The Court of Appeal decision in Re W (A child) v Neath Port Talbot Council 2013
You may recall all of the President’s guidance recently about how bundles in care proceedings were going to become lean, mean fighting machines, stripped of all excess information like a formula one racing car; well that took a bit of a hit with Re B-S, which required that Local Authorities and Guardians unpackage all of the concepts that were traditionally contained in shorthand phrases and lay them out for inspection, not only in general but in application to the particular child in the case, and now Neath Port Talbot expands final evidence even further.
The Court of Appeal lead judgment is given by Ryder LJ, but the chilling /delightful bit (depending on which side of the fence you sit on) is from the very small judgment from the President
I agree with the judgment given by Ryder LJ. There is nothing I can usefully add except to emphasise the importance of the principles he has set out so clearly. His judgment explains and elucidates the respective functions of the court and the local authority in care cases. It complements the recent judgment in Re B-S, which explains and elucidates what the court requires from the local authority (as well as from others) in those care cases where the plan is for adoption. The principles in these two judgments will for the future inform practice in all care cases
So, this isn’t going to be case-specific stuff, it is general principles.
The appeal itself covered three areas, and I’m largely going to concentrate on the middle one.
1. A Judge who wanted to embark on a finding of fact exercise that the Local Authority and the mother didn’t seek (largely because a psychologist expert in the case urged the Judge to do so)
2. The extent to which Local Authority final evidence should set out not only the detail of their own care plan, but the detail of how they would manage the case and what resources would be provided under the various other placement options for the child.
3. What the Court is to do where the care plan they have in mind is not the same as the Local Authority’s care plan.
On point 1, which frankly bogs down in a lot of detail the other more important principles of the case; this would normally be a fascinating subject to write about, I just wish that it had arisen in a case that was confined to that issue. It was a peculiar one, and the Judge ended up making a Care Order with a care plan that the child would be at home with mother and receiving significant support. Neither the LA nor the mother wanted a care order, and the Judge effectively made a Care Order and endorsed a care plan that wasn’t actually placed before her.
The Court of Appeal felt that it WAS open to a Judge to decide what facts needed to be determined, notwithstanding that that view wasn’t shared
The making of findings of fact and value judgments is not confined to those matters which a local authority seeks to pursue once proceedings have begun. That much is clear, the court can decline to permit the local authority to withdraw proceedings and can impose upon them an order that they did not or no longer seek.
On point 3, the Court of Appeal spent some considerable time analysing what is to be done where the Court having heard all of the evidence and argument wants to make a Care Order with a care plan that the Local Authority do not put forward.
“In relativity, Matter tells Space how to curve, and Space tells Matter how to move. The Heart of Gold told Space to get knotted and parked itself neatly within the inner steel perimeter of the Chamber of Law” – Douglas Adams
In the Children Act 1989, the Courts tell a Local Authority what order they can have, and the Local Authority tell the Court what they will do with that order. The Court of Appeal just effectively told Local Authorities to get knotted. I’m paraphrasing, of course.
We’ve historically had authorities that show that the Court can invite the LA to change their care plan, and that LA’s should listen carefully, but nothing that settles what happens when immovable object meets irresistible force.
This is what the Court of Appeal say
It can be stated without question that once a full care or supervision order is made the family courts’ functions are at an end unless and until a jurisdiction granted by Parliament or otherwise recognised in law is invoked by an application that is issued. That applies equally to the High Court whether in the Family Division of the High Court in the exercise of its inherent prerogative or Convention jurisdictions or in the Queen’s Bench Division of the High Court in the exercise of its public law jurisdiction in the Administrative Court.
Within proceedings, however, the local authority in common with all other parties, are bound by the case management decisions of the court. It is the court which decides what the key issues are, that is the matters of disputed fact and opinion that it is necessary to determine in order to make the ultimate decision asked of the court. It is the court which decides the timetable for the child having regard to the welfare of that child and then the implications of that welfare timetable upon each of the interim procedural questions that it is asked to decide. It is the court which decides the timetable for proceedings. The court decides whether there are sufficient facts which if found would satisfy the threshold and provide the jurisdiction to make orders and it is the court which decides what evidence is necessary to answer the key issues and the ultimate decision, whether by directing the local authority or the other parties to provide the same or, if it is necessary, authorising the instruction of an expert on the question.
Yes, but what is the Court to ACTUALLY do? Here is Ryder LJ’s final solution, in addition to a hint on judicial review (although that begs the question of who the hell would issue a JR to make the LA’s order for a child at home a CARE order rather than a Supervision Order. I’m damn sure the parents won’t. Ryder hints that the child’s representatives might well be the ones to do so…I am not so sure about that)
The court considered the invitation to give an indication to the local authority and allow them to reconsider their position but came to the conclusion that even in a case where the child is to remain with a parent the proper administration of family justice and the detrimental effects of continuing litigation required immediate and timely action. Partnership working sometimes needs sanctions for compliance. In the unlikely event that a local authority declines to abide by a judge’s orders and directions in the future, the judge should inform the local authority’s monitoring officer appointed under section 5 of the Local Government and Housing Act 1989 to make a report to the authority with the intention that the authority is brought back into compliance.
Leaving aside issues of what the heck the Monitoring Officer could actually do to make the LA change their mind, the “I’m telling on you” playground vibe to it, the issues of conflict that this throws up (a substantial proportion of Monitoring Officers being the Head of the LA legal department) and that none of this is going to be done quickly, this seems very much to me like the Court of Appeal giving the green light to Judges who seek to impose a Care Order with a plan of the child being at home on a Local Authority who’s position is that if a Care Order is made the care plan should be that of separation. How is this not the Court writing their own care plan, and the separation of roles being torn up?
(I happen to think that there might be very good policy reasons for changing the Act so that Courts have that power, but that’s not the way the Act is constructed. This is a power grab, of the kind that the House of Lords kicked into touch with starred care plans.
I do wonder if Neath Port Talbot will appeal that aspect. For my mind, if a Local Authority plan is for placement with mother, then the Court can (though should do so reluctantly) impose a Care Order on them when they asked for a Supervision Order. If the PLAN is separation, then the Court’s power is limited to inviting the LA to change their plan, making an ICO if the case warrants that, or making a Supervision Order. It now seems to be that the Court will simply have the ability to keep the LA in after school until they agree to change their plan.
Of course, being cynical, I have suspected for a while that a consequence of the revised PLO will be more rehabilitation cases which haven’t been properly tested over time, and to avoid rafts of Supervision Orders coming back when they don’t work, the Courts would eventually shift to making Care Orders at home, something most LA’s are very apprehensive about. This paves the way for that.
And I can see some merit in it – if the Court concludes, having done the Re B-S analysis that the risks are manageable at home, but not under a Supervision Order (say that it is obvious that the need for support won’t dissipate after a year, or even 3 years, or there is a need for the LA to share PR) then there will be circumstances in which a Care Order is the better order – notwithstanding that the LA won’t want it, and the parents certainly won’t want it (the Care Order giving the right for the LA to remove the child without going back to Court, that’s no something you want hanging over you). The circumstances in which a Local Authority would not take up the Court’s invitation to change a care plan are fairly limited, it is never something done lightly and is never a decision made by the social worker or manager alone – it goes very high up the chain of command.
Anyway, on to the big bit, which fortunately can be summarised in fairly short order. Underlining is mine, for emphasis
101. The local authority is required to provide the evidence to enable the judge to undertake the welfare and proportionality evaluations. That includes a description of the services that are available and practicable for each placement option and each order being considered by the court. It may be convenient for that to be put into the form of the section 31A care plan in the alternative so that the court may expressly undertake its statutory function to consider the same or in evidence filed in support. There should be no question of an authority declining to file its evidence or proposed plans in response to the court’s evaluations. None of this strays into the impermissible territory of seeking to bind the local authority’s care planning and review processes once a full order is made. If a local authority make it clear that they will not implement a care plan option about which evidence has been given and which the judge prefers on welfare and proportionality grounds, then in a rare case they can be subjected to challenge in the High Court within the proceedings. If and in so far as the local authority are of the opinion that they need to change a care plan option approved by the court once the proceedings are complete, they are entitled to do so and must do so in accordance with the processes laid out in the regulations. If they do so without good reason they will risk an appropriate challenge including on behalf of the child after a referral from an IRO to Cafcass or a Welsh family proceedings officer.
Thus, as well as now having to encapsulate in their final evidence an analysis of the advantages and disadvantages of each possible placement outcome available for the child, the LA have to in effect submit a care plan for each of those options
If the Court give a judgment and ask the LA to file an updated care plan based on those evaluations, the LA must do so.
Those are the two bits that the President endorsed in his brief paragraph, and thus become applicable law to ALL cases, not restricted to this one.
Thus, having rewritten final evidence for cases to include Re B-S compliance, those statements are now going to have to be written again to make them Neath Port Talbot compliant. And if the evidence is already lodged and the parents have responded, how Article 6 compliant is it for the LA to file such vital addendum evidence and the Court move to final hearing without the parents having had opportunity to respond? (I suspect the 26 week target statistics are going to take a nose-dive in the interregnum period)