Judges take a firmer grip of care plans

More confusion, work and delays in implementing care plans may
result from a Court of Appeal decision to give family courts
greater powers, reports Alex Dobson.

Social workers dealing with children and families often suspect
the legal framework within which they operate is far from perfect.
But a landmark decision in the Court of Appeal could mean more
delay and confusion for professionals and families.

The judgement, concerning Torbay and Bedfordshire councils is
the first to connect the “right to a family life”, enshrined within
the Human Rights Act 1998, to the plans drawn up by local
authorities for children at risk.

The Court of Appeal’s decision, which some have hailed as a
rewriting of the Children Act 1989, may yet be subject to a
challenge in the House of Lords. But in practice, it could mean
councils must implement care plans made when a care order is
obtained or face the prospect of being taken to court to explain
why things have gone wrong.

Social workers will, in future, need to alert the court if
planned developments fail to materialise, such as when a planned
family reunion or a scheduled adoption does not go ahead.

The upshot is that judges will in future have much more freedom
to intercede, to demand more information, and in some cases to
refuse to make a care order at all.

While the number of cases directly affected is likely to be
small – some observers suggest as few as 200 per year – there are
likely to be a number of knock-on effects.

Social workers’ time, already in short supply, could be
stretched to breaking point by the demands of a number of complex,
lengthy court cases. And courts, for their part, could choose to
err on the side of caution, resulting in an increased use of
interim care orders.

Jane Held is vice-chairperson of children and family services
for the Association of Directors of Social Services, and director
of social services in Camden. She says: “There could be problems
because there are already long delays in some parts of the country
in the court process. The decision has echoes of the old wardship
jurisdiction of the courts which is something that we moved away
from when the Children Act was passed.”

She says it is crucial to keep the child’s best interests as the
focus and to avoid the sorts of delays that can impact negatively
on a child’s life. “We know that it is essential that we work
quickly. It looks like the effect of the decisions may be to slow
down the system even more.

“One of the impacts could be to take frontline social workers
away from the work they are doing with vulnerable children and
their families.”

According to human rights lawyer Bernadette Livesey, a key issue
will be deciding what amounts to a “fundamental failure” of the
care package. She warns that challenges in future could come from
many sources.

“There are going to be disputes over what is considered to be
important,” she explains. “Aggrieved parents may feel that one
aspect of the care plan is vital, or guardians ad litem may feel
that there are aspects that are essential to its success. The local
authority may take a completely different view, and the child may
take yet another view. All of these people now have an expectation
that they may be able to go back and have the position reviewed,”
she says.

As Livesey points out, this is at odds with the messages from
the Lord Chancellor’s department which has warned that care
proceedings are taking too long, and recommends that decisions
concerning children should be made as quickly as possible.

But others welcome the move. Robert Tapsfield of the Family
Rights Group says that, until now, parents have been unable to
challenge changes to the care plan. To date, their only option has
been to apply for a revocation of the plan.

“They have no rights if the care plan is changed by the council,
or where there is a failure to carry out all or part of the plan,”
he adds. “We welcome any move that allows parents to question how
the lives of their own children are affected by the decisions that
are made.”

Tapsfield argues that, while these decisions seem to be eroding
local authorities’ unfettered discretion under the Children Act, it
is absolutely essential that parents are able to challenge and ask
for a hearing where their views can be heard.

He says that prior to the judgement, where care plans have not
been applied in full because of budget constraints or staffing
shortages, parents had been “denied fundamental rights”.

Lawyers who brought the cases in the Court of Appeal say that
the decisions will concentrate the minds of some local authorities
who until now have been able to drag their feet with impunity.

They suggest, too, that judges are not rewriting the Children
Act, but interpreting the provisions so that they are compatible
with the Human Rights Act 1998 and the UN Convention on the Rights
of the Child.

The changes triggered by the test cases may not be actually
spelt out within the Children Act 1989, but neither are they
prohibited, the lawyers argue, welcoming some degree of return to
the old wardship jurisdiction of the courts.

The judgement also means, they add, that failings that have
become apparent since the arrival of the Children Act can be

The ultimate test of the court cases is whether they will result
in added benefits for children and families, and on that the jury,
if not the judges, are still out.

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