Re W (Children)

( Approved by the Court)

The present appeal concerns twins, HW and AW, born on 27 March 2000 and therefore five years of age. They are the youngest children of their parents who are in their early 40s. There have been problems in the parenting of older children, to which it is unnecessary to refer. It is sufficient to record that the view of the professionals, certainly by 2003, was that these parents required a good deal of professional support to enable them to meet good enough standards of parenting.

There were public law proceedings in relation to the twins. They were resolved on 23 February 2004 when care orders were made by consent on the basis of care plans that ensured that the twins would, for the foreseeable future, remain at home with their parents.

Unfortunately, the care plan did not travel well. Coincidentally there were major changes in the local authority's staff allocated to the case, either as a consequence of career moves or emigration. There were incidents in April which gave rise to serious concerns on the part of the local authority. There was a meeting on 20 April attended by the parents in which a number of concerns were addressed. One of the root problems—and it is a thread running throughout the father's adult history—is drink. At the meeting it was recorded that he had missed appointments at the local treatment centre, attendance at which had been one of the buttresses of the care plan. Accordingly in the action list towards the end of the minute it was recorded that the father was to re-engage with the treatment centre. The note concludes thus:

"[The chief social worker] concluded that these concerns and [father's] reluctance to accept responsibility for them represented a real deterioration in their care of [the twins], and raised serious concerns re the boys' welfare. As a consequence, it was stated that the Review on 07.05.2004 would become a legal meeting and the children would be recommended to remain on the Child Protection Register. [The parents] were advised to seek legal representation."

The child protection review meeting on 5 May summarised continuing concerns. Again in the child protection plan there was a record that the father would keep his appointments at the treatment centre and be honest about his alcohol use, bearing in mind that he had been observed drinking on the past two Friday afternoons.

Mr Tolson QC, who has appeared for the parents this morning, has fairly emphasised that at that stage the condition for continuing parenting was not expressed to be abstinence. The meeting of 5 May reached a conclusion that the twins could not be safely parented at home despite significant support.

On 11 May the local authority took the formal decision not to continue with the implementation of the care plan and informed the parents that they intended to remove the twins on 18 May. The parents' legal reaction was to file applications for discharge of the care orders. That was achieved on either 12 or 13 May. That led to a hearing on the 18th, as a matter of urgency, before HHJ Ticehurst. The judge was clearly concerned at the precipitate removal of the children and sought to persuade the line manager to hold his hand, pending further hearings in the county court. The local authority, as they were perfectly entitled to do, refused that invitation and the children were removed. Judge Ticehurst was, however, able to arrange a further hearing before HHJ Neligan on 24 May. On that occasion the judge adjourned the parents' application until November. Clearly there were serious issues that required profound investigation and proper preparations had to be made for a full hearing on oral evidence. The judge gave directions, and further directions were given in both June and September.

The local authority's position hardened with the passage of time and, on 25 October, they issued an application for an order freeing the twins for adoption. The third application which was to come before Judge Neligan was an application for an injunction issued by the parents only on 11 November. The application was issued under the Human Rights Act and sought an order that the local authority return the children to their natural home. Judge Neligan conducted the hearing between 15 and 19 November, a full five days of evidence and submissions, at the conclusion of which he reserved his judgment. His written judgment was handed down on 13 December 2004. It explained his reasons for dismissing both the applications of 13 May and 11 November. Further, he explained his decision to adjourn the local authority's application of 25 November to some later date to enable the guardian ad litem to complete her investigations and to express her recommendation.

There was in the reserved judgment a consideration of a point of law which the judge explained thus:

"In this case, once the local authority was satisfied that the placement with the parents no longer promoted or safeguarded the twins' welfare, or was prejudicial to their safety, within its duty under section 22(3) of the Children Act 1989, the assistant director had a duty to end the placement with the parents under the care order because of regulation 11(1) of the Placement of Children with Parents Regulations 1991. Consequently, I find that the local authority could not have acted differently once it had decided that the placement with the parents no longer safeguarded and/or promoted the twins' welfare under section 22(1)(a) of the Children Act 1989.

Section 6(1) of the Human Rights Act 1998 provides that 'it is unlawful for a public authority to act in a way which is incompatible with a Convention right'. A right to enjoy family life is such a right by Article 8. But section 6(2) states that subsection (1) does not apply to an Act if, '(a) as the result of one or more provisions of primary legislation the public authority could not have acted differently, or (b) in the case of one or more provisions of, or made under, primary legislation … which cannot be read or given effect in a way which is compatible with a Convention rights the authority was acting so as to give effect to or enforce those provisions', that is, the provisions of regulation 11(1) of the 1991 Regulations and section 22(1)(a) of the Children Act.

Therefore, I do not find that the local authority acted unlawfully under section 8 of the Human Rights Act in this case."

Mr Tolson successfully applied for permission to appeal the judge's ruling on that point of law. The judge's permission was limited to that single point. Once the papers arrived in this court they were routinely placed before my Lord Wall LJ as the supervising Lord Justice. He pragmatically and sensibly extended the ambit of the appeal since that was forcefully sought by Mr Tolson. Clearly if this court was to consider the case overall, it was convenient to have all Mr Tolson's arguments at large.

Before coming to Mr Tolson's submissions I will sketch in the legal framework, following the course set by Mr Jonathan Baker QC in his admirably clear skeleton.

The starting point is of course that once a care order has been made on the basis of a care plan the local authority has a responsibility to use its best endeavours to implement the plan approved by the court. However, as we all know, the future course of developing lives is impossible to predict and there will inevitably be from time to time the necessity to return to the care plan and to revise it to reflect changes in circumstance. In making revision, obviously the local authority remains under an obligation not to infringe the rights of members of the natural family, particularly in circumstances where the original care plan shared with the local authority the responsibility for daily care.

The obligation is both procedural and substantive and the procedural component requires the local authority to consult with the relevant members of the natural family and involve...