Tag Archives: care order

A line from Hull to Bristol

Posted on August 9, 2023 by suesspiciousminds

This is a Court of Appeal decision about care orders at home, and the difference in practice and approach in two (not quite halves) parts of the country. I chatted about this on what we now have to call X yesterday and it drew some interest, so I’m doing a post on it.

Basically, the Court of Appeal were considering a case where a Court had made a Care Order and the child was placed at home. They raised within the appeal broader issues of how the issue of Care Orders at home was being dealt with differently based on whether your Court fell North or South of that imaginary line across the country between Hull and Bristol.

The Court of Appeal (or those who decide these things) felt the case was sufficiently important to make it to the judiciary website – it isn’t yet on Bailii

Re JW (Child at Home under Care Order) [2023] EWCA Civ 944

JW (Child at Home under Care Order)  

http://www.judiciary.uk/judgments

For some years it has been recognised that a difference exists in the approach taken by
courts in different regions when determining whether a final care order, supervision
order or no order should be made when care proceedings conclude with a plan for the
subject child to be placed, or remain living, at home with their parent(s). Broadly
speaking, if a line is drawn from Hull down to Bristol and beyond, courts in England
and Wales that are North and West of that line will often make a care order in such
cases, in contrast to courts South and East of the line where normally a supervision
order or no public law order will be made. My experience is that the judges who sit on
one side of the line or the other are confident that the approach taken in their area is the
correct one. The difference of approach is striking, and its existence has become
something of a hot potato, and increasingly so as Family Courts across England and
Wales strive, once again, to conclude public law care proceedings within the statutory
26 week time limit set by Children Act 1989, s 32(1) [‘CA 1989’].

The Court of Appeal go on to say that the last time the issue of Care Orders at home versus Supervision Orders at home was really explored in detail on appeal was in Baker J’s decision of Re DE – a case which really looked at what, from a human rights perspective, the process would be for a Local Authority to use the power under a Care Order to remove and thus disturb the care plan approved by the Court. It isn’t as simple as the LA having the power and using it – they have to follow a careful process and meet tests to ensure fairness, and there’s not an easy method for parents to challenge it – or at least challenge it with lawyers who are being financially recompensed for the work involved.

Re DE looked, at least to a lawyer on the Southern side of that divide, like it was the end of a practice of care orders at home, save in the most exceptional cases. The LA have all of the responsibility but frankly none of the power, and the parents have the spectre of the LA over them until the child is an adult and the fear that the power might be used. It doesn’t seem like an order anyone would want.

But apparently, it was not the end of that practice. My best guess is cases where a Court is worried about a child being at home and dubious about a Supervision Order being enough, but doesn’t feel placement outside the family is justified, reaching for a Care Order as being a middle ground where a greater risk can be managed at home knowing that the LA have statutory responsibilities. I don’t, however, know how that translates into the diffference either side of the Hull-Bristol line.

(The facts of this case were that the parents had 3 children aged 14, 11 and 7. The mother met and married a man named Mr P, who she learned after her marriage had been convicted for possession of indecent images of children – and obviously what an awful thing to learn. She separated from Mr P but there were concerns that she had been allowing him unauthorised contact with the children. If Mr P disappeared from the family life completely then the children would be safe at home, but would that actually happen? The Court made a Care Order for the 3 children with them to remain living with mother, presumably so that the LA could use the Re DE process to remove the children if Mr P was caught having unauthorised contact)

The mother appealed, arguing that rather than make such a draconian order, the Court should have extended the proceedings for fuller assessment of her ability to protect.

This being a judgment led by the President of the Family Division, the law and history of the law about Care Orders versus Supervision Orders is set out clearly and succinctly, and it would be an excellent basis for any lawyer constructing submissions on the point.

The judgment also discusses the Public Law Working Group (PLWG) who considered these issues and provided written guidance, which indicates that:-

‘34. The making of a care order on the basis of a plan for the child to remain in
the care of her parents/carers is a different matter. There should be exceptional
reasons for a court to make a care order on the basis of such a plan.

  1. If the making of a care order is intended to be used [as] a vehicle for the
    provision of support and services, that is wrong. A means/route should be
    devised to provide these necessary support and services without the need to
    make a care order. Consideration should be given to the making of a supervision
    order, which may be an appropriate order to support the reunification of the
    family.
  2. The risks of significant harm to the child are either adjudged to be such that
    the child should be removed from the care of her parents/carers or some lesser
    legal order and regime is required. Any placement with parents under an interim
    or final order should be evidenced to comply with the statutory regulations for
    placement at home.
  3. It should be considered to be rare in the extreme that the risks of significant
    harm to the child are judged to be sufficient to merit the making of a care order
    but, nevertheless, the risks can be managed with a care order being made in
    favour of the local authority with the child remaining in the care of the
    parents/carers. A care order represents a serious intervention by the state in the
    life of the child and in the lives of the parents in terms of their respective ECHR,
    article 8 rights. This can only be justified if it is necessary and proportionate to
    the risks of harm of the child    .’

I would set that out in a table, but I can’t know how to hear any more about tables. *

The Court of Appeal were very mindful of the wider issues in the case, and that it did not sit comfortably that two entirely different philosophical approaches to care orders at home existed in the country and markedly so on geographical lines – the North taking the view that Care Orders at home were part of a judicial toolkit for problem-solving and the South that they were a very serious intervention that would only very rarely be warranted. This needed to be resolved.

  1. 65. The present situation, in which the law is applied in a markedly different manner in two
    halves of England and Wales, cannot continue. There needs to be a common approach
    throughout England and throughout Wales. What that common approach should be has
    been determined through consultation and discussion by the multidisciplinary
    membership of the PLWG. The recommendations at paragraphs 158 to 162, and the
    Best Practice Guidance at paragraphs 34 to 37, of the PLWG March 2021 report, and
    Appendix C of the April 2023 report on supervision orders, which have already had
    extra-curial endorsement, I now formally endorse in a judgment of this court. They
    must be applied in all cases. The approach taken by the PLWG is no more than the
    logical development of the earlier caselaw, once account is taken of the need for
    proportionality and once it is understood that, following Re DE, there are only
    procedural differences between the power of removal where there is a care order or
    where there is none. As Hale J/LJ made plain, it has never been the case that a care
    order should be used as a means to ensure that a local authority meets the duties that it
    has with respect to children in need in its area, nor should it be used to influence the
    deployment of resources.
  2. The PLWG recommendations and guidance can be reduced to the following short
    points:
    a) a care order should not be used solely as a vehicle to achieve the
    provision of support and services after the conclusion of proceedings;
    b) a care order on the basis that the child will be living at home should only
    be made when there are exceptional reasons for doing so. It should be
    rare in the extreme that the risks of significant harm to a child are judged
    to be sufficient to merit the making of a care order but, nevertheless, as
    risks that can be managed with the child remaining in the care of parents;
    c) unless, in an exceptional case, a care order is necessary for the protection
    of the child, some other means of providing support and services must
    be used;
    d) where a child is to be placed at home, the making of a supervision order
    to support reunification may be proportionate;
    e) where a supervision order is being considered, the best practice guidance
    in the PLWG April 2023 report must be applied. In particular the court
    should require the local authority to have a Supervision Support Plan in
    place.
  1. The impact of the requirement for a 26-week timetable and adherence to the PLO mean
    that the decision as to what final order to make may occur at a comparatively early stage
    where a child has been removed from home, but a rehabilitation plan is being implemented. In such cases, there may be grounds for extending the 26-week deadline to some extent, but where, as in the present case, the children are settled at home and what is taking place is the reinforcement and further development of protective measures over an extended period, the court should make a final order rather than contemplating extending the proceedings over an extended or indeterminate period.

The Court granted the appeal (though to make Supervision Orders rather than extend the proceedings.

*TABLES! is a reference to one of my latest obsessions, “I think you should leave” and this sketch below, which yes, i’m just crowbarring in because I love it. Warning, it does contain some strong language, so NSFW

“why was there swearing?”

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Care Orders at home, and abandoning search for missing children

Posted on May 12, 2021 by suesspiciousminds

This is a decision by MacDonald J

Manchester City Council v D (Application for Permission Withdraw Proceedings after Abduction) [2021] EWHC 1191 (Fam) (11 May 2021) (bailii.org)

It was a case where three children who were at home with the parents under Interim Care Orders were removed to Pakistan by their parents, and all efforts to find them have been unsuccessful.

The Local Authority applied for leave to withdraw the care proceedings, and to have the children instead made wards of Court.

The Court noted in passing (but helpfully for my purposes, because it sets out the current judicial thinking on Care Orders at home) that the Guardian in the case had recommended that the children be made the subjects of Care Orders under a care plan of them remaining with the parents.

  1. The Local Authority undertook a comprehensive programme of assessment of the parents. The father was assessed to continue to pose a significant risk to the children in the circumstances I have outlined in the foregoing paragraphs. The assessment of the mother however, was positive. In the circumstances, the local authority’s care plan approaching the conclusion of the care proceedings was for the three children to remain in their mother’s care under a court order, the nature of which was to be determined at the final hearing, the local authority contending that the order should be a supervision order under s.31(1)(b) of the Children Act 1989. Whilst the Children’s Guardian agreed that the children should remain in the care of the mother, she contended that this should be under the auspices of a final care order rather than a supervision order.
  2. I pause to note that the practice of placing children at home under final care orders has recently been the subject of some scrutiny by the Public Law Working Group chaired by Keehan J. That scrutiny has had added significance with respect to cases decided on the Northern Circuit in circumstances where it is said that this Circuit has a higher than average number cases in which the placement of children at home under a care order is the final welfare outcome endorsed by the court. In this context, I note the following important passage from the best practice guidance contained at Appendix F of the final report of the Public Law Working Group published with the imprimatur of the President of the Family Division at the beginning of March 2021:

“Care order on a care plan of the child remaining at home
[33] There may be good reason at the inception of care proceedings for a child to remain in the care of her parents/carers/family members and subject to an ICO pending the completion of assessments.
[34] The making of a care order on the basis of a plan for the child to remain in the care of her parents/carers is a different matter. There should be exceptional reasons for a court to make a care order on the basis of such a plan.
[35] If the making of a care order is intended to be used a vehicle for the provision of support and services, that is wrong. A means/route should be devised to provide these necessary support and services without the need to make a care order. Consideration should be given to the making of a supervision order, which may be an appropriate order to support the reunification of the family.
[36] The risks of significant harm to the child are either adjudged to be such that the child should be removed from the care of her parents/carers or some lesser legal order and regime is required. Any placement with parents under an interim or final order should be evidenced to comply with the statutory regulations for placement at home.
[37] It should be considered to be rare in the extreme that the risks of significant harm to the child are judged to be sufficient to merit the making of a care order but, nevertheless, the risks can be managed with a care order being made in favour of the local authority with the child remaining in the care of the parents/carers. A care order represents a serious intervention by the state in the life of the child and in the lives of the parents in terms of their respective ECHR, article 8 rights. This can only be justified if it is necessary and proportionate to the risks of harm of the child.”

I hadn’t seen this guidance, so it is helpful to have it set out

Message from the President of the Family Division: publication of the President’s Public Law Working Group report | Courts and Tribunals Judiciary

I’ve practiced family law all over the country, and the North West circuit is the only place where I’ve heard of Care Orders with the children at home being anything other than a 1 in every 5 or 6 years phenomenon. Everywhere else, its incredibly rare. I’m not sure why it sprang up as being a solution in the North West and really nowhere else. It leaves families with the threat of the child being removed at any time, and leaves Local Authorities with responsibility for the child and having the repeated issue of ‘is THIS the thing that tips the balance that means that the child is now removed’? (I think it is much better in these situations for it to be a Judge to decide whether or not the child should be placed in foster care)

Onto the broader issue of the case,

  1. in my judgment the chances of securing the return of the children to this jurisdiction in a timescale commensurate with the statutory timescale for proceedings of this nature as set out in s.32(1)(a)(ii) of the Children Act 1989 is low. Whilst the court is able to extend the statutory timescale for care proceedings where necessary to enable the court to resolve the proceedings justly pursuant s.32(5) of the Act, in deciding whether to do so the court is required pursuant to s.32(6) of the Act to take account of any the impact revision to the timetable both on the child and on the duration and conduct of the proceedings. In the current circumstances, any extension would be an extension of unknown duration, with little by way of reliable evidence before the court to suggest a realistic end date. Further, and within this context, whilst the children remain the subject of care proceedings, and the subject of interim care orders pursuant to s.38 of the Children Act 1989, the local authority has statutory duties with respect to them as looked after children pursuant to s.22(1) of the Children Act 1989 and the Care Planning, Placement and Review (England) Regulations 2010. Whilst the children remain outside the jurisdiction the local authority is precluded from discharging effectively those statutory obligations.
  2. It of course remains possible, particularly in light of the developments in the use of remote hearings that have taken place in response to the global COVID-19 pandemic, to deal with the determination of these proceedings by way of remote hearing, at which hearing the parents could attend by video link from Pakistan and Italy respectively. However, whilst superficially attractive, in light of the position adopted by the parents with respect to co-operation with these proceedings I consider it unlikely that the parents would engage with a final hearing. Further, and more fundamentally, in light of the position set out above regarding the current paucity of directly effective reciprocal legal instruments between this jurisdiction and Pakistan, the court must also look to the situation that would pertain at the conclusion of such a remote final hearing. If that hearing resulted, in light of the developments in this case since 3 November 2020 evidencing the mother’s inability to safeguard the children from the risks the father has been assessed to present, in the court considering that the mother could not safely care for the children, the court would be left in the position of making orders that it could not readily enforce. Were the decision to be that the children should remain in the care of their mother, the court would not be able to rely on any plan for supporting the mother and addressing deficits in her capacity to protect the children being implemented. In addition, and importantly, continuing the care proceedings notwithstanding that the children are now in Pakistan, with the attendant focus on the return of the children to this jurisdiction, is likely in my judgment to leave children in state of considerable stress and uncertainty.

In the foregoing circumstances, and notwithstanding the answer that I am satisfied is returned by the applicable principles absent account being taken on the abduction of the children from this jurisdiction, the reality of the situation that now pertains in this case leads me back to the observation by Ward LJ in London Borough of Southwark v B that there is no advantage to any child in being maintained as the subject of proceedings that have become ineffective in result by keeping alive proceedings that have no current efficacy and have lost the momentum derived from the support of the local authority that initiated them. To refuse the application made by the local authority, and supported by the Children’s Guardian, would be to retain public law proceedings before the court during which the local authority could not discharge its statutory duty to the children and following which the court could not enforce any order it considered should be made to safeguard and promote the children’s best interests. Within this context, it is much more difficult to see the relevance of the potential result of continuing the proceedings to the future care plans for the children. Further, the court would be compelling the local authority to engage in proceedings that it no longer seeks to pursue. In these circumstances, it is also far less clear that the time the investigation would take and the likely cost to public funds could be justified.

  1. However, whilst I accept Ms Lennox’s submission that it would be inappropriate to make an order warding each of the children until they reach their respective ages of majority, it is my intention that the children shall remain wards of this court for a further period. The evidence before the court is that the GMP continue to investigate this case as a criminal offence of child abduction and are still working with Interpol and the authorities in Pakistan in that regard. Whilst satisfied that the timescales of that investigation are, on the evidence before the court, out with those of the care proceedings, I am satisfied that whilst these criminal investigations continue it is in each of the children’s best interests that they remain wards of this court, in order that the court can intervene quickly with respect to their welfare should the criminal investigation be brought to a successful conclusion. In light of the timescales contemplated by GMP I am satisfied that in the first instance the wardship proceedings should be listed for a further review in six months’ time. At that point, further consideration can be given by the court to whether those proceedings should continue or should also be brought to a conclusion, having regard to any further progress made by GMP in the criminal investigation in concert with Interpol and the authorities and the police in Pakistan.
  2. In conclusion, I grant the local authority permission to withdraw the care proceedings in respect of the children. The children will however, continue to be wards of this court. I will list the wardship proceedings for review in six months’ time, at which review the court will give further consideration to the progress of the criminal investigation by GMP, in concert with Interpol, into the parents abduction of the children from this jurisdiction and determine whether it is appropriate for the children to remain wards of court at that juncture.
  3. Finally, I wish to make abundantly clear that my decision in this case has been reached on its own very particular facts. My decision should in no way be taken to represent acquiescence by the court in the face of the actions taken by the parents in this case, as an acceptance of those actions or to suggests that parents involved in care proceedings can avoid those proceedings by removing their child from the jurisdiction of the court.
  4. To the contrary, parents who abduct children as a means of avoiding local authority involvement with those children or during the course of subsequent care proceedings can expect the court to bring to bear the full weight of the law in seeking the return of those children to this jurisdiction, and to continue in that effort until all legal avenues have been exhausted. A case in point is the decision of this court in Re K (Wardship: Without Notice Return Order) [2017] 2 FLR 901, in which this court ordered the return of the children to this jurisdiction some five years after they had been abducted by their mother as a means of avoiding local authority involvement with the children’s welfare. The courts of this jurisdiction will pursue all reasonable measures to ensure that subject children abducted by their parents or relatives during the course of care proceedings are returned to this jurisdiction.
  5. Within that context, I direct that a copy of this judgment be sent to the Greater Manchester Police and I give permission to the Greater Manchester Police to disclose the judgment to Interpol and to the authorities in Pakistan with whom the Greater Manchester Police are co-operating with respect to their ongoing criminal investigation into the abduction of the children.
  6. That is my judgment.

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Everyone really ought to read Re D

Posted on November 3, 2014 by suesspiciousminds

 

I had meant to write about this over the weekend, but the Muse just never came to me.

 

Re D 2014

 

Click to access re-child-d.pdf

Please read Allan’s excellent piece here

If the State wants to take your child, be prepared to represent yourself!

 

Basically it is a judgment by the President, building on Q v Q, and also the decision of Baker J in Re D.  The case involved a child who was at home with parents under a Care Order – the LA felt it had gone wrong and removed the child. Baker J heard a case where the parents (the father lacked capacity) wanted to challenge that, and the only option seemed to be an application to Discharge the Care Order. Baker J found that the other option is an application under the Human Rights Act.

The parents did not qualify for legal aid as a result of LASPO, and thus were represented by counsel acting for free. Not ideal, because that is dependent on a man with learning difficulties (a) KNOWING that there’s something he can do and what it is and (b) convincing a lawyer to do the case for free for him.

 

Deep breath.

 

Next, what happened was that the Local Authority decided that they were not going to rehabilitate the child to the parents care and a Judge agreed. Due to the age of the child, the alternative plan was adoption. The Local Authority applied for a Placement Order, which authorises the child to be placed for adoption.

 

You will recall all of the Court of Appeal decisions this last year about how serious an order adoption is, so of course, if a parent is facing a plan to adopt their child, they get free legal advice and representation to fight the case, right?

 

Wrong.

 

IF THE PLACEMENT ORDER application happens WITHIN care proceedings, the parent has free legal advice and representation to fight the case. BUT, if the Placement Order is a stand-alone application (i.e the Care Order has already been made) then they do not qualify automatically for legal aid.

 

Instead they rely on the Legal Aid Agency deciding that their case is exceptional and that their human rights would be breached if they were not represented.  That’s the s10 LASPO powers that the LAA repeatedly fail to use, even when Judges tell them that if it is not used in a particular case it would breach the parents article 6 rights.

 

Even worse than that, because the father had no capacity, the Official Solicitor has to be invited to represent him. Without public funding, the Official Solicitor is potentially exposed to any costs order. So, in this case, the lawyers representing father (who, remember, aren’t earning a penny out of the case) had to give the Official Solicitor an INDEMNITY  – a legally binding promise that if the Court eventually made a costs order against the father that the other sides costs be paid, those would be met by the lawyers out of their own pockets rather than by the Official Solicitor.

 

If you think that it might be tricky to find a lawyer to represent you for no payment, it is, but it is possible. But I’ve never heard before of a lawyer representing someone for no payment who also took on a financial risk of paying the other sides costs. These were extraordinary people.

 

So, the case got before the President, it being one of those case post Q v Q, where the Court might consider who should pay for the parents legal costs.

 

The judgment DOES NOT deal with the merits of the case, or why the child was removed, or whether adoption is right or wrong – it is purely dealing with whether a system that simultaneously says “Adoption is the most draconian order available in the law” and “you can’t have a lawyer to fight it, even if you can’t read” is a fair system.

 

In the circumstances as I have described them, the parents’ predicament is stark, indeed shocking, a word which I use advisedly but without hesitation.

31. Stripping all this down to essentials, what do the circumstances reveal?

i) The parents are facing, and facing because of a decision taken by an agent of the State, the local authority, the permanent loss of their child. What can be worse for a parent?

ii) The parents, because of their own problems, are quite unable to represent themselves: the mother as a matter of fact, the father both as a matter of fact and as a matter of law.

iii) The parents lack the financial resources to pay for legal representation.

iv) In these circumstances it is unthinkable that the parents should have to face the local authority’s application without proper representation. To require them to do so would be unconscionable; it would be unjust; it would involve a breach of their rights under Articles 6 and 8 of the Convention; it would be a denial of justice.

(v) If his parents are not properly represented, D will also be prejudiced. He is entitled to a fair trial; he will not have a fair trial if his parents do not, for any distortion of the process may distort the outcome. Moreover, he is entitled to an appropriately speedy trial, for section 1(2) of the 1989 Act and section 1(3) of the 2002 Act both enjoin the court to bear in mind that in general any delay in coming to a decision is likely to prejudice the child’s welfare. So delay in arranging for the parents’ representation is likely to prejudice the child. Putting the point more generally, the court in a case such as this is faced with an inescapable, and in truth insoluble, tension between having to do justice to both the parents and the child, when at best it can do justice only to one and not the other and, at worst, and more probably, end up doing justice to neither.

vi) Thus far the State has simply washed its hands of the problem, leaving the solution to the problem which the State itself has created – for the State has brought the proceedings but declined all responsibility for ensuring that the parents are able to participate effectively in the proceedings it has brought – to the goodwill, the charity, of the legal profession. This is, it might be thought, both unprincipled and unconscionable. Why should the State leave it to private individuals to ensure that the State is not in breach of the State’s – the United Kingdom’s – obligations under the Convention? As Baker J said in the passage I have already quoted, “It is unfair that legal representation in these vital cases is only available if the lawyers agree to work for nothing.”

 

The President very neatly identifies the problem, but is there a solution?  (well, there’s an immediate one – declare s10 LASPO incompatible with article 6 – it is not being implemented as it is written, and in any practical sense it is now incompatible. Also the schedule in LASPO that does not provide for Placement Orders to attract non-means non-merit funding is incompatible with article 6)

 

We’re not going down that route yet though. Instead, the President keeps inviting the knuckle-heads who have got us into this mess to come up with a solution.

 

 

  • What then is the appropriate way forward?
  • If legal aid is not available for the parents then I need to explore whether there is some other public pocket to which the court can have resort to avoid the problem. There are, in theory, three other possible sources of public funding. As I said in

 

  1. Q v Q [2014] EWFC 7, para 18:

“In a public law case where the proceedings are brought by a local authority, one can see a possible argument that failing all else the local authority should have to pay. In a case … where one party is publicly funded … it is, I suppose, arguable that, if this is the only way of achieving a just trial, the costs of the proceedings should be thrown on the party which is in receipt of public funds. It is arguable that, failing all else, and bearing in mind that the court is itself a public authority subject to the duty to act in a Convention compliant way, if there is no other way of achieving a just and fair hearing, then the court must itself assume the financial burden, as for example the court does in certain circumstances in funding the cost of interpreters.”

I continued (para 19):

“May I be very clear? I am merely identifying possible arguments. None of these arguments may in the event withstand scrutiny. Each may dissolve as a mirage. But it seems to me that these are matters which required to be investigated”.

The need for such investigation in the present case is, if anything, even more pressing than in

Q v Q.

I have accordingly directed that there be a further hearing at which, assuming that the parents still do not have legal aid, I shall decide whether or not their costs are to be funded by one, or some, or all of (listing them in no particular order) the local authority, as the public authority bringing the proceedings, the legal aid fund, on the basis that D’s own interests require an end to the delay and a process which is just and Convention compliant, or Her Majesty’s Courts and Tribunals Service, on the basis that the court is a public authority required to act in a Convention compliant manner.

Copies of this judgment, and of the order I made following the hearing on 8 October 2014, will accordingly be sent to the Lord Chancellor, the Legal Aid Agency, Her Majesty’s Courts and Tribunals Service and the Association of Directors of Children’s Services, inviting each of them to intervene in the proceedings to make such submissions as they may think appropriate. If they choose not to intervene, I shall proceed on the basis of the conclusions expressed in this judgment, in particular as I have set them out in paragraph 31.

In the meantime, bear in mind that any plan of the child being at home with a parent, or with a relative under a Care Order carries huge risks for all involved.

The parent may find themselves, if all goes wrong, faced with a removal that they haven’t got legal aid to fight, and a Placement Order application that they haven’t got legal aid to fight.

And a Local Authority may find themselves, depending on the outcome of the next stage, facing the prospect of paying parents lawyers to litigate against them in a future application for a Placement Order if it all goes wrong.

[I have a loophole solution to this, which I am happy to share with any lawyer who contacts me – I’m not going to put the solution up online to tip off the LAA as to the loophole though]

 

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An answer to an important question you didn’t know you had

Posted on June 4, 2014 by suesspiciousminds

 

 

 

The High Court in Re A Father v SBC 2014 have answered a very important question, albeit one that probably hadn’t fluttered across most people’s consciousness

If a child is at home under a Care Order, and the Local Authority want to use their powers to remove, can the parents obtain a s8 Human Rights Act injunction to stop them?

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/6.html

 

[All underlining, as ever, as mine for emphasis]
As the High Court points out, the remedy ordinarily for a parent if the LA want to remove a child once a Care Order has been made is either an application to Discharge the Care Order or a judicial review, neither of which are that easy to get off the ground. And an application to discharge the care order won’t stop the LA removing in the interim.

The parents in this case made their application to discharge the care order, but knowing that the Local Authority proposed to remove the child before the case would be heard also made an application for an injunction under s8 of the Human Rights Act that would have prevented the removal.

They referred to the decision of the Court of Appeal in Re H (Children) 2011, in which a Judge granted an interim care order but ruled that removal of the child under that order would be a breach of the child’s article 8 right to private and family life. The Court of Appeal upheld that and said further that if the Judge had gone on to make the section 8 HRA injunction prohibiting removal there would have been jurisdiction for her to do so. This was, a very short judgment and the s8 HRA issue is dealt with very briefly, and in of course the context in that case that the Judge had already decided that it would be a breach of the child’s human rights to remove the child.

http://www.bailii.org/ew/cases/EWCA/Civ/2011/1009.html
The Court in this case at first instance refused to make the injunction and did not consider that it had jurisdiction to do so, given that the LA were exercising a lawful power.
In his judgment, DJ Goddard recorded that the local authority had confirmed that the situation was not an emergency, although the problems were escalating. The judge continued:

“Father applied to discharge the order of 7th November 2012 and he is entitled to make an application and be heard on it. I do not feel that it is improper of me to give my view on the likelihood of success of this application as it plays on my decision. In my view, it is extremely unlikely that he will succeed to discharge the order.”
The judge then recorded that he had suggested that an injunction was the appropriate remedy and referred to the case or Re H. He then continued

“I am being asked to glean the arguments from Re H and apply them to this situation, to import injunctive relief rights into this case to prevent D being removed tomorrow. I have tremendous sympathy for the parents. D has lived with them since birth, they both have difficulties, and they have received lots of support. They were both properly represented and both have consented to the order of 7th November 2012. They never appealed this order. What I am being asked to do by the father’s solicitor, who argued very strongly for the parents, is to, in effect, go behind that order.
In the absence of the local authority agreeing to give some breathing space and time, I cannot go behind that order. In some ways I wish I had the power to do so. I wish I could persuade the local authority to grant further breathing space as there is no emergency event which has precipitated the local authority wanting to take D tomorrow. They say that the progress they hoped for 15 months ago has just not happened. In the absence of me being able to persuade the local authority to agree to such a window, I cannot grant injunctive relief. There will still be a hearing to deal with the application to discharge. My present view is the father’s application will not be successful.

With a lot of reluctance, I have to dismiss the application for an injunction. I cannot see that I can do anything else. In practice, in accordance with the order of 7th November 2012, and in line with the care plan, D will be removed tomorrow.”

He therefore refused the application for an injunction and also refused an application for permission to appeal. He granted the application for a recovery order under s.50.

On appeal, the High Court, in the form of Baker J, took a different view on the Court’s jurisdiction to make a s8 injunction in these circumstances, and went back to remarks that the House of Lords had made in the notorious ‘starred care plan’ case

It follows therefore, as confirmed by Lord Nicholls of Birkenhead in Re S (Minors) (Care Order: Implementation of Care Plan): Re W (Minors) (Care Order: Adequacy of Care Plan).[2002] UKHL 10 [2002] 1 FLR 815 paragraph 49, that

“if a local authority conducts itself in a manner which infringes the article 8 rights of a parent or child, the court may grant appropriate relief on the application of a victim of the unlawful act.”
It is true that Lord Nicholls added, at paragraph 62:

“one would not expect proceedings to be launched under s.7 of the HRA 1998 until any other appropriate remedial routes have first been explored.”

 

Baker J made it plain that jurisdiction to make a s8 HRA injunction existed and could have been used in this case (pointing out that the other remedial routes theoretically available weren’t appropriate)

 

 

 

In this case I have sympathy for the district judge. It was he, not any of the parties, who first suggested that injunctive relief might be the appropriate remedy. He was then referred to only one case – Re H, supra – which is a brief report of an appeal against a circuit judge’s decision that she did not have jurisdiction to grant an injunction under s.8 HRA to restrain the local authority from removing a child under an interim care order. Before the Court of Appeal, the local authority conceded that the judge had misdirected herself. As a result of that concession, the court did not consider the jurisdiction in any detail. I do not think that the district judge in this case would have derived much assistance from that authority. He was then told that the parties had agreed that there was jurisdiction in the case before him to grant an injunction. Immediately afterwards, however, counsel for the local authority asserted that no injunction should be granted because removing the child would not be unlawful as human rights had been considered at the time the care order was made and upon the making of that order the responsibility for the child was removed from court and placed with the local authority. With respect to counsel then instructed for the local authority, that is not an accurate summary of the law. In fairness, I should record that she too was at a disadvantage having had no notice of an application for an injunction prior to the hearing.

In the circumstances, it was perhaps not surprising that the district judge concluded that he did not have the power to stop the local authority removing D. But in reaching that conclusion, he was in my judgment plainly wrong. He did have the power to grant an injunction, as has been clear since the House of Lords decision in Re S: Re W, supra.

It is extremely unfortunate that he was led into this error because it seems clear that, had he realised that he had the power to grant an injunction, he would have done so. Up to that point, D had always lived with his parents. The local authority had conceded that the circumstances did not amount to an emergency, and the judge said that he wished that he had the power to order the local authority to “give some breathing space and time”.

Baker J also drew together some observations of other Courts on the onerous decision-making process for a Local Authority in this type of situation (see particularly his reference to Re G below)

At paragraph 45 of Re G, Munby J spelt out the local authority’s obligations in clear terms:

“In a case such as this, a local authority, before it can properly arrive at a decision to remove children from their parents, must tell the parents (preferably in writing) precisely what it is proposing to do. It must spell out (again in writing) the reasons why it is proposing to do so. It must spell out precisely (in writing) the factual matters it is relying on. It must give the parents a proper opportunity to answer (either orally and/or in writing as the parents wish) the allegations being made against them. And it must give the parents a proper opportunity (orally and/or in writing as they wish) to make representations as to why the local authority should not take the threatened steps. In short, the local authority must involve the parents properly in the decision-making process. In particular the parents (together with their representatives if they wish to be assisted) should normally be given the opportunity to attend at, and address, any critical meeting at which crucial decisions are to be made.”

 

 

and also brought Re B-S et al to bear on the process – which is something that none of the previous authorities about LA exercising powers under a Care Order had been able to consider, as it hadn’t existed at the time.

 

To my mind, where a care order has been granted on the basis of a care plan providing that the child should remain at home, a local authority considering changing the plan and removing the child permanently from the family is obliged in law to follow the same approach. It must have regard to the fact that permanent placement outside the family is to be preferred only as a last resort where nothing else will do. Before making its decision, it must rigorously analyse all the realistic options, considering the arguments for and against each option. This is an essential process, not only as a matter of good practice, but also because the local authority will inevitably have to demonstrate its analysis in any court proceedings that follow the change of care plan, either on an application for the discharge of the care order or an application for placement order under the Adoption and Children Act 2002. This process of rigorous analysis of all realistic options should be an essential feature of all long-term planning for children. And, as indicated by Munby J in Re G, the local authority must fully involve the parents in its decision-making process.

While this process is being carried out, the child should remain at home under the care order, unless his safety and welfare requires that he be removed immediately. This is the appropriate test when deciding whether the child should be removed under an interim care order, pending determination of an application under s.31 of the Children Act: Re L-A (Children) [2009] EWCA Civ 822. The same test should also apply when a local authority’s decision to remove a child placed at home under a care order has led to an application by the parents to discharge the order and the court has to decide whether the child should be removed pending determination of the discharge application. As set out above, under s.33(4) of the 1989, the local authority may not exercise its powers under a care order to determine how a parent may exercise his or her parental responsibility for the child unless satisfied it is necessary to do so to safeguard or promote the child’s welfare. For a local authority to remove a child in circumstances where its welfare did not require it would be manifestly unlawful and an unjustifiable interference with the family’s Article 8 rights.
In submissions before the district judge, and before this court, it was argued on behalf of the local authority that its removal of D from the family home was lawful simply by reason of the care order. That submission is fundamentally misconceived. The local authority’s removal of the child would only be lawful if necessary to safeguard or promote his welfare. Any other removal, or threatened removal, of the child is prima facie unlawful and an interference of the Article 8 rights of the parents and child. In such circumstances, the parents are entitled to seek an injunction under s.8 of the HRA.

 

A lot of very important stuff there (as you can probably tell, because I’ve underlined nearly all of it)

1. The same threshold that applies to removing a child under an Interim Care Order (that the child’s safety requires immediate separation) applies to removal from home under a Care Order (unless you go through the process below)
2. The LA have to conduct the full-blown Re B-S analysis of the pros and cons of each option
3. The child should stay at home whilst that exercise is carried out – unless his safety requires immediate removal
4. The parents must be fully involved in the assessment and analysis process and their views taken into account – it almost reaches the point, pace Re G, of the LA holding something akin to a Meeting Before Action (how the funding would be triggered to get the parents legal representatives able to attend is a bit tricky)
5. A Court can make a s8 HRA injunction to prevent the removal if the parents challenge the removal and want the status quo to remain pending litigation of a discharge of care order application.

6. We don’t get to this bit just yet, but it is vital – unless the removal is because the child’s safety requires immediate separation, if an injunction is what it will take to make the LA desist from their plan of removal, an injunction SHOULD be made

 

As was pointed out to Baker J, care orders with children at home had been a fairly rare and unusual circumstance, but with these two factors :-

(a) The 26 week deadline meaning that cases are finished at an earlier stage and with residual doubts; and
(b) The Court of Appeal’s decision in Neath Port Talbot

The number of such cases has gone up and is likely to continue to go up. As the number of children at home under Care Orders go up, the number of children whom the Local Authority seek to remove under a Care Order goes up too. So this issue affects more and more children as time passes.

With that in mind then, the High Court gave guidance on how Courts should address such care plans in future (this stuff is HUGE)
To avoid the problems that have arisen in this case, the following measures should be taken in future cases.
(1) In every case where a care order is made on the basis of a care plan providing that a child should live at home with his or her parents, it should be a term of the care plan, and a recital in the care order, that the local authority agrees to give not less than fourteen days notice of a removal of the child, save in an emergency. I consider that fourteen days is an appropriate period, on the one hand to avoid unnecessary delay but, on the other hand, to allow the parents an opportunity to obtain legal advice.

(2) Where a care order has been granted on the basis of a care plan providing that the child should remain at home, a local authority considering changing the plan and removing the child permanently from the family must have regard to the fact that permanent placement outside the family is to be preferred only as a last resort where nothing else will do and must rigorously analyse all the realistic options, considering the arguments for and against each option. Furthermore, it must involve the parents properly in the decision-making process.

(3) In every case where a parent decides to apply to discharge a care order in circumstances where the local authority has given notice of intention to remove a child placed at home under a care order, the parent should consider whether to apply in addition for an injunction under s.8 of the HRA to prevent the local authority from removing the child pending the determination of the discharge application. If the parent decides to apply for an injunction, that application should be issued at the same time as the discharge application.

(4) When a local authority, having given notice of its intention to remove a child placed at home under a care order, is given notice of an application for discharge of the care, the local authority must consider whether the child’s welfare requires his immediate removal. Furthermore, the authority must keep a written record demonstrating that it has considered this question and recording the reasons for its decision. In reaching its decision on this point, the local authority must again inter alia consult with the parents. Any removal of a child in circumstances where the child’s welfare does not require immediate removal, or without proper consideration and consultation, is likely to be an unlawful interference with the Article 8 rights of the parent and child.

(5) On receipt of an application to discharge a care order, where the child has been living at home, the allocation gatekeeper at the designated family centre should check whether it is accompanied by an application under s.8 of HRA and, if not, whether the circumstances might give rise to such an application. This check is needed because, as discussed below, automatic legal aid is not at present available for such applications to discharge a care order, and it is therefore likely that such applications may be made by parents acting in person. In cases where the discharge application is accompanied by an application for an order under s.8 HRA, or the allocation gatekeeper considers that the circumstances might give rise to such an application, he or she should allocate the case as soon as possible to a circuit judge for case management. Any application for an injunction in these circumstances must be listed for an early hearing.

(6) On hearing an application for an injunction under s.8 HRA to restrain a local authority removing a child living at home under a care order pending determination of an application to discharge the care order, the court should normally grant the injunction unless the child’s welfare requires his immediate removal from the family home.

 

(Read the last bit again – the presumption is that the injunction should be granted UNLESS the LA are able to show that circumstances that would justify an immediate removal are made out)

I think that there is an argument that current Care Orders at home ought to be read as though that 14 day notice period save for emergencies is implicit in the care plan, given this authority. In all future cases, it needs to be explicit, and this is an issue that all professionals need to be alive to.
Funding is an issue for parents (compounded in this case because the father had been represented through the Official Solicitor in care proceedings, and thus making a HRA application on his own was clearly something that was beyond him, and he had been fortunate in having lawyers who were prepared to assist him pro-bono whilst waiting for the O/S to pick the case up.

this case has highlighted a further major problem. These parents face the prospect of losing their son permanently. If this prospect had arisen in the context of care proceedings, they would be entitled as of right to non-means tested legal aid. It is difficult to see why similar automatic public funding should not be available where the local authority proposes the removal of a child living at home under a care order and the parents apply to discharge that order and for an interim injunction under s.8 HRA. The justification for automatic public funding in care proceedings is the draconian nature of the order being claimed by the local authority. Where a local authority seeks to remove a child placed at home under a care order, the outcome of the discharge application may be equally draconian. Because this father is working, and earns a very low wage from which he has contributed to the support of his family, he, and possibly the mother, are disqualified from legal aid. Miss Fottrell and Miss Sprinz and their solicitors are at present acting pro bono. It is unfair that legal representation in these vital cases is only available if the lawyers agree to work for nothing.

This problem is compounded in this case because of the learning difficulties of the parties and in particular the father. I have made observations in other cases about the obligation on all professionals in the family justice system to address the particular difficulties experienced by parents suffering from learning difficulties – see Kent CC v A Mother and others [2011] EWHC 402 (Fam) and Wiltshire Council v N [2013] EWHC 3502 (Fam). A parent with learning difficulties who is not entitled to legal aid is at a very great disadvantage when seeking to stop a local authority removing his child.

On the basis of evidence at present available, it seems plain that the father lacks capacity to conduct litigation and therefore needs to be represented by a litigation friend. Such are the demands on the Official Solicitor’s time and resources that there is inevitably a delay in his deciding whether or not to accept instructions, and the fact that the father is not entitled to public funding adds to the complications. In this case, I hope that the Official Solicitor will give urgent consideration to accepting the invitation to act as litigation friend. The current system in which so much of the responsibility for representing parents who lack capacity falls on the shoulders and inadequate resources of the Official Solicitor is nearing breaking point.

I have drawn these concerns to the attention of the President of the Family Division. It may be that he considers that they are of sufficient importance to bring to the attention of the Family Justice Board and others responsible for the family justice system.

 

(As we know, the exceptional circumstances in which funding might be given under LASPO involve cases where failure to provide funding would result in a person’s human rights being breached – the High Court here have set up a situation in which the child’s article 8 rights would be breached, and given illustrations of how vital it is that parents are represented to fight those – as we know from Airey v Ireland, it is not sufficient for the State simply to say that the State has given a person rights, if the person can’t actually access them or exercise them. This is setting up a judicial review for the future, I suspect)

 

A key question here is, where does this leave Neath Port Talbot? If the major feature of a Care Order over a Supervision Order is the power for the LA to remove the child (or that implicit threat) and the power/threat is neutered, what on earth is the value of having a Care Order at home (other than duration – a Care Order can last until the child is 18, whereas a Supervision Order is limited to one year at a time, up to a maximum of three years)

For any Local Authority, they might as well have a Supervision Order and issue fresh care proceedings if they want to remove, as opposed to having a neutered Care Order.

 

An important case – I expect it to feature in the next view from the President.

 

 

 

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“The peril of Auntie Beryl”

Posted on June 3, 2013 by suesspiciousminds

As the 26 week time limit comes upon us (being introduced by Parliament, the President’s revised PLO guidance and behind the scenes pressure on Courts and Local Authorities via the “Stick of Statistics” TM   – not necessarily in that order), I have been musing about the elephant in the room, of what happens when late in the proceedings, the Court is presented with a suitable relative, Auntie Beryl.

 For what it is worth, I think delays in court proceedings are caused by one or more of these things :-

 (a)   Parties (including the LA) being late in filing documents and this having a domino effect

(b)   The expert report being late, and the whole carefully built timetable collapses round people’s ears

(c)   There is a material change in circumstances  (an unexpected dad emerges, or a relationship ends or begins, or someone you thought was going to be fine relapses into drug misuse, or falls pregnant, or has some sort of unpredictable illness or disease)

(d)   A relative comes forward at the eleventh hour and has to be assessed

(e)   The evidence is all ready, but the combination of accommodating social worker, Guardian, expert and more importantly Court time, means that you have to wait 3 months for a hearing

 I think the intention of the revised PLO  (which you can find here http://www.adcs.org.uk/news/revisedplo.html  )   is to try, as much as one can, to eliminate (a) and (b), and the hope is clearly that if you have much crisper and tighter and fewer Court hearings, there will be less backlog and more judicial availability for (e)    – though it would have been nice to see something spelling out exactly what the Court service is going to do about (e)  – save for having Listings offices run by Capita…

 (c )  is probably the stuff that ends up coming into the bracket of exceptional cases that get an extension to the 26 week limit, or at least where this is actively considered.

 So that leaves the elephant in the room, where it looks as though a child MIGHT be able to be placed with a family member, but doing that assessment will take the proceedings outside of the 26 weeks, because the family member has been put forward late on.

 I suspect, and am already seeing this, that the Courts will try to tackle this by very robust directions at early Court hearings, along these lines :-

“The parents shall, by no later than                       , identify in writing to the Local Authority (to be copied to all parties) the names and contact details of any person that they put forward as a potential permanent carer of the child. Any person put forward after that date will ONLY be considered with the leave of the Court and the parent would need to apply to Court for leave for such assessment evidence to be filed and would need to provide VERY cogent reasons as to why they were not put forward within the deadline period set out in this paragraph”

 

 That looks pretty strong, and will no doubt be backed up by the Court leaning forward and stressing to the parents just how important it is to focus their minds right NOW on who might be able to care for the children, if the assessments of them are not positive.

 But, human nature being what it is, at some point, lawyers and parents and Judges will be faced with an Auntie Beryl coming forward at week 18 or 19, when the LA have announced that they won’t be rehabilitating to parents and will be seeking an adoptive placement. Auntie Beryl, on the face of it, seems like she might be suitable – she doesn’t have any convictions, or history of children being removed, or any major health issues, she has a house in which the child could live, and so forth. So there is a positive viability assessment, but still a lot to be done – more than could be done in the time we have left.

 The six million dollar question, which the Court of Appeal will be grappling with pretty quickly after the revised PLO comes into force I suspect, is

 When a parent puts forward a family member late, and the assessment of that family member would push the case outside 26 weeks, what does the Court do?

 

The immediate “26 weeks or bust” approach suggests that the Court will say, “too late, you had your chance, you had the stern warning on day 12 to cough up the names, you can’t leave it until the assessments are in and the LA are talking about adoption”

 So, what happens if they do that?

 For these purposes, we will assume that the assessment of the parents is negative (since if it were positive, there would be no need to delay matters to assess Auntie Beryl) and that we are dealing with a child under six.

 The alternative care plan is therefore adoption. 

Can an application for a Placement Order be made when there is a viable carer who has not been assessed?

 

The Local Authority have a duty, pursuant to section 22(6) of the Children Act 1989

 s22 (6)  Subject to any regulations made by the Secretary of State for the purposes of this subsection, any local authority looking after a child shall make arrangements to enable him to live with—

 (a)  a person falling within subsection(4); or

 (b)  a relative, friend or other person connected with him,

unless that would not be reasonably practicable or consistent with his welfare.

 

The LA can’t, it seems to me, determine that placement with Auntie Beryl isn’t consistent with the child’s welfare if all they have is a positive viability assessment, they have to go on to do something more, EVEN IF the Court has made a Care Order.

 Before the adoption agency can decide that adoption is the plan for the child, and thus make the application for a Placement Order, they have this duty under the Adoption and Children Act 2002

 Section 1 Considerations applying to the exercise of powers

 (4)The court or adoption agency must have regard to the following matters (among others)—

 (f)the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including—

(i)the likelihood of any such relationship continuing and the value to the child of its doing so,

(ii)the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,

(iii)the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.

 

And again, how can the adoption agency decide that Auntie Beryl can’t provide the child with a secure environment if all they have is a positive viability assessment? They have to have a full assessment.

 Thus, even if the Court determined that they were not going to allow time for Auntie Beryl to be assessed, because she has come late into the proceedings, that won’t allow the LA to simply discount her and issue a Placement Order application.

 Unless they have done sufficient to satisfy themselves that Auntie Beryl is NOT suitable, they can’t commit to a plan of adoption and no such plan could be put before the Court. Neither can they commit to “Placement with Auntie Beryl” until they have sufficient information to be satisfied that this has good prospects of success.

 Therefore, the Court cannot have a hearing by week 26 at which a Placement Order could be made.

 

 If the Court can’t consider a Placement Order application, what can it do?

 

The Court would be left, I think, with these three options :-

1. Taking the information that is available about Auntie Beryl and taking a punt on her, by making a Residence Order (or an SGO – but bear in mind that the Court cannot make a Special Guardianship Order without a Special Guardianship report   – and the Court won’t have one of those between week 18 and 26    RE S (A CHILD) NO.2 (2007) [2007] EWCA Civ 90 )

 

2. Adjourning the proceedings in order for a Special Guardianship report to be filed and served, which will push the proceedings outside of 26 weeks.  

 

3. Determining that the Court is in a position to make a Care Order, with the care plan being that the Local Authority will assess Auntie Beryl and the child will remain in foster care pending that assessment.

 

[And of course option 4 of placement with parents, but we are dealing here with those cases where the Court has the material to determine the issue of rehabilitation to parents, since in those cases Auntie Beryl isn’t important]

 

My concern is that option 3, in a post PLO world (and more importantly a world where the Judges know that their performance on timescales is being gathered and measured), becomes superficially attractive. The case concludes, it concludes in time, the Care Order is made, and Auntie Beryl becomes the Local Authority’s problem.

 Of course, it doesn’t actually resolve the future for the child, or end the proceedings with the parents knowing what will happen, and it almost invariably will lead to satellite litigation   (either the assessment of Auntie Beryl is positive, whereupon the LA will want to shed the Care Order and get an SGO or residence order made, OR it is negative, in which case the LA will put the case before their Agency Decision Maker and in due course make an application for a Placement Order)

 The only advantage option 3 has over option 2 is determining the proceedings within a 26 week timetable. There might have to be a judgment that works hard to say that the no delay principle is more important than the no order principle  – but that isn’t the only problem.

 

Get your inchoate, you’ve pulled

 

Is a care plan which at heart is “either this child will be placed with a family member OR adopted, and we don’t yet know which”  actually a legitimate care plan? Is it in fact, an inchoate care plan?

 Inchoate care plans are bad, m’kay? Not good for the Court to hand over the keys to that sparkling vintage E-type Jag to the Local Authority without having a clear idea of where they intend to drive it.

It seems so to me, even on the new Children and Families Bill reworking of care plans as being  “don’t sweat the small stuff”    model

 Section 15 of the draft Children and Families Bill

 

(1) For section 31(3A) of the Children Act 1989 (no care order to be made until court has considered section 31A care plan) substitute—

“(3A) A court deciding whether to make a care order—

(a) is required to consider the permanence provisions of the section  31A plan for the child concerned, but

(b) is not required to consider the remainder of the section 31A  plan, subject to section 34(11).

(3B) For the purposes of subsection (3A), the permanence provisions of a section 31A plan are such of the plan’s provisions setting out the long- term plan for the upbringing of the child concerned as provide for any of the following—

(a) the child to live with any parent of the child’s or with any other  member of, or any friend of, the child’s family;

(b) adoption;

(c) long-term care not within paragraph (a) or (b).

 

And it does not seem to me that even with that more limited scrutiny, a care plan which doesn’t identify whether the plan for the child is to live with a family member or in an adoptive parent, is sufficiently clear.

 Let’s see what the law says about inchoate care plans (underlining mine) and from Re S and others 2002:-

 99. Despite all the inevitable uncertainties, when deciding whether to make a care order the court should normally have before it a care plan which is sufficiently firm and particularised for all concerned to have a reasonably clear picture of the likely way ahead for the child for the foreseeable future. The degree of firmness to be expected, as well as the amount of detail in the plan, will vary from case to case depending on how far the local authority can foresee what will be best for the child at that time. This is necessarily so. But making a care order is always a serious interference in the lives of the child and his parents. Although article 8 contains no explicit procedural requirements, the decision making process leading to a care order must be fair and such as to afford due respect to the interests safeguarded by article 8: seeTP and KM v United Kingdom [2001] 2 FLR 549, 569, paragraph 72. If the parents and the child’s guardian are to have a fair and adequate opportunity to make representations to the court on whether a care order should be made, the care plan must be appropriately specific.

    100. Cases vary so widely that it is impossible to be more precise about the test to be applied by a court when deciding whether to continue interim relief rather than proceed to make a care order. It would be foolish to attempt to be more precise. One further general point may be noted. When postponing a decision on whether to make a care order a court will need to have in mind the general statutory principle that any delay in determining issues relating to a child’s upbringing is likely to prejudice the child’s welfare: section 1(2) of the Children Act.

    101. In the Court of Appeal Thorpe LJ, at paragraph 29, expressed the view that in certain circumstances the judge at the trial should have a ‘wider discretion’ to make an interim care order: ‘where the care plan seems inchoate or where the passage of a relatively brief period seems bound to see the fulfilment of some event or process vital to planning and deciding the future’. In an appropriate case, a judge must be free to defer making a care order until he is satisfied that the way ahead ‘is no longer obscured by an uncertainty that is neither inevitable nor chronic’.

    102. As I see it, the analysis I have set out above adheres faithfully to the scheme of the Children Act and conforms to the procedural requirements of article 8 of the Convention. At the same time it affords trial judges the degree of flexibility Thorpe LJ is rightly concerned they should have. Whether this represents a small shift in emphasis from the existing case law may be a moot point. What is more important is that, in the words of Wall J in Re J, the court must always maintain a proper balance between the need to satisfy itself about the appropriateness of the care plan and the avoidance of ‘over-zealous investigation into matters which are properly within the administrative discretion of the local authority’. This balance is a matter for the good sense of the tribunal, assisted by the advocates appearing before it: see [1994] 1 FLR 253, 262.

 

 It seems very clear to me, that waiting for the assessment of Auntie Beryl removes that obscurity and uncertainty in the case, and that this uncertainty is NEITHER inevitable or chronic – it can be resolved by making a direction for the filing of the report.

So, the revised PLO doesn’t erode this, nor would the introduction of the Children and Families Bill as currently drafted – the Court still have a duty to look at the ‘placement’ aspect of care plans, and it appears very strongly that a care plan that is “either Auntie Beryl OR adoption” is inchoate.

 Well that’s fine, we can just overturn the decision about inchoate care plans, and say that it is fine to have “either or” care plans.  Just let’s not worry about inchoate care plans anymore, we’ll just airbrush the whole concept out. The slight stumbling block there is that the passages above are from the House of Lords, and thus it isn’t open to lower Courts to overturn it.

 Oh-kay, so we are just going to interpret Re S very widely, to mean that a Court can and should think about whether it is right to make a Care Order rather than an interim care order where the care plan is inchoate, BUT it is not a prohibition on making a Care Order where the plan is inchoate, they don’t go that far.

 And, you know, before Re S, the former President (Wall LJ) had made Care Orders in a case where he declared the care plans to be inchoate but still decided that making care orders was the right course of action RE R (MINORS) (CARE PROCEEDINGS: CARE PLAN) (1993) [1994] 2 FCR 136 

 

Although that predates Re S, it was specifically referred to by the House of Lords (though they call it Re J, it is the same case) and endorsed, so it is good law for the proposition that a Court is not BARRED from making a Care Order with an inchoate care plan.   [Or is it? The House of Lords seem to draw a slight distinction between inchoate care plans, and care plans where the future is not certain because there are things which can only be resolved after the care order is made]

 

This is what the House of Lords say about Re R/Re J

 

  97. Frequently the case is on the other side of this somewhat imprecise line. Frequently the uncertainties involved in a care plan will have to be worked out after a care order has been made and while the plan is being implemented. This was so in the case which is the locus classicus on this subject: In re J (Minors)(Care: Care Plan) [1994] 1 FLR 253. There the care plan envisaged placing the children in short-term foster placements for up to a year. Then a final decision would be made on whether to place the children permanently away from the mother. Rehabilitation was not ruled out if the mother showed herself amenable to treatment. Wall J said, at page 265:

‘there are cases (of which this is one) in which the action which requires to be taken in the interests of children necessarily involves steps into the unknown … provided the court is satisfied that the local authority is alert to the difficulties which may arise in the execution of the care plan, the function of the court is not to seek to oversee the plan but to entrust its execution to the local authority.’

In that case the uncertain outcome of the treatment was a matter to be worked out after a care order was made, not before.

 I suspect there may be dancing on the head of a pin to try to make ‘auntie beryl cases’ the Re J style of uncertainty, rather than the Re W style of uncertainty that is neither inevitable nor chronic.

It seems then, that it is POSSIBLE for a Court to make a Care Order, even where the care plan is “either Auntie Beryl OR adoption”  and even though it achieves nothing of value for the child  (since the uncertainty is there, the timing of the assessment and any applications will be no longer controlled by the Court, there will be the inevitable delay of reissuing and listing for the second wave of litigation  – whether that be for SGO or Placement Order application.

 But even more importantly, and from an article 6 point of view – how certain is the Court that the parents  (who would be represented and able to challenge the making of SGO or Placement Orders if the care proceedings continued, under their existing certificates) would get public funding in “stand-alone” applications for an SGO or a Placement Order?

 My reading of the Funding Code  (and I am not a “legal aid” lawyer) suggests that it might well not be a “non-means, non-merits” certificate for a parent faced with an application for Special Guardianship or Placement Order that is a “stand alone” application, rather than one taking place within ongoing care proceedings  -where the public funding, or “legal aid”  is covered by non-means non-merits certificates  – for the uninitiated, “non-means, non-merits” means that a person gets free legal representation in care proceedings by virtue of the sort of proceedings they are NOT based on what money they have (means) or the chances of them being successful (merits) 

 Again, underlining to assist with clarity, mine

 

20.28 Other Public Law Children Cases

1. Other public law children cases are defined in s.2.2 of the Funding Code Criteria. The definition of these proceedings excludes Special Children Act Proceedings and related proceedings. The fact that proceedings involve a local authority and concern the welfare of children will not, of itself justify the grant of Legal Representation. The Standard Criteria and General Funding Code (as varied by s.11 of the Code and including criterion 5.4.5) will apply. The proceedings include:

a) appeals (whether against interim or final orders) made in Special Children Act Proceedings;

b) representation for parties or potential parties to public law Children Act proceedings who do not come within the definition of Special Children Act proceedings in section 2.2 of the Funding Code – this includes a local authority application to extend a supervision order (which is made under Sch.3 of the Children Act 1989);

c)other proceedings under Pt IV or V of the Children Act 1989 (Care and Supervision and Protection of Children);

d) adoption proceedings (including applications for placement orders, unless in the particular circumstances they are related proceedings); and

e) proceedings under the inherent jurisdiction of the High Court in relation to children.

 

(d) seems to me to cover stand alone Placement Order applications, and they would be a matter for the discretion of the Legal Aid Agency  (oh, also, they wouldn’t be a devolved powers application, where the lawyer can just say “yes” and get on with it, it would need to be a full-blown application and waiting for the Legal Aid Agency to say yes or no)

 

Special Guardianship orders as stand-alone would be classed now as private law proceedings, and I think you can guess how the parents funding on that would go

 20.36 A special guardianship order is a private law order and the principles in s.1 of the Children Act 1989 will apply as will the Funding Code criteria in 11.11. This includes the no order principle which will be taken into account when considering prospects of success. Regard will also be had to the report of the local authority prepared in accordance with s.14A of the Children Act 1989 when considering an application for funding. When considering an application for funding to oppose the making of a special guardianship order, the way in which the proposed respondent currently exercises their parental responsibility and how this will be affected by the making of an order will also be considered.

 

 To quickly sum up then :-

 (a ) Declining to extend the timetable to assess Auntie Beryl won’t let the Court go on to determine a Placement Order application

(b) The Local Authority would be legally obliged to assess Auntie Beryl before they could even ask their Agency Decision Maker to make a decision about adoption

(c)  Making a care order with a care plan of “Auntie Beryl OR adoption” is almost certainly inchoate

(d) It almost certainly opens the door to parents to challenge that decision, given what the House of Lords say about inchoate care plans and  specifically “If the parents and the child’s guardian are to have a fair and adequate opportunity to make representations to the court on whether a care order should be made, the care plan must be appropriately specific.”

 

(e) There seems to be a very foreseeable chance that if the Court make the Care Order, the parents may not get the public funding to be represented to subsequently challenge or test any application for SGO or Placement Order, funding that they would have had as of right if the Court had made Interim Care Orders and had the assessment of Auntie Beryl before considering those orders  

 (f) There must be scope for an article 6 claim that losing the ability to be legally represented to challenge whether your child might be adopted PURELY so that the Court could make a care order (on an inchoate care plan) just to satisfy the 26 week criteria is, you know, slightly unfair.

 (g)     Changing this so that it is workable only requires changes to  – a House of Lords decision,  two pieces of Primary legislation (maybe 3, if you just want to allow Courts to make SGOS in cases where they feel it is right without having a full blown SGO report), the private law funding code and the public law funding code. 

 So, job’s a good un.

 [If you are representing someone in a case where the Auntie Beryl issue crops up, “you’re welcome!”  I think the answer for the Court is to identify what issues it would need the LA to deal with in a report on the carer and to get this done as swiftly as is fair and reasonable]

 

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