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W v Neath Port Talbot – Courts, Local Authorities and a Mexican Stand-off

Andrew Pack, care lawyer with Brighton and Hove City Council, considers the options for local authorities in the wake of the Court of Appeal’s landmark judgment in W (A Child) v Neath Port Talbot County Borough Council [2013] EWCA Civ 1227.

The case of W (A Child) v Neath Port Talbot County Borough Council [2013] EWCA Civ 1227 is a very important one for all practitioners in public law cases and particularly for those representing local authorities. It is quite a nuanced judgment, for reasons that will be explained within this article, and it is quite easy to misread it as being an authority for the court having the power to compel a local authority to have a care order at home.

It is not such an authority, and could not be, because the House of Lords (as it then was) squashed any such notion good and proper in In Re S (FC) In Re S and Others In Re W and Others (First Appeal )(FC) In Re W and Others (Second Appeal) (Conjoined Appeals) [2002] UKHL 10, [2002] 1 FLR 815  (the "starred care plan case"). 

[In the rest of this article I shall use the shorthand of Re W (Neath Port Talbot) 2013 and Re W (Care Plan) 2002 as shorthand to refer to each of those two cases.]

In Re W (Care Plan) 2002 Lord Nicholls said:

"23. Two preliminary points can be made at the outset. First, a cardinal principle of the Children Act is that when the court makes a care order it becomes the duty of the local authority designated by the order to receive the child into its care while the order remains in force. So long as the care order is in force the authority has parental responsibility for the child. The authority also has power to decide the extent to which a parent of the child may meet his responsibility for him: section 33. An authority might, for instance, not permit parents to change the school of a child living at home. While a care order is in force the court's powers, under its inherent jurisdiction, are expressly excluded: section 100(2)(c) and (d). Further, the court may not make a contact order, a prohibited steps order or a specific issue order: section 9(1).

24. There are limited exceptions to this principle of non?intervention by the court in the authority's discharge of its parental responsibility for a child in its care under a care order. The court retains jurisdiction to decide disputes about contact with children in care: section 34. The court may discharge a care order, either on an application made for the purpose under section 39 or as a consequence of making a residence order (sections 9(1) and 91(1)). The High Court's judicial review jurisdiction also remains available.

25. These exceptions do not detract significantly from the basic principle. The Act delineated the boundary of responsibility with complete clarity. Where a care order is made the responsibility for the child's care is with the authority rather than the court. The court retains no supervisory role, monitoring the authority's discharge of its responsibilities. That was the intention of Parliament.

....

28. The Children Act, embodying what I have described as a cardinal
principle, represents the assessment made by Parliament of the division of responsibility which would best promote the interests of children within the overall care system. The court operates as the gateway into care, and makes the necessary care order when the threshold conditions are satisfied and the court considers a care order would be in the best interests of the child. That is the responsibility of the court. Thereafter the court has no continuing role in relation to the care order. Then it is the responsibility of the local authority to decide how the child should be cared for.

....

42. I return to the Children Act. I have already noted, as a cardinal
principle of the Act, that the courts are not empowered to intervene in the way local authorities discharge their parental responsibilities under final care orders. Parliament entrusted to local authorities, not the courts, the responsibility for looking after children who are the subject of care orders.
....

44. These are matters for decision by Parliament, not the courts. It is impossible for a court to attempt to evaluate these ramifications or assess what would be the views of Parliament if changes are needed. I echo the wise words of Cooke P in the New Zealand case of R v Stack [1986] 1 NZLR 257, 261?262:

'It would amount to amending the Act by judicial legislation. In a sensitive and controversial field which the New Zealand Parliament may be said to have taken to itself, we do not consider that this court would be justified in such a course. If the Act is to be amended it should be done by Parliament after full consideration of the arguments of policy.'"

None of the issues raised in Re W (Neath Port Talbot) 2013 in any way diminish the decisions and conclusions of the House of Lords in Re W (Care Plan) 2002 – a fact acknowledged by the Court of Appeal itself. 

The Court of Appeal freely acknowledged that it cannot go behind the House of Lords' decision – instead the Court has taken a very careful and precise walk around the case.

It is long-established law that a court can invite a local authority to reconsider its care plan. The Court of Appeal has re-emphasised that it would be very sensible for a local authority to take such a request very seriously and to consider it carefully.

It would be a foolish local authority indeed which responds to the firm view expressed by a judge that a care order is what is needed by dismissing the request without a great deal of agonising and careful scrutiny.  Nothing in this article should be interpreted in any way as an incitement to defiance of that sort – it is rather that Re W (Neath Port Talbot) 2013 has set out what the court's options are should it wish to escalate this Mexican stand-off, and this article simply sets out what the local authority's options might be, if they are minded to escalate the Mexican stand-off rather than blink and surrender.

There will be a great many cases, as the Court of Appeal has highlighted, where that healthy dialogue between judge and local authority results in an accord being reached. We are dealing here with only the exceptional cases where agreement cannot be reached for whatever reason.

Re W (Neath Port Talbot) 2013 neglects the actual process but, in effect, what happens is that the "nominated officer" of the Local Authority (usually a fourth tier manager, perhaps even an Assistant Director or Director) is bound by law and the requirements of regulation 18 of the Care Planning, Placement and Case Review (England) Regulations 2010.

"(2) Before approving a decision under paragraph (1), the nominated officer must be satisfied that-
(a) the requirements of regulation 9(1)(b)(i) have been complied with,
(b) the requirements of regulation 17 have been complied with,
(c) the placement will safeguard and promote C's welfare, and
(d) the IRO has been consulted."

[emboldening for emphasis is that of the author]

It is important to note, therefore, that the decision to have a care plan of care order at home does not rest with the social worker, or the social worker's line manager, but with that nominated officer. He or she has to be satisfied. 

Why is this such a drama? Well, whilst care orders at home are probably in the second tier of awful outcomes for a parent (at least the child is at home, but there is a sword of Damocles hanging over the parents for the next ten years, as well as social workers who can boss them about and tell them what to do), they may in some cases be the most appealing outcome for a judge or a guardian. However, they are always the worst option conceivable for a local authority.

What an unwanted care order at home means for a local authority is that it is in a position where it holds all the risk and responsibility but no power. 

"Reponsibility without power, the prerogative of the eunuch throughout the ages" (Sir Humphrey Appleby)
This is not a minor technical dispute, it goes, as the House of Lords explained, to the very heart of the division of power in the Children Act 1989 – Judges decide facts and make orders, local authorities determine how those orders are to be operated on the ground.

What Re W (Neath Port Talbot) 2013 does is set out what happens after such a request is made, considered and the local authority and the judge remain of different opinions as to what the correct care plan should be.

Here is the route map set out by the Court of Appeal:

  1. The court hears the case.
  2. Judgment is given – the court decides that the best placement for the child is at home, and the judgment makes it plain that the order that the court considers appropriate is a care order, taking into account the principles of the least interventionist order.
  3. The court CANNOT order a care order at home unless there is a care plan to that effect).
  4. The court, having given that very careful judgment, CAN order the local authority to provide an updated care plan, taking into account all of the matters contained within the judgment.
  5. The local authority CANNOT refuse to provide such a plan. Failure to do so is a breach of a court order, with the sanctions available to the court, and the court may make a referral to the local authority's monitoring officer.
  6. If the local authority files its plan, and it is for a supervision order at home, rather than a care order, then the court may deliver a judgment identifying any deficiencies in the plan and why the court considers that the local authority has not properly taken into account the judgment given at point 2. 
  7. If the local authority does not buckle and change its plan at that stage, the court looks meaningfully at the Guardian and says in effect "I've just given a judgment that says the local authority is Wednesbury unreasonable. This court can do no more. Have you ever heard of judicial review?"

That in reality would be a judicial review of the decision of the nominated officer that he or she was not satisfied under regulation 18 that a placement of the child at home under a care order would safeguard and promote the child's interests.

Of course, in a great many cases, the route map ends at stage 4 and never reaches the stage described at 7.

What the judgment in Re W (Neath Port Talbot) 2013 fails to mention is that judicial review is, of course, not instantaneous. The Guardian would need to get funding (good luck with finding any family law firm prepared to use devolved powers on that) and issue the application. Then the Administrative Court whirs into action (eventually).

What happens to the family case in the meantime?  There is a reason why Re W (Neath Port Talbot) is silent on that, and it is because it is deeply problematic.

(A) The court CANNOT make a care order – because it does not approve the care plan, and cannot compel the care plan it wants, hence the suggestion of judicial review.  If it makes a care order, it is on the local authority's care plan. 

(B) The court CANNOT make a supervision order – if it does, the case concludes, the Guardian is functus (and thus can't apply for judicial review) and more importantly there are no live proceedings in which the care plan can be amended. 

(C) The court CANNOT make an interim care order with its preferred care plan (see A above).

(D) The court can only make an interim care order with the local authority's plan, which will be for continued separation of the child and family OR make an interim supervision order sending the child at home. 

(E) If it makes the interim supervision order, then by the time the judicial review is heard the local authority will say "well, the case is either working perfectly well under ISOs and you don't need to go to the extreme of a care order" OR "the case has been a disaster and the PLAN of the risk being managed at home is unworkable".

(F) If, on the other hand, it makes the interim care order, then the local authority rubs its hands together and recites this valuable extract from the House of Lords in Re W (Care Plan) 2002, referred to in Re W (Neath Port Talbot) 2013:

"It is important to recollect in this context that it is not appropriate to use continuing interim care orders to supervise the role of the local authority and subject only to intended legislation and existing Rules and Practice Directions relating to timetabling,Lord Nicholls approach in Re S; Re W remains good:

'[90] From a reading of s 38 as a whole, it is abundantly clear that the purpose of an interim care order, so far as is presently material, is to enable the court to safeguard the welfare of a child until such time as the court is in a position to decide whether or not it is in the best interests of the child to make a care order. When that time arrives depends on the  circumstances of the case and is a matter for the judgment of the trial judge. That is the general, guiding principle. The corollary to this principle is that an interim care order is not intended to be used as a means by which the court may continue to exercise a supervisory role over the local authority.'"

And what of the judicial review option?
As yet, it remains untested. It is clear that the Administrative Court would, if a judicial review were successful, have the power to quash the decision of the nominated officer and refuse to endorse under regulation 18 the placement of the child at home.  But that only puts the decision back for reconsideration and achieves relatively little.

It is LESS clear whether the option of a mandatory order (which the Administrative Court can make, in order to compel the local authority to comply with its statutory duties) is actually a remedy here.  What would be needed would be for the Administrative Court to make a mandatory order that the local authority file and serve in care proceedings a care plan that includes both (a) placement of the child at home and (b) that this be done under a care order.

It is at the very least, arguable as to whether the Administrative Court has this power, and one suspects that the local authority would be inviting the court to look very carefully at the House of Lords' decision in Re W (Care Plan) 2002.

It might well be that such a dilemma could only be finally resolved by the Supreme Court. That in itself raises an interesting legal conundrum – if there is a tension between Re W (Neath Port Talbot) 2013 when pushed to its farthest point and Re W (Care Plan) 2002 which requires the Supreme Court to consider the cases together, since Baroness Hale gave the lead judgment in the Court of Appeal case that was overturned by Re W (Care Plan) 2002, would she have to recuse herself?

In the interests of reinforcing that what is encouraged, promoted and desired is that the local authority takes proper and careful note of the judgment and that a Mexican stand-off does not arise, some of the particular guidance to that effect in Re W (Neath Port Talbot) 2013 is repeated here:

"[T]his court has concluded that although it is for the local authority to decide what services to supply, as a matter of law they must supply sufficient services to prevent the State's intervention becoming disproportionate. The decision about the proportionality of intervention is for the court, the decision about the services which are necessary is for the local authority. Not all services will be practicable and it is for these reasons that the court needs to know what services are practicable in support of each of the placement options and orders that the court may approve and make. A local authority cannot refuse to provide lawful and reasonable services that would be necessary to support the court's decision because it disagrees with the decision or the court's evaluations upon which the decision is based. It should form no part of a local authority's case that the authority declines to consider or ignores the facts and evaluative judgments of the court."

And

"[O]nce the no doubt strong opinions of the parties and the court have been ventilated, it is for the family court to make a decision. That should be respected by the local authority. For the avoidance of doubt, I shall be more plain. If the local authority disagree with the judge's risk evaluation they must in a case where it is wrong appeal it. The appellate court will be able to consider such an appeal, where that is integral to the order or judgment of the court. If the welfare evaluation is not appealed then it stands and the local authority must respect it and work with it while the proceedings are outstanding. To do otherwise risks disproportionate, irrational or otherwise unlawful conduct on their part."

Let's all just try to get along, shall we?

17/11/13