I know, that sounds a lot like one of those questions that you get in newspapers like “Was Ed Milliband responsible for Diana’s death?” in which you read the article and the answer buried towards the bottom is “no”
But I’m not so sure.
In a purely theoretical sense, you MIGHT have a Guardian who disagrees with the Local Authority care plan of rehabilitation to a parent / SGO and who supports a plan of adoption. You MIGHT also have a Judge who disagrees with the LA plan, or more possibly is trying to cut out the stage of the process where there is a decision by the Agency Decision Maker to wait for as to whether adoption is the plan, and wants to have the final hearing without waiting for that.
You MIGHT even have a Local Authority social worker who believes that adoption is the right plan, but is prohibited from applying for a Placement Order because the Agency Decision Maker has said no to adoption or an application for a Placement Order.
In all of those circumstances, I would have said, well hard luck. The Court can only make a Placement Order where there is an application for one, and only the Local Authority can apply, and they can only apply when their Agency Decision Maker authorises it. [I have had each of those hypothetical situations happen, and on each, the Court accepted that there was no power to make a Placement Order without an application]
There’s no such thing as the Court making a Placement Order of their own motion.
That was, until I fell over this clause in the Family Procedure Rules.
4.3( 1) Except where an enactment provides otherwise, the court may exercise its powers on an application or of its own initiative.
So rather than our long tradition of the Court only being able to make orders of its own motion if Parliament expressly gave them that power, we now proceed in the opposite direction – they have the power to do so, unless the statute expressly prohibits it.
And I’ve checked the Adoption and Children Act 2002, and it does not expressly prohibit the Court making a Placement Order of its own motion. Why would it? It was written at a time when if you wanted to give the Court that power, you’d explicitly make the provision.
The Court can only make a Placement Order if satisfied that the test is met (which can just be that threshold is satisfied) and that the parents consent is dispensed with, and of course the making of the Placement Order is subject to the welfare paramountcy principle, the welfare checklist and the no order principle. But it does not say expressly in the Act, only on an application.
s21 2)The court may not make a placement order in respect of a child unless
(a)the child is subject to a care order,
(b)the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or
(c)the child has no parent or guardian.
(3)The court may only make a placement order if, in the case of each parent or guardian of the child, the court is satisfied
(a)that the parent or guardian has consented to the child being placed for adoption with any prospective adopters who may be chosen by the local authority and has not withdrawn the consent, or
(b)that the parents or guardians consent should be dispensed with.
This subsection is subject to section 52 (parental etc. consent).
So, theoretically, a Court could entertain the request of a social worker (acting without ADM approval) or a Guardian, or their own desire, and make a Placement Order even though the Local Authority have not applied, using rule 4.3.
I’m talking purely theoretically here – I strongly suspect that the first Court to attempt this would find themselves in the Court of Appeal as to whether it was article 6 and article 8 compliant to make such a dramatic and serious order without a formal application being before the Court.
Let’s see what else rule 4.3 says:-
(2) Where the court proposes to make an order of its own initiative
(a)it may give any person likely to be affected by the order an opportunity to make representations; and
(b)where it does so it must specify the time by and the manner in which the representations must be made.
(3) Where the court proposes
(a)to make an order of its own initiative; and
(b)to hold a hearing to decide whether to make the order,
it must give each party likely to be affected by the order at least 5 days notice of the hearing.
Well, that’s nice – the Court isn’t actually obliged to tell the parties that it is going to make an order of its own initiative or to have a hearing to hear what the parties have to say about this plan. But if they do decide to have a hearing, they should give the parties notice of that.
You are saying to yourself, well surely that’s not right. The Court would HAVE to tell the parties and listen to their views before making an actual order, as opposed to directions.
(4) The court may make an order of its own initiative without hearing the parties or giving them an opportunity to make representations.
[Although if they do that, the order must say on its face that the parties have the right to apply to vary or set aside the order]
Again, for Placement Orders, this is purely theoretical. If I thought that a Court making a Placement Order without an application for one, at a final hearing, having heard evidence, would end up in the Court of Appeal, the idea that any Court would do so in the absence of a hearing is inconcievable.
[But it is theoretically possible]
This reminds me of my favourite story about the mathematician and logician, Kurt Godel. Kurt Godel basically proved that in any formal system, there will be things that you intuitively know are true but that can’t be proved – on a deep mathematical level there’s a difference between truth and proof. Godel’s Incompleteness Theorum is probably my favourite thing in the world that is not a person or my spaniel.
If you want to know more, read Douglas Hofstadter’s “Godel, Esher, Bach, an eternal golden braid” – but be warned, it took me about five read throughs to have even a vague grasp of the Theorum, and that is an author trying to make it as user-friendly as possible. I dread to think what it is like to read the actual Theorum paper itself cold, with no background knowledge.
In a time of huge upheaval and totalitarian governments in Europe, Godel’s friends convinced him to leave his home country of Austria and come to America. During his immigration interview, the American customs officers asked him why he was leaving his own country. He told them about the oppression and that Austria had become a dictatorship. The customs officer said “Well, thanks to our constitution, that could never happen in America” , and it was at that point that Godel told him of the loophole he had found in the Constitution that could allow just that.
Not the best thing to say to an immigration official, but fortunately Godel’s explanation was so involved and complex that they didn’t follow it and waved him through.
It is also worth remembering that a Placement Order is permissive. It allows the Local Authority to place a child with prospective adopters. It doesn’t mean that they HAVE to. So if a Court did make one against the wishes of the Local Authority, it wouldn’t mean that the child WOULD be placed with prospective adopters.
[It might well make things tough for a Local Authority if a Judge gave a judgment saying that placement with the mother was unsafe and doomed to failure and would be too dangerous for a child, if the LA ignored this and went ahead anyway. That would be a very tough Serious Case Review if it went wrong]
Although in the context of a Placement Order, rule 4.3 is largely theoretical, it might be handy for all sorts of other orders where you realise that you failed to make an application and invite the Court to make the orders of their own motion.
In case you are wondering about Care Orders – I think that the construction of s31, wording underlined, means that Parliament envisaged there being an application made by a Local Authority. Is it expressly forbidding the Court to do it without? No, but it implicitly suggests not, and for a Care Order, suggests that the order can’t be made without an application. [I’d also argue that the s37 provisions are a clear suggestion that a power and boundary as to the circumstances in which the Court could make ICOs without an application have been expressly provided for in the Act]
Care and Supervision
s31 (1)On the application of any local authority or authorised person, the court may make an order
(a)placing the child with respect to whom the application is made in the care of a designated local authority; or
(b)putting him under the supervision of a designated local authority