Court of appeal promises fundamental review of care orders

The court of appeal gave advance notice that the traditional
boundaries between care orders and interim care orders are to be
reviewed. In the case of Re C, having announced that this bombshell
was coming, the court set aside the judge’s care order and made an
interim care order in the light of the expected decision (please
see two legal updates also dated June 1 for details of the other
case mentioned here).

This has important implications for all local authorities who
commence care proceedings, and expect a care order at the end of
the process, giving them final responsibility for a child committed
to their care. The clear expectation is that the hitherto definite
line between care and interim care orders will become more

The case concerned an unnamed grandfather in dispute with an
unnamed local authority and his eight-year-old grandchild C. The
judge dealing with C’s case had announced his intention to make a
care order on 20 January, but would give his reasons on 12
February. By that time the local authority had amended its plans.
The issue at stake was whether this change meant that the judge
should have re-opened the matter and reconsidered the need for a
final care order.

The two-man court of appeal (Lord Justice Thorpe and Mr Justice
Bell) decided that the sequence of events undermined the foundation
for the care order, but then declined to do more than make an
interim care order because of the forthcoming reserved judgement
expected in the following two weeks, in which there would be a
review of the restrictions placed on a judge’s use of interim care
orders at final hearings. In C’s case, they said that the progress
of the relationship between C and the grandfather should be
assessed by the original court, since there was evidence to say
that he had not been able to look after C.

Comment: It has long been known that the judiciary has been
unhappy with making final care orders and not being able to re-open
proceedings when care plans submitted to them have not been carried
out, have been unsuccessful or have been jeopardised because of the
action or inaction of a party (or the local authority in committing
resources to assist).

Often a judge’s only option at a final hearing has been to make
continuing interim care orders, thus continuing the proceedings.
This has had the effect of lengthening the proceedings, in itself
undesirable, and making children wait longer for final decisions
about their destinations, in or out of the care system. There has
been considerable disquiet voiced by professionals and advocates
for children’s rights about the situation and now it seems that the
court of appeal has decided that enough is enough. The landmark
decision will be eagerly awaited by those who have had reservations
about the current state of affairs and local authorities who may
have their powers decreased.

Bernadette Livesey

Human Rights Solicitor

Walker Morris

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