Lords rejects increased role for courts in care orders

The House of Lords has overturned a court of appeal decision
requiring local authorities to regularly return to court after a
care order has been issued.

The House of Lords told the court of appeal that, by deciding
that the essential milestones of a local authority care plan were
to be elevated to starred status, it had crossed the boundary
between interpreting law and amending it. An interim care order was
not intended to be used as a means for the court to continue
exercising a supervisory role over the local authority’s care of a
child.

In the cases of RE S and Others and RE W and others there were
two appeals (by the secretary of state for health and Bedfordshire
council) concerning the impact of the Human Rights Act 1998 (HRA)
on Parts III and IV of the Children Act 1989 (the act). In May 2001
the court of appeal had introduced a new procedure whereby the
essential milestones of a care plan were to be identified and
elevated to ‘starred status’.

If a starred milestone was not achieved within a reasonable time
then the local authority had to ‘reactivate’ the proceedings. The
mother of one of the children concerned contended that if the act
did not allow the introduction of such a starring system, then the
act was incompatible with Article 6 (right to fair trial) and
Article 8 (right to respect for private and family life) of the
European Convention on Human Rights, enacted into English law by
the HRA.

The House of Lords had no time or sympathy with the approach of
the court of appeal and held that:

(1) It was a fundamental principle of the act that, when a care
order was made, responsibility for the child’s care went to the
designated local authority. The court retained no supervisory role.
This was the clear and stated intention of parliament

(2) Sometimes, local authorities had not discharged their
parental responsibilities well. It was therefore understandable
that the court of appeal had sought some mechanism to improve the
position, but the invention of a starring system was not justified
as a legitimate exercise in interpretation of the Children Act in
accordance with section 3 of the HRA.

The starring system departed substantially from the cardinal
principle of the act, was inconsistent with the scheme of the act,
and constituted an amendment of it

(3) Sections 7 and 8 of the HRA conferred extended powers on the
courts, but the starring system went further than to provide a
judicial remedy to victims of actual or proposed unlawful conduct
by local authorities. It envisaged proceedings against a public
authority, which had acted, or proposed to act unlawfully. The
starring system imposed obligations when there had been no such
finding

(4) The possibility that something might go wrong with the local
authority’s discharge of its responsibilities under the act
resulting in a violation of Article 8 did not mean that the
legislation itself was incompatible with Article 8

(5) The act did comply with Article 6(1), because parents could
apply to the court to discharge the care order. Disputes concerning
decisions of the local authority whilst a care order was in force
attracted the requirements of Article 6, which were satisfied by
judicial review

(6) The purpose of an interim care order was to enable the court
to safeguard the welfare of a child until such time as it was
possible to decide whether or not to make a care order; it was not
intended as a means by which the court could exercise a supervisory
role; and

(7) Once a final care order was made the resolution of
uncertainties was a matter for the local authority. Uncertainty was
to be resolved as far as possible before the court made a care
order, and a period of planned and purposeful delay could be
justified. The court had to be free to defer making a care order
until the way ahead was no longer uncertain.

Bernadette Livesey

Human Rights Solicitor

Walker Morris