCR 136; sub nom Re J (minors) (care: care plan) [1994] 1 FLR 253.

Scott v Scott [1913] AC 417, [1911–13] All ER Rep 1, HL.

Scott v UK[2000] 2 FCR 560, [2000] 1 FLR 958, ECt HR.

Silver v UK (1983) 5 EHRR 347, [1983] ECHR 5947/72, ECt HR.

Sunday Times v UK (1979) 2 EHRR 245, [1979] ECHR 6538/74, ECt HR.

X (minors) v Bedfordshire CC, M (a minor) v Newham London BC, E (a minor) v Dorest CC[1995] 3 FCR 337, [1995] 2 AC 633, [1995] 3 All ER 353, [1995] 3 WLR 152, [1995] 2 FLR 276, HL.

X v Netherlands (1985) 8 EHRR 235, [1985] ECHR 8978/80, ECt HR.

Y (a minor) (child in care: access), Re [1976] Fam 125, [1975] 3 All ER 348, [1975] 3 WLR 342...

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