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A radical rewriting of the Children Act 1989
by the Court of Appeal has been overturned by the House of Lords in
the last fortnight, throwing up questions about the courts’
relationship with councils and looked-after children. The Court of
Appeal had given courts a greater role in overseeing the way social
workers carried out care plans. Under the decision, judges would
have greater scope to make interim, rather than final, care orders,
and the “milestones” of a plan could be “starred”, allowing the
court to revisit the plan if the milestones were not reached. But
the House of Lords said the appeal court had usurped parliament and
gone beyond the court’s constitutional role of interpreting
legislation. The House of Lords did not stop there. It called on
government to deal with the practical and legal problems
highlighted by the appeal court – the feeling that councils were
failing in their parental responsibility to children. While saving
councils from the practical ramifications of the appeal court’s
decision, the House of Lords has said that something still needs to
be done to protect vulnerable children.

Martin Green, chief executive, Counsel
and Care for the Elderly
“There must be clearly defined milestones within care
plans to bring about improvements in the quality of care.

However, there also has to be a degree of
flexibility within the system and, in any event, I simply do not
believe that the courts, whose processes are very protracted and
hugely expensive, are the best places to decide matters relating to
care and welfare.”

Felicity Collier, chief executive,
BAAF Adoption & Fostering
“This landmark judgement confirms the Children Act’s
separation of courts’ and social services departments’ functions.
While the concerns about councils implementing their care plans are
well founded, repeated court referrals could not only distort the
deployment of scarce council resources but also create additional
uncertainty for children. It seems the government has anticipated
Lord Nicholls’ critical comments. We understand it is preparing
amendments to the Adoption and Children Bill to make reviewing
processes much more robust. These changes are a most welcome move
towards safeguarding the human rights of children in care.”

Phil Frampton, national chairperson,
Care Leavers Association
“That the courts feel they have to intervene at all in
care plans is a sad indictment of the government and its
inspectorates. At present, the corporate parenting of children in
care by government and private sector alike is so appalling that a
caring judge would order the children’s removal into safe custody –
but where? The real issue remains whether the government has the
political will to ensure the finances are there for all children in
care to have a decent upbringing.”

Bill Badham, programme manager,
Children’s Society
“Long-term solutions or short-term pragmatism? The Lords
acted wisely in revoking the Court of Appeal ruling, which risked
bringing back the murky days of wardship, when judges might have
100 children as their wards through a rather patriarchal and
differential process. The thorough review recommended by the law
lords indicates that the Children Act can only be as good as
council competence, legal process and available resources.”

Julia Ross, social services director
and primary care trust chief executive, London Borough of Barking
and Dagenham
“The Lords were absolutely right. The notion of courts
regulating starred milestones in care plans is complete nonsense.
Children would not be happy with this either.

Similarly, doctors, for example, are not
regulated over patients’ treatment regimes, so why social workers
or indeed other professions? But there are deeply serious issues
over our ability to fulfil our parental responsibilities to
looked-after children. This issue needs addressing, but not through
the courts.”

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