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Discharge of care order (IRO takes a kicking)

 

One of my commentators asked me this week whether there were many authorities on discharge of Care Orders. I can’t claim any credit for the fact that a case has now turned up.

This is a case decided by a Circuit Judge, so it is not binding authority, but it throws up some interesting issues.  Particularly for, and about, Independent Reviewing Officers.  The judgment is critical of the Local Authority (but more about the systems than the individual worker concerned, though she is named)

 

Re X (Discharge of Care Order) 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B217.html

 

This was the mother’s application to discharge the care order on her son X, who is now 14. That order was made in 2001. Very peculiarly, X was at home with his mother under a Care Order until 2010 (and the removal appeared to have happened following mother’s application to discharge the Care Order then).  X then came into foster care and has been there since then.

 

The mother had care proceedings on two younger siblings of X, concluding with no order in 2012. So those children live with her, there are no statutory orders and they are not open cases to social workers.

In the period since the court made its orders of June and December 2012, D’s two youngest daughters have remained in her care. There has been no statutory involvement from Social Services; it is therefore reasonable for the court to assume that the Local Authority has no concerns about the care provided to them. D, very sadly, has been involved on the periphery of proceedings relating to a number of her grandchildren, at least two of whom have been permanently removed. Her losses have continued, therefore, to be many and great.

 

X has autism, so has significant needs of his own.

 

I’ll do the law Geek bit first.

 

Geek point 1 – scrutiny of care plan

When the Children and Families Act 2014 was a twinkle in the drafter’s eye, there was much talk about changing the Court’s relationship with care plans, reducing the scrutiny of them down to the essential matters – no doubt with the hope that the time spent in Court proceedings micro-managing every aspect of the care plan and litigating about every tiny aspect could be cut out and that would speed things up. The Act duly did include a clause to the effect that the Court was only REQUIRED to look at

section 31 (3B) Children Act 1989

…such of the plans 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).

 

i.e just a flat-out ‘where is the child going to live under this plan’.

 

I haven’t seen that really happen, and also I haven’t seen it appear in any law reports. Until this one

 

Section 31(3)(A) further makes clear that the court must limit its consideration of the prescribed elements of the care plan as to placement, and as the commentary in the Red Book suggests that must necessarily be limited to the form of placement, not the detail of it. I am, however, nonetheless satisfied that, in this case, the court can and must look at the implementation of the plan and its effect on the child in order to complete the welfare evaluation.

 

Which is a really elegant way of saying “The Act says that I’m not REQUIRED to look at the detail of the plan, but to decide the case fairly, I still need to”

 

Geek point 2 – Court keeping hold of the case to hold the LA to account

 

The Guardian in this case told the Court that she did not support the mother’s application to discharge the Care Order, but wanted the Court to adjourn the application, because the LA had made such a mess of things there was little confidence that if left to their own devices without Court scrutiny they would fix things.

It is submitted on the guardian’s behalf that the Local Authority has so failed in its duty as corporate parent to implement the final care plan approved by the court that it should be held to account and its future planning overseen by the court. The guardian urges the court to require the Local Authority to produce an updated plan that is coherent, choate and capable of implementation. The guardian supports the discharge of the Section 34(4) contact order. She does not support the making of a defined contact order in substitution, but invites the court to direct the Local Authority to confirm its commitment to contact at the level of six times a year in its revised plan

 

The Local Authority argued that the Court had no jurisdiction to do that. And if they didn’t use the words ‘smacks of starred care plan’ in their argument, I’d be highly surprised.

The Court accepted that there was no jurisdiction to adjourn the proceedings just to monitor the LA. But did decide that there were some material bits of evidence that were needed before mother’s application could be properly determined.  (so a half-way house). The Judge also ordered, that that evidence should be obtained through an independent social work assessment.

 

Geek point 3 – the legal approach to a discharge of care order

 

The Judge points out that the burden is on the applicant (i.e mother) to show that the order should be discharged

It is for Mother to satisfy the court that there has been a material change of circumstances and X’s welfare requires discharge of the care order.

But then goes on to say that in considering article 8, the Court would have to consider whether it was necessary for the Care Order to remain and to only continue the order if it was proportionate.

 

The court is mindful that Article 6 and Article 8 of the Convention Rights are engaged and that when the court considers the application to discharge the care order, it can only continue the care order if satisfied that the Local Authority’s continued intervention is proportionate

 

Those two things involve some degree of conflict – it seems that the burden is on mother to show that the Care Order should be discharged and simultaneously on the LA to show that it is proportionate for it to continue.

I’ve never seen that argument advanced. It seems in keeping with the spirit of Re B-S (where even if the Court has approved the plan of adoption by making a Placement Order, when the Court is considering making an adoption order, it still has consider whether the plan already approved is necessary and proportionate). But it jibes with a fundamental principle of English law that the burden falls upon the applicant.

I don’t want to say that the Judge is wrong here, and I’m not even sure that she is. I think it is a natural consequence of the need to apply article 8 to any decision made by the Court in family proceedings that the Court need to be satisfied that the interference (even continued interference) by the State in private and family life is proportionate.  I think that she has spotted something clever that I had overlooked.  It made my temples throb a bit to think about it.  I wonder if we will see this revisited.

 

Judicial criticism – LAC reviews

There were major issues in this case. One was that despite the child having been in care since 2010/2011 with a plan of long-term fostering, he was still waiting for a placement. Another was that the therapy and work that he obviously needed still hadn’t materialised.  (And if you are thinking “I bet they made a referral to CAMHS and that was the end of it”, then you are both a hard-bitten cynic and right. )

There was also the issue of contact, particularly contact with his siblings.  And the issue that the LA had basically stopped working with the mother altogether.

She is described as being ‘challenging and forthright’  (which is a bit like those obituaries you see of famous people that say ‘fun loving and gregarious’ when they mean ‘an alcoholic who was exhausting to be around’ or ‘was not one to suffer fools gladly’ to mean ‘was obnoxious and vile to everyone who worked with him’. )

 

 

But let’s quickly look at how little involvement the LA were having with this mother (who lets not forget was SHARING PR for this 14 year old)

It is unusual to come across a case where a mother who continues to share parental responsibility is excluded from the LAC reviews, is not provided with the name of the social worker working directly with the child, is not provided with information about the child’s school, receives no updates of his medical condition and no updates of his work with the therapeutic services. As far as I understand it, she was not even provided with redacted copies of the school reports.

 

Yes, you read that correctly. The LA weren’t even telling the mother the name of the social worker.

The bigger issue, however, with all of these things was, where was the Independent Reviewing Officer in all of this?

I mentioned ‘starred care plans’ earlier – if you are not one of my more breathtakingly beautiful and vivacious readers [translation :- older]  you may not know about starred care plans.  They were a short-lived invention of the Court of Appeal, to deal with the concern that where the Court approves a care plan and makes a Care Order, the LA then go off and run their Care Order and there’s no mechanism to get the case back before the Court to say “hey, they aren’t doing what they promised”.  The House of Lords squashed that mechanism but did say that there ought to be some form of mechanism created by Parliament to address the issue. As a result, Independent Reviewing Officers were created by Parliament – to scrutinise performance of a care plan and also giving them the ability to refer any breach to CAFCASS who could in turn apply to Court.   (Last time I checked, nationally there had been 8 referrrals and 0 court applications, so that’s working well)

 

29. The LAC reviews, whilst being required to consider the plan for permanence, appear to play lip service to the need to achieve this. There is no record of reasoned debate and discussion about the child’s need for permanence or how the plan for permanence might be reviewed and achieved. It is fortuitous that X has been able to remain where he is to date. It may be that he will remain there until he achieves independence. Nonetheless it is regrettable that the Local Authority failed to rigorously pursue suitable alternative long term placements for X or demonstrate a determination and clarity of thought in the allocation of their resources. The LAC review minutes do not demonstrate clear and strategic planning in the search for a family even during the period when the Local Authority knew of the equivocation of the current carers.

  1. It is generally acknowledged that the earlier a child achieves permanence the better. It is all the more important for a child like X, whose needs are necessarily heightened by his family history and his autism. I am advised by the IRO that there are significant resource issues for family finding, and finding long-term foster homes for boys is more difficult than for girls. I note the evidence of the independent reviewing officer, Mr Moore, who indicated that 75% of the children he was responsible for with a plan for long-term fostering were still waiting for a permanent placement more than two years after final order.

 

 

 

and later

  1. At this point, it seems to me appropriate to consider the role of the independent reviewing officer in X’s case. Mr Moore has been the independent reviewing officer for X since July 2012. Graham Moore provided a statement and gave evidence to this court. He is an experienced IRO, having been engaged in that role for the last five years. Before that worked as a Cafcass guardian. The IRO accepted that his role meant that he had responsibility for

    i) providing independent oversight of the Local Authority’s care planii) ensuring that the child’s interests were protected through the care planning process;

    iii) establishing the child’s wishes and feelings.

    The IRO accepted the statutory requirements of the LAC review process and that as IRO he was responsible for setting a remedial timescales where necessary.

  2. Whilst parents do not always attend LAC reviews, a system is generally devised to enable meaningful sharing of information following LAC reviews. Mr Moore told me that he had endeavoured to meet D in order to achieve this, but they had not been able to meet. Regrettably, no other practical system was implemented to enable the sharing of the outcome of the LAC reviews.
  3. The IRO accepted that the statutory guidance is clear; that where a matter is outside the control of a Local Authority, but is impacting on the ability of that Authority to meet the child’s needs the IRO should escalate the issue to ensure the child’s welfare needs are met. In this case the Access to Resources Team (family finding) failed to find a permanent placement for X in circumstances where his carers were clearly equivocal about whether they could offer him permanence. Yet the IRO did not escalate the issue. The IRO’s monitoring of the Local Authority search for a permanent placement principally rested on information provided by the social worker. The Access to resources team did not provide regular updates on the outcome of its searches.
  4. The IRO confirmed in evidence that he could not recall another case where a parent had been totally excluded from the LAC process for two and a half years. He accepted that Mother should have been receiving information from the school and had not received it.
  5. Criticism is made of the IRO for failing to robustly manage the Local Authority’s implementation of the care plan or pursue the requirement for permanence. I have no doubt that Mr Moore is an extremely hardworking and dedicated member of the Independent Review Team and I am saddened to reach the conclusion that, in this case, he failed to bring independent, robust and effective overview of the Local Authority management of the X’s plan.
  6. The independent reviewing officer is intended to be a robust mechanism designed to hold a Local Authority to account in the management of a child’s plan. In this case, the opportunities to impose remedial timescales and to escalate inaction and delay were not taken.

 

 

The ISW

As the LA had not been engaging with mother since X came into care, the Judge had no real evidence about a key facet of the case.  The Judge could see that mother was managing her two children at home with no concerns, she could see that X was still a challenging child with many difficulties, but there was nothing to show whether mother would be able to work with professionals in such a way that X could be cared for at home.

 

Most unusually in this case, however, I have no information at all as to Mother’s engagement with the Authority in consequence of the way in which the Local Authority have managed the plan, and no means of determining Mother’s insight and understanding of X’s changing needs.

 

  1. The court is mindful that Article 6 and Article 8 of the Convention Rights are engaged and that when the court considers the application to discharge the care order, it can only continue the care order if satisfied that the Local Authority’s continued intervention is proportionate. I am concerned that in the context of this application there is a lack of relevant information as to the nature, significance and degree of change made by Mother, and that it will be difficult to conduct the courts assessment fairly and appropriately unless that gap is filled.
  2. In my view, it will be necessary for the court, therefore, to receive some further evidence as to Mother’s ability to engage and work constructively with and to understand and demonstrate insight of the needs of X. Furthermore, the court requires an update from the Local Authority as to:

    i) the implementation of their care plan as to placement, therapy and contact and

    ii) the detail of the services the Local Authority would provide or could provide to support X if he were to return to the mother’s care.

    It is noteworthy that the court directed the Local Authority to provide details of the support services it would put in place if X were to return home by its directions of 4 November 2014. To date the Local Authority has failed to provide the details of those services.

    It seems to me that, absent this evidence, the court will be unable to complete the welfare evaluation. Counsel will need to address me as to the form of the additional evidence. I would be minded to direct the instruction of an independent social worker to complete a piece of work with D within four to six weeks. I am conscious that delay is inimical to X’s welfare and that this court needs to make a determination of the application for discharge as soon as is practicable.

  3. I consider that such an assessment will be necessary to enable the court to complete the welfare evaluation. I am conscious that no Part 25 application was issued, but it is clear to me, having heard the evidence of the mother, of the Local Authority, of the IRO, and of the guardian, that a gap remains.

 

Last minute evidence

 

Just as the parties were about to go into Court on this one, bearing in mind that a major issue was whether X could be found a permanent foster home (and his current carers having been saying that they wanted to foster three children, but if they offered a permanent home for X they could only look after him alone, because of his needs), news came that X’s current carers were willing to offer him a permanent home.

  1. In evidence on Monday, Ms Allen said she had just received confirmation from the team charged with family finding for X, that the carers had now made a firm decision to offer a permanent home to X. I was further told that the Local Authority have made a firm commitment to put resources in place to enable X to remain with his carers permanently as the sole child in their care.
  2. This change in the Local Authority’s case caused some consternation in the mother’s legal team. There had been insufficient time to share this change with the mother or with the children’s guardian before coming into court. I quite appreciate how difficult it is to share updating information in the scramble to get it into court, particularly where you have a judge who requires everyone to be in promptly, but it is most unfortunate that the team charged with family finding left matters so late as to create this difficulty. The mother and the children’s guardian are now perhaps understandably cynical about this new information. For the mother, it appears too little too late, and for the children’s guardian it raises questions about the carer’s motivation.
  3. Ms Little for the Local Authority reassures the court and the parties that the issue is not one of finance for the carers but rather their genuine desire to offer a home for three children rather than limiting themselves to one. The question of their motivation and the basis on which they are now able to offer themselves as permanent carer will no doubt be under review in the days following this hearing.
  4. It is nonetheless clear that, since at least December 2012, the Local Authority have been aware that the current carers were at best equivocal about X remaining with them on a long-term basis. What is not clear is what efforts the Local Authority’s Access to Resources Team made to find a permanent placement for X I am told that two referrals were made to the team, the first being the principal referral and the second an updating referral. Moreover I am told that Ms Allen spoke to the team from time to time and was satisfied that they were alive to his need for placement and knew of X’s placement needs. The searches appear to have been limited to two geographical areas in line with the wishes of X and the location of his current placement and school
  5. I am advised that no financial restraints were imposed on family finding. I am further told that it is, and was, reasonable for the Social Work Team to rely on the Access to Resources Team to progress the search for a long term placement on the basis of the two referrals and that no further prompting or enquiry from the Social Work Team was required.

 

 

There are two other Circuit Judge judmgnets published today in which the LA sought Care Orders with a plan of adoption and the Court instead made orders that the children were returned to the birth families. Not of any great legal significance because they turn on their facts, but I know that many of my readers may be interested in such cases and they may also be a useful mental exercise of whether these cases would have had these outcomes in 2011.

 

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B218.html

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B78.html

 

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Who has the burden of proof?

 

Well, that’s a stupid title for a blog post.  The burden of proof  – whose job it is to prove whether something happened, and whose job it is to persuade the Court to make the order is the applicant. In public law cases, that’s the Local Authority (the social workers).  It isn’t the parents job to prove that they didn’t injure a child, or that the Court should NOT make a Supervision Order. It is well known, and requires no thought or analysis at all by a lawyer – all of us know that already.

There is, of course, a reason why I am asking that question in the title.  It is because a High Court decision has just emerged that makes me call that obvious truism into question.

Here’s the issue – in a case where consideration is being given to a child being removed from a parent under an Interim Care Order, there’s a specific question to be answered. That is, does the child’s safety require immediate removal.  And in deciding whether to make any order at all, the Court has to consider that the child’s welfare is paramount.  So, a Court won’t make an ICO with a plan of removal unless (a) the child’s safety requires immediate removal and (b) the order is the right thing for the child.  The burden of proof would be on the applicant, the social worker.

 

In the case of Re N (A Child: Interim Care Order) 2015 decided by His Honour Judge Bellamy, but sitting in the High Court, here is how the social worker answered those questions.

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/40.html

 

46.         On the key issue of removal, the social worker said that in her opinion ‘N’s immediate safety does not require separation’. On the contrary, she considers that any changes in the current care arrangements ‘will be detrimental to N’s well-being and emotional safety’.

 

So, no the child does not REQUIRE separation as a result of immediate safety risks, and no the child’s removal would not be in the child’s best interests.

 

If the Local Authority case was that the two tests were not satisfied (and that was the evidence given), and the burden of proof falls on them, then the order can’t be made, surely?

Well, that’s why this case is challenging, because the Court DID make the Interim Care Order, did say that that the child’s safety requires immediate separation and did say that separation would be in the child’s best interests.

Hmmm.

Let’s look at this logically. The ultimate decision as to whether the two tests are met is of course the Judge. If the social worker had said “yes, the test is met”, that isn’t the end of it. A Judge can hear all of the evidence and come to a different conclusion.  So, surely the reverse must also apply – if a Judge hears all of the evidence and DOES think that the tests are made out, he or she does not have to accept the evidence given by the social worker as being right, or determinative.

The Judge can, as here, decide that the social worker’s analysis of risk and what is best for the child is wrong.  It would obviously be wrong for a Judge, if they felt that, to simply ignore it and not give their own judgment and reach their own conclusions.

That’s the pro argument for a Judge making an ICO where the LA case hasn’t been made out on their own evidence.

The con argument is that the burden of proof is there for a reason – it is for the LA to prove their case. By the end of their evidence, they ought to be over the line. Yes, a parents evidence might retrieve the situation for the parents case and lead to a decision that the right thing is something else. Or the parents evidence might make the LA’s case even stronger. But by the time the LA close their case, there ought to be enough evidence to say “Yes, looking at everything at this snapshot moment, the tests are made out”.  If the LA case isn’t made out by the time they close the case, and reliance is placed on the later evidence of the other parties, that is smacking of a reversal of the burden of proof.

Otherwise, why have a burden of proof at all? After all, hardly any cases end up exactly 50-50, with the Judge unable to make a decision, with the burden of proof being the final feather that tips the scales.  (The only family case I’ve ever seen like that is the Mostyn J one  A County Council v M and F 2011  https://suesspiciousminds.com/2012/05/04/a-county-council-v-m-and-f-2011/ ) so the burden of proof is more than simply how to settle a tie, it has to be about more, surely?

 

The case here is further complicated, because it wasn’t the Local Authority asking for an Interim Care Order and removal.  It is one of those cases that started as private law proceedings, the Court became increasingly concerned about the child’s well-being  (to be honest, the FACTS of this case probably warrant their own blog post and discussion – in a very short summary, they are about whether the mother had been indoctrinating the child into a form of Jehovah’s Witness belief and practice which was making it impossible for him to have a relationship with his father who did not hold those beliefs – it was an intolerance for non-believers that was the key issue, rather than what the mother and the child were choosing to believe in a positive sense) and made a section 37 direction. And an Interim Care Order with a direction to the Local Authority that the child should be removed and placed in foster care.

That order was the subject of an appeal, and the ICO was stayed pending that appeal. Five months passed, and the LA reported in the section 37, saying that they did not seek removal at an interim stage, but did intend to issue care proceedings. Mother withdrew her appeal.

Care proceedings were issued, and this contested ICO hearing came about as a result of a request from the child’s Guardian.

So, the LA weren’t seeking the ICO, or separation. Although both could only come about as a result of the application that they had lodged for a Care Order.  So, was the burden of proof here on the Local Authority (who had applied for a Care Order) or on the Guardian (who was asking the Court to make an ICO and sanction removal)?  Or was it an application that the Court simply had to hear and determine?  I am honestly a bit legallly stumped on this. My brain says that the legal burden of proof has to be on the party seeking the order, so the Guardian. Just as within care proceedings where the LA is the applicant, a party seeking an adjournment has the burden of proof to persuade the Court to grant the adjournment, even though a formal application might not necessarily be lodged.

An additional complication here was that the LA were saying that not only did they not want an ICO and did not want the power to remove the child, they didn’t intend to exercise that power even if the Court sanctioned it.

In essence, the LA were saying that the religious messages being given to this child were messing him up, but that removing him from mother at an interim stage might mess him up even more. It might make his relationship with his father even more damaged, if he blamed his father for him being taken away from mother and put in foster care.

 

Given that all of this arose from the Judge originally making an ICO and sanctioning a plan of separation, who had the burden of proof for that order?  It seems opaque.  One presumes that the Court was being invited to do this by one of the parties, so the burden would fall upon them. But what if the Court was doing it of their own motion? Then the burden of proof falls upon the Court, who become then both player and referee in the contest.  The section 37 ICO power is a very practical way to allow the Court to intervene to protect a child who seems to be at risk, but as the case law on removal has developed over the years, section 37 ICOs become something of an anomaly. It is very difficult to see how a Court making one of its own motion can avoid a perception that having raised it as a possibility themselves it is then fair to determine an application that they themselves set in motion…

 

The case is complicated STILL FURTHER, because both the LA and the mother indicated that IF the Judge was to make an ICO with a recommendation for removal, in the teeth of the LA saying that they did not want it, they would each appeal.

The Court however felt that the risks did warrant making an ICO and that the child ought to be removed, even if the LA were not willing to do so.

 

I am satisfied that N has suffered emotional harm. The social worker agrees. I am satisfied that the fact that N has been immersed by his mother in her religious beliefs and practices has been a significant factor in causing that emotional harm. The social worker is not convinced. I am satisfied that since the hearing last November N has continued to suffer emotional harm. The social worker agrees though attributes this to the conflict between the parents, not to religious issues. I am satisfied that in the absence of significant change in N’s circumstances there is a risk that he will continue to suffer harm.

  1. Since the shared care order was made N has suffered and continues to suffer significant emotional harm. If the present arrangements continue I am in no doubt that N will continue to suffer that harm. Persisting with the present shared care arrangement is not in his present welfare interests at this moment in time.
  2. I am not persuaded that placement with father is appropriate. For the reasons articulated by the guardian, I accept that the likelihood is that placement in the father’s primary care would have an adverse impact on N’s relationship with his father.
  3. I am satisfied that the change required is that N be removed from the care of his parents and placed with experienced foster carers.
  4. The social worker disagrees. As a result of the position taken by the local authority, if I make an interim care order there is no certainty that the local authority will remove N and place him in foster care. There is no clarity as to the time it will take local authority managers to decide how to respond to an interim care order. If they do not respond positively there could be an impasse between the court and the local authority. For the local authority, Mr Sampson has already indicated that if removal is required he anticipates that the local authority will consider whether there are grounds for appeal. Even if the local authority did not seek leave to appeal, experience suggests that the mother would seek leave. The last time she did so the appeal process took three months. The final hearing of these care proceedings is fixed to take place in mid-August. Against that background, acknowledging the uncertainty about whether an order requiring N’s removal into foster care would be implemented ahead of the final hearing, should the court adopt what might be called the ‘pragmatic’ approach and defer a decision about removal until the final hearing or should the court put that uncertainty to one side and make an order which reflects its assessment of the child-focussed approach required by s.1 of the Children Act 1989?

 

The Judge felt empowered by the remarks of the Court of Appeal in Re W  (the Neath Port Talbot case) in imposing a care plan on a Local Authority who were resistant to it. The Judge concludes that if he makes an ICO with a care plan of removal, the LA’s reaction to it if they disagree must be to appeal and seek a stay NOT to refuse to execute it.   (I think that respectfully, the Judge is wrong there, but I’ll explain why in a moment)

 

         In resolving that issue I derive assistance from the decision of the Court of Appeal in Re W (A Child) v Neath Port Talbot County Borough Council [2013] EWCA Civ 1277. In that case the first instance judge made an assessment of risk which the local authority did not accept. On appeal, the question for the court was whether the judge was wrong to have made a care order on the basis of a care plan with which she did not agree and in the circumstance that the order was opposed by both the local authority and the mother. The leading judgment was given by Lord Justice Ryder. The following passages from his judgment are relevant to the problem which I have identified:

  1. The courts powers extend to making an order other than that asked for by a local authority. The process of deciding what order is necessary involves a value judgment about the proportionality of the State’s intervention to meet the risk against which the court decides there is a need for protection. In that regard, one starts with the court’s findings of fact and moves on to the value judgments that are the welfare evaluation. That evaluation is the court’s not the local authority’s, the guardian’s or indeed any other party’s. It is the function of the court to come to that value judgment. It is simply not open to a local authority within proceedings to decline to accept the court’s evaluation of risk, no matter how much it may disagree with the same. Furthermore, it is that evaluation which will inform the proportionality of the response which the court decides is necessary.
  2. …Parliament has decided that the decision is to be a judicial act and accordingly, the care plan or care plan options filed with the court must be designed to meet the risk identified by the court. It is only by such a process that the court is able to examine the welfare implications of each of the placement options before the court and the benefits and detriments of the same and the proportionality of the orders sought…
  3. …The decision about the proportionality of intervention is for the court…It should form no part of a local authority’s case that the authority declines to consider or ignores the facts and evaluative judgments of the court. While within the process of the court, the State’s agencies are bound by its decisions and must act on them.

 

  1. There is a second issue and that relates to the extent of the court’s power to enforce an interim care order requiring removal in circumstances where the local authority disagrees with that plan and comes to the decision that although it is content to share parental responsibility it is unwilling to remove because, notwithstanding the court’s evaluation, it considers removal to be disproportionate. The law is clear. Although the Family Court dealing with care proceedings can make a care order (whether a final order or an interim order) and express its evaluative judgment that the child should be removed and placed in foster care, it has no power to order removal. If the local authority decides not to remove the child the only mechanism for enforcement of the court’s evaluative judgment is by separate process in the form of judicial review.
  2. On this issue, in Re W (A Child) Ryder LJ makes the following observations:
  3. …once the no doubt strong opinions of the parties and the court have been ventilated, it is for the family court to make a decision. That should be respected by the local authority. For the avoidance of doubt, I shall be more plain. If the local authority disagree with the judge’s risk evaluation they must in a case where it is wrong appeal it. The appellate court will be able to consider such an appeal, where that is integral to the order or judgment of the court. If the welfare evaluation is not appealed then it stands and the local authority must respect it and work with it while the proceedings are outstanding. To do otherwise risks disproportionate, irrational or otherwise unlawful conduct on their part.
  4. There is no purpose in Parliament having decided to give the decision whether to make an order and the duty to consider the basis upon which the order is made to the judge if the local authority that makes the application can simply ignore what the judge has decided and act as if they had made the decision themselves and on a basis that they alone construe.

 

  1. In Re W (A Child) the issues related to a final care order. In this case I am concerned not with a final care order but with an interim care order. Does that make a difference? In my judgment it does not. The observations made by Ryder LJ are equally relevant to interim orders. Parliament has determined that it is for the court and not the local authority to evaluate, on the basis of its assessment of the evidence, whether an interim care order on the basis of removal into foster care is necessary and proportionate. The way to challenge that decision is by appeal and not by decision of senior managers not to remove.

100.     At the hearing in November I came to the clear conclusion that in light of the emotional harm N had suffered and was continuing to suffer it was proportionate and in N’s best welfare interests for him to be removed into foster care under an interim care order. As a result of the mother’s appeal against that order (an appeal which was subsequently withdrawn) N has remained in the care of his parents. Six months later, I find that N has continued and still continues to suffer emotional harm in the care of his parents. I am in no doubt that the child-focussed approach required by s.1 of the Children Act 1989 requires that he be removed from the care of his parents and placed in foster care without further delay. I accept that steps which may now be taken by the local authority and/or the parents may have the effect that my order may not be implemented ahead of the final hearing in August. I am satisfied that that possibility should not deter me from making orders which I consider to be in the best interests of N’s immediate welfare. I shall, therefore, make an interim care order. I make it clear that that order is premised upon an expectation that the local authority will immediately remove N and place him in foster care

 

 

I don’t think that this strong reading of the dynamic between Court and LA  survives either the statute, the House of Lords decision on starred care plans or the President’s own guidance in the Court of Appeal case of Re MN (an adult) 2015 which corrected any misapprehension that might have been caused by Re W a child.   (I have always felt that Re W went far too far with its concept of mexican stand-offs and judicial reviews, and that Re MN puts the relationship between judiciary and Local Authority on care plans in the correct way)

https://suesspiciousminds.com/2015/05/07/mn-adult-2015-court-of-appeal-pronouncements/

 

  • It is the duty of any court hearing an application for a care order carefully to scrutinise the local authority’s care plan and to satisfy itself that the care plan is in the child’s interests. If the court is not satisfied that the care plan is in the best interests of the child, it may refuse to make a care order: see Re T (A Minor) (Care Order: Conditions) [1994] 2 FLR 423. It is important, however, to appreciate the limit of the court’s powers: the only power of the court is either to approve or refuse to approve the care plan put forward by the local authority. The court cannot dictate to the local authority what the care plan is to say. Nor, for reasons already explained, does the High Court have any greater power when exercising its inherent jurisdiction. Thus the court, if it seeks to alter the local authority’s care plan, must achieve its objective by persuasion rather than by compulsion.
  • That said, the court is not obliged to retreat at the first rebuff. It can invite the local authority to reconsider its care plan and, if need be, more than once: see Re X; Barnet London Borough Council v Y and X [2006] 2 FLR 998. How far the court can properly go down this road is a matter of some delicacy and difficulty. There are no fixed and immutable rules. It is impossible to define in the abstract or even to identify with any precision in the particular case the point to which the court can properly press matters but beyond which it cannot properly go. The issue is always one for fine judgment, reflecting sensitivity, realism and an appropriate degree of judicial understanding of what can and cannot sensibly be expected of the local authority.
  • In an appropriate case the court can and must (see In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, para 29):

    “be rigorous in exploring and probing local authority thinking in cases where there is any reason to suspect that resource issues may be affecting the local authority’s thinking.”

    Rigorous probing, searching questions and persuasion are permissible; pressure is not.

 

The Court can, as explained in the next passages of Re MN, give a judgment setting out how they perceive the risks and how they could best be managed, and invite the LA to file a care plan addressing those matters. BUT, if there remains resistance, the Judge cannot compel the LA to remove.  The Court CANNOT dictate to the Local Authority what the care plan is to say.

The division of powers is very plain – the Local Authority CANNOT remove a child unless there is a Court order and the Court decides whether to grant such an order. But the Court cannot impose a removal on a Local Authority who do not want to remove.

Of course, in a very practical sense, a Judge who gives a judgment saying that having heard and tested the evidence, he considers the child to be at danger if the child were not removed, places the LA in a huge predicament. If the Judge is right  on his analysis of risk (and Judges get paid to be right and to analyse risk), and something goes wrong, then the LA will be absolutely butchered at an Ofsted Inspection, a civil claim, a Serious Case Review or heaven forbid, an inquest. It really is an “on their head be it” issue.

It would be a courageous Local Authority who took a judgment forecasting dire consequences for a child and sanctioning removal and decided not to remove. But it has to be their choice. That’s the responsibility that they have.

The LA and mother both said that they would appeal this decision. I would expect that appeal to be successful, based on a reading of Re MN (a child) 2015. However, if the appeal is chaired by Ryder LJ, who had those strong views in Re W that the Court could exert considerable pressure on a LA to change their care plan and woe betide them if they did not,  then I would expect them to lose the appeal.  And frankly, I  personally think that each of the major Appeals on the use or misuse of section 37 ICOs, the Court of Appeal has got each of them badly wrong, so I would not be marching down to the bookies on any prediction.

 

I wonder if the Court of Appeal will clarify the burden of proof issue, or whether it will just get bogged down in who has bigger muscles to flex on care plans, Courts or Directors of Social Services?