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M (A Child) [2009] EWCA Civ 1486

Application for permission to appeal by guardian against a decision by justices to grant an interim care order to the local authority who intended to move the child to alternative foster carers pending a final hearing. Appeal dismissed.

It was common ground that the mother could not care for for the child in question. With the mother's agreement the child had been looked after by a specialist foster carer as part of an assessment. When that came to an end, the local authority instigated care proceedings in the magistrates' court but the guardian disagreed that the child should be moved to alternative foster carers during the proceedings. The justices made the interim court order as they concluded that was the only available option put forward to safeguard the child.

The guardian first appealed to the circuit judge, who was bound to uphold the order in the circumstances. Wall LJ agrees, though declining to consider whether this was a second appeal, because the permission threshold was not reached and the structure of the Children Act, where the court can only decide whether or not to make a care order, meant that the justices and judge had no choice.


Case No: B4/2009/2578

Neutral Citation Number: [2009] EWCA Civ 1486

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday 30th November 2009


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(DAR Transcript of
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Ms Rachel Langdale QC and Ms Lucy Reed (instructed by Mortimers Solicitors) appeared on behalf of the Appellant, a child by her Guardian.

Ms Marie Leslie (instructed by Langley Wellington  Solicitors) appeared on behalf of the First Respondent, the Mother.

Ms Tacey Cronin (instructed by Gloucestershire County Council Legal Department) appeared on behalf of the Second Respondent, the Local Authority.

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(As Approved by the Court)

Crown Copyright©

Lord Justice Wall:

1. This is an interlocutory appeal concerning a little girl called K who was born on 28 June 2008. 

2. I propose to say as little about the merits as possible given that K’s future is still before the courts and this court is dealing with one particular and discrete aspect of her welfare.  It is common ground between the parties that K cannot at this stage live with her mother.  Up until recently she has been accommodated with a specialist foster carer by the local authority with agreement from the mother, and an assessment as I understand it has been carried out with that foster carer as to whether or not mother is capable of caring for the child.  For reasons which do not concern us and into which I do not propose to go, that assessment has come to end and the local authority is of the view that mother simply is not going to be able to care for this child. 

3. Because the accommodation under section 20 as a child in need had come to an end, the local authority took care proceedings before the Justices, and before the Justices the position adopted by the guardian (which, I hasten to add, is a perfectly proper position for the guardian to adopt, indeed she seems to me to be eminently fulfilling her function by adopting it), the guardian took the view that the little girl should stay where she was pending the final determination.  The Justices decided to retain the case and they gave directions designed to lead to a case management conference in January of next year.  Clearly the matter can be dealt with more swiftly before the Justices than it can be dealt with in the county court.  But there was a disagreement between the local authority in a broad sense and the mother and the guardian in that both mother and the guardian wanted K to stay where she was with her foster carer and the local authority’s care plan was for K to be moved to alternative local authority foster carers. 

4. This point immediately raises a dilemma which has exercised the judiciary ever since the Children Act was implemented.  Prior to the implementation of the 1989 Act, Parliament had left the power to dictate where a child should live with the court.  The court could direct the local authority to place the child in a particular placement and the court retained control over the local authority’s action.  All that was changed by the 1989 Act, and in the well known case of A v Liverpool City Council [1982] AC 363 the House of Lords decided authoritatively that once a care order had been made, whether final or interim, the court was effectively faced with a choice and not a choice which was in any sense attractive.  It could either make a care order whether or not it agreed with the care plan, or it could decline to make a care order.  If it declined to make a care order then the child would not be subject to any form of intervention subject to the ongoing proceedings but would return to the care of her mother in this case.  If the court made an interim care order the child would be subject to the local authority’s interim care plan. 

5. There clearly was some delay after the assessment was over and there was a time when K remained with her present foster carer when she was, I think, formally being assessed.  The guardian’s position, which, as I say, is a perfectly honourable and appropriate one, is that K should stay where she is pending the final hearing of the proceedings, and she should stay there because for conventional child welfare reasons it is in the interests of any child to remain in the same placement, having formed attachments, until such time as those attachments need to be broken as they inevitably will be in this case either by the child going back to her mother or by the child being adopted, and therefore, although the Justices had set a fairly tight timetable for the hearing, the child should remain where she was.

6. The social worker who gave evidence to the Justices, and we have been taken to passages in her evidence today, appears to have agreed with that as a general proposition: that, the threshold criteria being surmounted, it would be better for the child to remain where she was.  But that was not the view of the local authority managers.  When the matter came before the Justices and this issue was litigated before them, the Justices faced the dilemma fair and square.  They took the view that, given that there was this dispute between the guardian and the mother on the one side and the local authority on the other, they were left with no alternative but to take the only option which would protect and safeguard the child; namely, that was to make an interim care order.  I go on by quoting from their very full and extended reasons:

“Apart from requesting local authority to review their care plan the guardian did not provide us with any [other] way of achieving her own proposal.

We do not disagree with the guardian’s views at all but it is clear to us that her suggested options could not be attained in all the circumstances of this case.  In that, despite two periods of adjournments for the local authority to review their care plan, they will no longer continue to fund the current placement as explained above, and therefore, the court is powerless to do anything else in that regard.  As a result of that decision, the status quo cannot be maintained.”

7. That I think encapsulates the Justices’ reasons. The guardian was not content with that decision.  She put in issue the fact that there had been the two adjournments.  She took the view that the local authority really should have had initial pressure placed upon them to change their stance, particularly given the evidence of the social worker to the Justices.  So the guardian appealed to HHJ Rutherford.  We have a very helpful note of the Judge’s judgment taken by counsel and we are extremely grateful for it.  The Judge (I do not think I do him any injustice in saying this) essentially took the same view: that if the local authority maintains the stance which it does, namely that it was in the interests of the child for her to move to alternative foster parents in accordance with the local authority’s overall care plan, then he was powerless to intervene.  In a passage which Ms Langdale QC for the guardian accepts accurately states the law, he makes a specific reference to A v Liverpool City Council and says:

“Court has limited discretion – power -- must scrutinise care plan before making Order and if doesn’t think in best interests -- only two things can do: Refuse to make care order if satisfied better for child than making one, or make one for a limited period + invite [the local authority] to think again about the care plan.

But if it invites and Local Authority does think again but still says it is right -- then court has very limited powers -- the only course is judicial review of [the local authority’s] decision.”

8. In my judgment the Justices were perfectly entitled to take the view that they did and to make the order they did, and it must follow that HHJ Rutherford was in my view entitled to uphold them, indeed bound to do so in the circumstances.  In fairness to the local authority, it does not wish, it seems, to take the crude jurisdictional point that this is their care plan and therefore they are in the driving seat.  It argues that great thought has gone into this issue and the local authority is taking this course for measured reasons.  That is the dispute into which I do not think it appropriate for this court to go.  No doubt that if necessary can come out in the wash whether the case reaches its final hearing.  For my part, it seems to me that the Justices were fully exercising their discretion under the Act, and since the local authority is clear that it is not going to change its view I see no purpose in either of the Justices or indeed of the Judge adjourning the matter further.  It is not being suggested that this court should adjourn further.  What I think is being suggested is that the matter should be reheard and the local authority given a yet further opportunity to reflect on the course it has taken.  Speaking for myself, I see no purpose in that.  We are exercising an appellate jurisdiction.  The Justices exercised their discretion appropriately, HHJ Barclay did the same and in my judgment, eloquently though the matter has been put and much as I sympathise with Ms Langdale’s position, the permission threshold in my judgment is not reached. 

9. We have not deliberately gone into the question as to whether or not this as a second appeal should be heard as such.  I am content to deal with the matter on its merits and indeed on the structure of the Act.  The dilemma posed by the Act is well known and this case seems to me a particular example of it, but since Parliament has structured the Act in the way that it has it seems to me that neither the Justices nor HHJ Rutherford had any real choice in the matter and that therefore this application for permission to appeal has to be refused.

Lord Justice Patten: 

10. I agree.

Order: Application refused