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

In the court of appeal the judges fundamentally changed the
powers of the court at the conclusion of care proceedings. Where
there is a risk of convention rights being breached, a court can
now read into the Children Act 1989 (the CA) the power to review
progress made by the local authority in carrying out the care

In the cases of Re W and B and Re W, involving Torbay and
Bedfordshire councils, appeals were brought by the families who
asserted that if the 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.

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.

1. Granting the appeal in the case of Re W, but dismissing it in
the case of Re W & B, the judges said that 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 make good a plan give 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
under the Human Rights Act 1998 (the HRA) or by an application
under section 7 of the CA. What was needed was a combination of the
two, 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 section 41 of the CA so that the child could be represented
by a guardian ad litem, and should return to the court that 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 would be required
to inform the guardian ad litem and either the guardian (or
CAFCASS) or the local authority would return the matter to the
court for directions.

An appeal to the House of Lords is being considered.

Comment: 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 appeal court judges stressed that this review power should only
be used in extreme situations, it will probably be used to open up
the possibility of courts 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

Bernadette Livesey

Human Rights Solicitor

Walker Morris

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