I’ve been waiting for this one for a long time, the Court of Appeal decision that it is perfectly lawful for the Court to make a wardship order as an alternative to a Care Order, where the child’s accommodation can be dealt with by s20.
I blogged about the first instance decision on this case here :-
And the long and the short of it was that the child had a reactive attachment disorder and the placement with her adoptive parents had broken down as a result. The child had been accommodated, and all were agreed that rehabilitation was not possible, but an argument ensued about the nature of the order. The LA sought a Care Order, and the child’s parents sought wardship, arguing that the LA’s shabby conduct towards them meant that they could not be trusted to hold the lion’s share of PR. It was very clear from the judgment that the original judge had a great deal sympathy with the parents case and resolved most of the factual disputes in their favour. He said that wardship would be the best order, but that he was prohibited in doing so by s100, specifcially the prohibition on making a child a ward of Court where that required the LA to accommodate the child, and made a Care Order.
Following my blog post, I was contacted by the MacKenzie friend assisting the parents in their appeal, who was a thoroughly nice chap, and I gave a tiny bit of help on the skeleton, and together with Ms SuesspiciousMinds helped put them in touch with some barristers who were willing to take on their case pro bono (The LSC having scandalously decided that they should not be funded for the appeal – which they WON, which surely suggests that it had some merit?)
I am delighted that justice triumphed in this case, I look forward to seeing the whole judgment, and the parents, who have been treated very badly by the LA here, have been extremely kind in their thanks.
I also understand that as a result, this child, who was in massive need of therapeutic support has finally started to receive some, which is far more important than the law.
When I started this blog I thought it might one day help a lawyer and save them a bit of research, or that it might stir a memory in Court and allow someone to recall that “There’s a case about this”, but I never dreamt that it would actually help a real person in even a small way. So I am chuffed to bits.
E (A CHILD) (2012)
CA (Civ Div) (Thorpe LJ, Rimer LJ, Baron J) 22/11/2012
FAMILY LAW – LOCAL GOVERNMENT
CARE ORDERS : CHILDREN : COURTS’ POWERS AND DUTIES : RESIDENTIAL ACCOMMODATION : WARDS OF COURT : WARDSHIP : CHILD ACCOMMODATED UNDER S.20 OF THE CHILDREN ACT 1989 : WHETHER S.100(2)(B) OF THE CHILDREN ACT 1989 PREVENTS CHILD BEING MADE WARD OF COURT : CHILDREN ACT 1989 s.100, s.20, s.100(3), s.100(2), s.100(2)(b), s.100(2)(a) : FPR PD 12D INHERENT JURISDICTION (INCLUDING WARDSHIP) PROCEEDINGS 2010
A court was not prevented by the Children Act 1989 s.100 from making a child a ward of court where that child was accommodated pursuant to s.20.
The court was required to determine whether it was prevented by the Children Act 1989 s.100 from making a child (E) a ward of court where E was accommodated under s.20.
E had been voluntarily accommodated by the local authority under s.20. The judge in the hearing below had to choose between making E the subject of a care order, as sought by the first respondent local authority, no order at all, or a wardship order. In making that decision the judge noted that s.100(3) prevented the local authority from making an application for wardship without the leave of the court, and that if E’s parents, the appellants, wished to issue wardship proceedings they would face the obstacle of s.100(2) . The judge concluded that for the same reasons in K (Children with Disabilities: Wardship), Re [2011] EWHC 4031 (Fam), [2012] 2 F.L.R. 745, a wardship order offered more than a care order, but that were it not for s.100(2) he would have made E a ward of the court. He also stated that notwithstanding Re K and Re F (Mental Health Act Guardianship) [2001] FLR 192, he did not have jurisdiction to make E a ward of court given that she was accommodated pursuant to s.20. In light of that, the judge made a care order ruling that no order at all would have been an even worse outcome.
The appellants submitted, in reliance on Re K and FPR PD 12D, that it could not be the case that s.100(2)(b) rendered it impossible for a wardship order to co-exist with the accommodation of a child pursuant to s.20. The local authority submitted that Re K was of little assistance as it could not be stated authoritatively that the accommodation of the children considered therein was voluntary accommodation; they might have been accommodated under another statutory provision. It further contended in reliance on note 3A-1930 in a handbook on the operation of the Children Act 1989, that FPR PD 12D was erroneous in law.
HELD: The local authority’s submissions were not as persuasive as those of the appellants. In respect of Re K, it was more likely that the accommodation of the children therein had been made under s.20, Re K considered. It was very unlikely that the court had not had proper regard to the statutory limitations stated within s.100. The suggestion that FPR PD 12D had been written in error was bold given the care taken in drafting such guidelines. The note referenced did not support the local authority’s argument, not least because it was directed at s.100(2)(a) and not s.100(2)(b). The effect of s.100 was to prevent a court from making any order which had the effect of requiring a child to be placed into care or under local authority supervision. That outcome could only be achieved by going through the court’s inherent jurisdiction. There was nothing either explicitly or implicitly stated within s.100 which prevented a wardhsip order being made where a child was not required to be accommodated but was voluntarily accommodated. If agreement for accommodation ceased, the court would not be taken to be in a position to require the local authority to accommodate or supervise a child. The judge had not been prevented from making the order that he thought was more likely to address E’s welfare needs. Accordingly, the care order was set aside and replaced with a wardship order.
Appeal allowed
Counsel:
For the appellant: Martin Downs (Pro bono)
For the first respondent local authority: Lorna Meyer QC, Elizabeth McGrath
For the Guardian: Elizabeth Walker
Solicitors:
For the first respondent local authority: In-house solicitor
For the Guardian: Lloyds
suesspiciousminds 
Nice to hear this- gives a little faith in legal human beings- albeit as an unintended consequence of having set up this blog. Good on you.
This case illustrates that local authorities appear to have limitless funds for legal action, alongside a refusal to pay relatively trivial sums for much needed therapy. Is it still the case that local authority insurers (e.g. Zurich) expressly forbid local authorities to acknowledge mistakes and to offer apologies?
I don’t know about this particular case, since I happily was not advising this particular LA, but I have certainly had cases where when mistakes came to light, my LA put their hands up, said sorry and tried to make things right. I think that is certainly the culture in the NHS, where apologies can be turned into liability.
The therapy thing is still a bugbear, and one I wish had been addressed at all in the Family Justice Review. Perhaps it will be one of the areas of research – what’s the most effective forms of treatment for damaged children and damaged parents, and how can we get it delivered to them in a timely fashion.
You also gave other families hope by helping this family. Thank you. The power of the State and the resources at its disposal seem insurmountable to ordinary families, such that the law is not available to them. This leads to an unaccountable State.
What you, the family and the MacKenzie friend did here was to hold the State to account. This is healthy and necessary in order to ensure LA’s behave logically and rationally, not motivated by their own desire to be seen to be right and their willingness to go to any lengths to demonstrate this. LA’s are becoming a law unto themselves in child protection matters. With no one to question or challenge their decision making decisions are made in a vacuum – removed from reality and lacking in common sense.
What you all achieved here was hugely important for all families involved with Local Authorities. You showed that despite the imbalance of power the law applies.
Within the Next few months the whole sorry saga of “Much Needed Therapy” will have its day in court [open court] following a case almost identical to this one above, what I find astounding in these matters is the time frame it takes, when the above case returned back to the original judge in the Lower Courts he was appalled that the matter of therapy had not been addressed some 6 months after earlier judgment, instead like Mr Dale’s comments the Local Authorities tend to defend the no need approach and not accept liability for it, more so given they part fund the original Experts report, you would think they should play some part in seeking the correct resolution.
In many of these Child Care Cases its almost certain that there are a plethora of Expert Reports outlining the need for some form of therapy whether it be parents or in most cases the child, The Local Authorities seek these Expert Reports but are unwilling to accept the conclusions.
In The Case soon to be aired by a distinguished Judge the Experts for many years wholeheartedly agreed the “Applicant” needed urgent therapy when as child and many years later as an adult, sadly and again referring to Mr Dale “Zurich” have now decided with a steadfast approach there is nothing wrong with the Applicant and the Local Authority are not Liable to provide now or previously any therapy.
One mind numbing issue I find is that when a Local Authority share or have whole Parental Responsibility for any child in their care, then, the Local Authority should be in complete responsibility for any issues that child may have and it is their responsibility to address those issues whether it be therapy or other,
Thank you Mr and Ms SuesspicousMinds, the case above awoke much of my grey matter I forgot I had.
Parens Patriae – Yep only when they see fit
Hi Jerry,
That suggests that you know that there is a particular case coming on this point, rather than a “some day there will be a revolution” general aspiration – I’d be interested to know more, without obviously any breaching of confidentiality.
My view is, that subject to the changes in law which are currently posited about judicial scrutiny of care plans, currently any therapeutic needs of the child are something which the LA ought to address in the care plan, and a Judge would be entitled to hold them to account if the provisions aren’t sufficient, and even hold them to ransom by not making the Care Order until the care plan is sufficient.
The harder thing of course, is where a Local Authority sets out plans for therapy in the care plan approved by the Court but it doesn’t happen. That’s what the Court of Appeal tried to fix with ‘starred care plans’, and we still lack a mechanism for recalling cases to Court where the issue is not about whether the State should care for the child but about the WAY they are doing that. As you know, the mechanism brought in where Independent Reviewing Officers could refer slips in the care plan to CAFCASS has been used only 8 times, and none of those times resulted in CAFCASS making the human rights application to the Court.
If you’re talking about therapy for adults, well, I can’t see that any Court can overturn Kent County Council and G, that being a House of Lords case, so we would be dependent on an actual Act of Parliament for that. Given that the entire Family Justice Review was silent on the principle of how we take the information gleaned from care proceedings and apply it to stop parents going through such an ordeal in the future, I’m not certain we will be seeing any such legislation.
I would hope, forlornly, and I think it is worth lobbying for, that the ‘research’ the Family Justice Council through Mr Justice Ryder are commisioning, would include some research into whether therapy makes a difference to parents in that situation, what the timescales and prognosis are, how it can be properly accessed and funded, and whether there’s an obvious cost-benefit study to be done showing that spending money on fixing parents who have been found to be unable to care for their children is better than spending money over and over again on removing more children from them. (I have a view, but we need proper research to convince those who hold the purse-strings)