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“Bring it back” – Courts and care plans that are not working

Andrew Pack, care lawyer with Brighton & Hove City Council, examines the routes available to a local authority to return a case to court if the care plan goes awry.

A situation sometimes arises in care proceedings where the court wants to approve a local authority care plan, but to retain some degree of control or certainty that the plan, as approved, will actually be delivered. 

Handing over the reins entirely to the local authority can make the court apprehensive, particularly in cases where there is an element of speculation that the care plan can be delivered  (for example, searching for a permanent placement for a large sibling group) or where the circumstances of the family may lead to the plan being disrupted  (for example, where it is known that the carers are relatively new or the problems of the children are pronounced and there is a risk of their needs shifting substantially over time).

Starred care plans – their conception and demise
This concern led to the invention by the Court of Appeal of "starred care plans" in the case of Re S & Ors: Re W & Ors sub nom Re W & B (Children): W (Child) (Care Plan) [2001] EWCA Civ 757 where the Court of Appeal considered strongly that there was a duty on both local authorities and Guardians to bring back to court any case where there were failing or shifting care plans.

The Court of Appeal conceived of a system being introduced where the court making a care order could set milestones or 'stars' for key dates by which certain, specified steps were to be accomplished, and insist that if they were not, the local authority must inform the Guardian, so that an application under the Human Rights Act 1998 could be made to court for its consideration.

The House of Lords (as it then was) determined that the Court of Appeal had gone too far and overturned that decision and the 'starred care plan' system in Re S & Ors: Re W & Ors sub nom Re W & B (Children) : W (Child) (Care Plan) [2002] UKHL 10. Their Lordships considered that this system crossed the line between interpretation of the statute and fundamentally altering it, shifting as it did the intention of Parliament that the court should determine whether a care order was made and, where it did, the responsibility of managing the care order lay with the local authority.

The role of the Independent Reviewing Officer
That, in due course, led to the insertion into the Children Act 1989 of section 25B, assigning to the Independent Reviewing Officers the power to refer a child's case (if they consider it appropriate to do so) to CAFCASS. The thinking was that if CAFCASS in turn considered it appropriate, it would launch a free-standing application under section 7 of the Human Rights Act 1998 on the basis that the child's human rights were being breached or potentially being breached.

In practice, this power has never been used. Indeed, Re A, S and Others v Lancashire CC [2012] EWHC 1689 (Fam) involved specific complaint that the Independent Reviewing Officer had not used these provisions to address the problem of two brothers who had been subject to freeing orders but never placed for adoption, so as to remove them from the limbo of being 'statutory orphans'. In that case, the children themselves had to bring the application under section 7 of the Human Rights Act 1998.

If the intended statutory provisions – that is, the local authority has to share with the Independent Reviewing Officer the change in care plan or problems in implementing the care plan; the IRO tells CAFCASS; and CAFCASS makes a section 7 HRA application – are not working in practice, what are the alternatives?

An application to discharge the care order
There is an avenue open to a parent to make an application to court to discharge the care order under section 39 of the Children Act 1989. However, to do so would require the parent to obtain public funding. This would not be on the non-means, non-merits basis of obtaining funding that would be the case in care proceedings initiated by the local authority. 

The decision regarding public funding for a parent to make an application under section 39 would instead be based on the merits of the case, and the Legal Aid Agency (as we must learn to call the former Legal Services Commission) would take into account the prospect of the parent succeeding in that application.  That makes the obtaining of funding more challenging.

This challenge is increased further if the parent is not genuinely anticipating or even desiring the discharge of the care order and return of the children but is instead wanting the court to intervene to either move the approved care plan forward or get that care plan back on track; since the prospect of the court actually granting the order applied for (the discharge of the care order) is remote.

If the Guardian will not make an application to return the case to court, and the parent cannot obtain funding to do so, then only one party remains.

Where the local authority is willing to do so, or even at final hearing wants to give assurances to the court that it will bring the case back to court if the care plan flounders or is altered, is there a legal peg on which it can hang such an application?

Applications available to the local authority
There are a limited number of applications the local authority can make in relation to a child.  Emergency protection orders, education supervision orders and child assessment orders can all be dismissed because they are not pertinent to the issue of a shift in care plan, and the statutory criteria for such an application are unlikely to be met.

That leaves:

  1. An application under section 39 of the Children Act 1989 to discharge the care order.
  2. An application under section 34(4) of the Children Act 1989 for permission to refuse contact between a parent and the child.
  3. The very little used provision of section 39(4) of the Children Act 1989 that where a care order is in force, a person entitled to apply for the order to be discharged may apply for a supervision order to be substituted for the care order.  
  4. Where a placement order is in force, an application to revoke the placement order, pursuant to section 24 of the Adoption and Children Act 2002
  5. An application under section 100 of the Children Act 1989 for the court to use its inherent jurisdiction in relation to the child.

None of these applications is ideal or accords with what the local authority is asking for in reality. If the care plan has gone awry or needs to be changed, what is desired is for the court to look at a fresh care plan and to endorse that. [From the point of view of the parents or child, the desired outcome might well be for the original plan to be reinstated or the revised plan to be rejected, or honed.]

All of these applications are merely devices to have the court look at the change of circumstances, consider the fresh care plan and ideally endorse it, and then either dismiss the application (or grant the local authority leave to withdraw its application).  The essential point is that there has to be some application before the court in order for the court to legitimately consider the case, and the application has to be one which the local authority is entitled to make.

The first three applications have three intrinsic risks. The first is that the parents are given the impression that the local authority might actively be seeking to discharge the care order, vary it to a supervision order or end their contact. The second is that having made the application, the parties and the court are entitled to explore whether it is in fact an application that should be granted (even if the local authority, having applied, doesn't actually seek to persuade the court to grant it). The third is the argument that a party seeking to make an application which it has no intention or desire to achieve might well be in abuse of process.

By contrast, an application for revocation of a placement order, where the plan is changing from adoption to long-term fostering, is a perfectly legitimate course to follow, and one which the local authority could genuinely and actively pursue if the care plan changes in that way.

It may be that, given that there is no other mechanism within the Children Act 1989 which allows for a court to scrutinise a change of care plan and either endorse or reject that change, the inherent jurisdiction approach is the legitimate one.  

The local authority, pursuant to section 100(3), needs leave to be able to make use of the inherent jurisdiction, and the leave test is set out in section 100 (4) of the Children Act 1989.

Section 100 (4) provides:

100 Restrictions on use of wardship jurisdiction.
 (4) The court may only grant leave if it is satisfied that—

(a) the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and
(b) there is reasonable cause to believe that if the court's inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm.

The problem with this restriction is that whilst the leave test set out in section 100(4) (a) is met (that the result sought cannot be achieved by the making of any other order the local authority could apply for), arguing that the second limb of section 100(4)(b) is met puts the local authority in real difficulties, since it would need to persuade the court that the child is likely to suffer significant harm if the inherent jurisdiction is not exercised. 

That implies that the sequence of events since the making of the care order has caused significant harm in terms of uncertainty and doubt that must be resolved, and potentially opens the door to a section 7 Human Rights Act claim against the local authority.

When is a condition in a care order not a condition?
Another approach, albeit a left-field one, is for the court to consider making an order at the time of the care order which would require an application to be made to vary that order if the care plan were to change with failure to do so putting the local authority in breach of the order.

Whilst the court (pace Re S & Ors: Re W & Ors sub nom Re W & B (Children): W (Child) (Care Plan) [2002] UKHL 10) has no jurisdiction to make conditions on a care order and there is no statutory basis for imposing conditions, the court could overcome this restriction by making orders that could only be complied with if the care plan was in effect.

For example, where the approved care plan was for child A and B to be placed together, the court might make a section 34(2) contact order that the local authority facilitate contact between child A and child B in the form of staying contact at least five times per week.

That would mean that if the care plan went along those lines, the contact order would be met as a matter of routine, but if the care plan were to change so that the children would be separated, the local authority would HAVE to come back to court to apply to vary the order under section 34(9), which would give the court the right of scrutiny and approval or otherwise of their change of plan.

With a little creative thought, the use of such rigorous contact orders can be used to provide a bulwark to any change in a care plan and a mechanism for the court having to consider and actively make an order approving any change.

There is no reported authority on a court doing this, but the framework exists for such an order to be made, and it would present a mechanism for ensuring that any change of direction had to be brought back to court, with a clear framework of what the application would be. Obviously, before making such an order, the court would need to be satisfied that making the order was better for the child than making no order and that an analysis of the welfare checklist and paramountcy principle showed that this was the right order to make.

A distinction would probably be drawn between a court using the flexibility of court orders to reinforce a care plan already before it and endorsed, and a court trying to impose its own care plan on a local authority by making a raft of section 34 contact orders which make the local authority's own plan unworkable. One would expect the latter course of action to be the subject of an appeal on the basis that the court has tried to fetter the local authority's care plan.

10/4/13