Court of appeal changes courts` role in care orders (detailed version)

In the cases of Re W and B and Re W, the court of appeal
fundamentally changed the powers of the courts where local
authorities applied for care orders. At the end of care
proceedings, or after a care order, where there is a risk of
European Court of Human Rights being breached, a court can now read
into the Children Act 1989 the power to review progress made by an
authority in carrying out the care plan.

The appeals were brought by the families from Torbay and
Bedfordshire who asserted that if the Children Act 1989 (CA) was
not to be held incompatible with the European Convention on Human
Rights, then existing CA case law had to be modified in order to
achieve compatibility. In the first case much of the promised
support for the mother (adult social worker, family therapy, family
centre involvement, therapy for the mother) had not yet
materialised. In the second case, assessment of the maternal
grandparents had not yet started (due to immigration difficulties),
and the manic depressive mother and emotionally detached father
were not likely to be able to care for them within the next
year.

The key question was how a court could ensure that the
implementation of a care plan by a local authority did not result
in a breach of convention rights. In both cases, the families said
that their local authorities had not executed the care plans
submitted at final hearings.

Granting the appeal in the case of Re W, but dismissing it in
the case of Re W & B, the judges said:

1. Sometimes, the consequences of a court order made conflicted
with the court’s judgement of what would promote the child’s
welfare, and that children especially young children, have found
themselves without a remedy.

2. The care plan was a key document and the power of scrutiny by
the court was lost when a care order was made. Fundamental failures
to execute a plan gave rise to a major sense of injustice, so there
should be an effective remedy against arbitrary and unjustified
decisions. The current routes for challenge are either through a
Human Rights Act 1998 (HRA) challenge or an application under
section 7 of the CA.

What was needed was a combination, and the need for action
should be picked up during the statutory review process – the
question to address was whether or not there was good reason to
believe that convention rights were being broken.

3. The resulting proceedings should be specified proceedings
under s.41 of the 1989 act so that the child could be represented
by a guardian ad litem and should return the court which made the
original order, except where the family proceedings court made the
original order, now returning cases should go straight to the care
centre.

4. The court held that there was no fundamental incompatibility
between the CA and the HRA. Breaches of convention rights could be
avoided by:

(a) The judge being free to defer making a care order until
satisfied that the plans were not uncertain and

(b) Assessment of essential milestones in the care plan, so that
if there were a failure then the local authority was required to
inform the guardian ad litem, so that either the guardian or the
local authority return the matter to the court for directions.

How did the judges come to this conclusion?

The judges examined a great deal of non-judicial material such
as the comments made in May 1997 by the judiciary at the president
(of the Family Division) conference where grave concern was
expressed about what happened after a care order was made, in the
exceptional cases where the continuation of a guardian ad litem was
desirable but not possible. They also considered the comments made
by the previous Lord Chancellor (Lord Mackay of Clashfern) in a
lecture in March 1999 to the National Council for Family
Proceedings, the Review of Child Care Law published in 1985 by HMSO
and some of the cases which have been heard by the European Court
of Human Rights in Strasbourg. They also heard submissions from the
10 barristers appearing before them. What the judges said “was read
by the president (of the family division, Elizabeth Butler-Sloss)
and has her concurrence”.

Clearly the judges had given very careful thought as to what the
future should be, and signalled the possibility of a change in
early May in the case of Re C, where that case was adjourned
pending the outcome of this case.

One of the judges, Lord Justice Sedley has long been an advocate
of change in the law regarding the finality of care orders, which
developed from his chairmanship of the Tyra Henry Inquiry in 1987.
He thought that the need for children to be protected still
remained and was underpinned by the European Convention on Human
Rights.

He firmly rejected the proposition that the court’s role was
merely to scrutinise the care plan. In practice the plan put to the
court may not succeed (for any number of reasons) and then the
court’s intention was frustrated and in such a situation, legality
and proportionality were not being used to rectify the situation –
it could just be left to drift. He thought that the evaporation of
the scrutiny function by the court was not consistent with the
human rights principles enacted in October last year and thus the
situation must change to ensure compliance.

Lord Justice Thorpe was unhappy with the current situation that
the court can only look at the situation once a care order has been
made when a person makes an application. For some children there is
no-one to do this. He thought that this vacuum was deeply
unsatisfactory, and felt that now the responsibility rested on the
courts under articles 6 and 8 of the convention (fair trial and
family life) in cases where needed. He was quick to make it clear
that if there was no prospect of a breach of the convention rights
then the powers did not arise.

Lady Justice Hale (credited with being the author of the
Children Act 1989) took this point up. She said that if a
fundamental element of the care plan meant a real risk of a breach
of a convention right, “it must be justifiable to read into the
Children Act a power in the court to require a report on progress”.
She said that there was nothing in the Children Act stopping this,
but neither was there anything to allow it. Until now the judiciary
has not broadened the scope of the care order, but they must
consider the Human Rights Act and read existing legislation as
compatible wherever possible.

What does this mean for local authorities?

Local authorities now need to read this judgement carefully and
consider their proposals to a care court, in the light of the
powers it now has to review the situation. Although the judges
stressed that this review power should only be used in extreme
situations, it will probably be used to open up the possibility of
the court having an ongoing role in making choices regarding
children whose future is dependent on options provided by local
authorities who “have many demands [placed] upon their
resources”.

There is the prospect of litigation continuing for long periods,
which cannot be consistent with the interests of the children
involved, and the fact that the recent judicial efforts to reduce
the time taken in care proceedings will lengthen. How will the
court system accommodate the additional hearings?

What will happen next?

The ramifications of this case are immense. Although the court
of appeal refused the department of health permission to appeal to
the House of Lords, it is very likely that this matter will go to
the higher court. Lord Justice Thorpe said that “the Lord
Chancellor has approved in principle the creation of an
interdisciplinary structure for the family justice system akin to
the Criminal Justice Consultative Council”, and is about to publish
a consultation document which will contribute to good practice.
That may be so, but fundamentally altering an act of parliament in
a judgement is new ground, even in the field of human rights. Lady
Justice Hale said that “we must beware the temptation to use the
Human Rights Act 1998, and this litigation to find solutions to
problems which raise serious policy issues which are the province
of parliament”. It remains to be seen if parliament will accept the
challenge.

Bernadette Livesey

Human Rights Solicitor

Walker Morris