Chief Legal Officer:

Mirza F.N. Ahmad MBA LLM Barrister

Ingleby House,

11-14 Cannon Street,

Birmingham B2 5EN


BRIEFING NOTE : CARE PLANS


INTRODUCTION

 

In this Briefing Note, I propose to consider the ongoing role, if any, of a court, following the making of a care order. This issue was recently considered by the House of Lords in Re S and Others and Re W and Others (Consolidated Appeals (2002) UKHL 10. In the judgment on the conjoined appeals, given on the 14 March 2002, the House of Lords unanimously decided to set aside the concept of ‘starred care plans’ introduced by the Court of Appeal on the 2 July 2001. This long awaited and controversial decision has ended months of speculation and anticipation by all ‘sides of the camp’ as to the future role of the courts once a final care order has been made. In this article, I will explore whether the House of Lords decision is truly the end or only the beginning of a more extensive control the courts have over the discharge of local authority powers and responsibilities.

 

BACKGROUND

 

In two separate appeals, the issues revolved around the impact of the Human Rights Act 1998 to Part III and IV of the Children Act 1989. The parents had alleged that the Children Act 1989 was not compatible with the European Convention of Human Rights, and that the case law governing the interpretation of the Act would need to be modified to ensure compatibility. The Court of Appeal passed two significant innovations into the application of the Children Act 1989 (Re W & B (children) (care planning) and Re W (children)(care planning) 2001 FCR 450).

 

THE FACTS

 

  1. THE TORBAY CASE
  2.  

    At the final hearing, the care plan was rehabilitation of the children to the mother. Before this rehabilitation could take place, the mother had to demonstrate and show that she could separate from her abusive partner. Furthermore, the care plan contained a programme of therapy for the mother, as well as parenting work, and family therapy. Rehabilitation was to take place within 6-9 months if the work was completed. At first instance, the court made a care order, having being confident that Torbay council would implement the care plan. However, approximately four months after the care orders were made, nothing had happened. In particular, the planned family therapy work had not taken place, a social worker had not been provided to assist the mother, family therapy had not started and the children were still in foster care. The mother appealed to the Court of Appeal and sought interim care orders to be made. The Court of Appeal put this failure of the local authority down to financial difficulties, which led to substantial cuts in the social services budget.

     

  3. THE BEDFORDSHIRE CASE

 

At the final hearing, there was a possibility that the maternal grandparents, who lived in the United States, could care for the children. However, there were various uncertainties with the care plan. In particular, the immigration status of the grandparents was uncertain and the children were to remain in foster care until the grandparents moved to England. Furthermore, there was uncertainty over therapy for the children, and the possibility of mother's mental health improving. At first instance, a care order was made. The mother appealed on the basis that interim orders should be made.

 

WHAT WERE THE DIFFICULTIES THAT THE COURT OF APPEAL FACED IN BOTH CASES?

 

The problem was that once the case had been ‘made out’ and the local authority had proved their case, the court was then obliged to make a care order, even though the court may disagree with the outcome for the child. The designated local authority would share parental responsibility with the parent of the child (S.33 Children Act 1989). Though the court has some powers under a care order, such as dealing with disputes about contact with a child in care (section 34), and discharge of orders (Section 39), the court has no supervising role to see if the authority discharges its duties. Consequently, there were concerns that once a final care order was made, the child's guardian would no longer be involved with the child, so as to afford the child some ‘protection,’ should there be local authority failure to implement the care plan. With these problems in mind, how did the court deal with the issue?

 

THE SOLUTION?

 

The Court of Appeal tackled the dilemma in the following two ways:

  1. Firstly, the court provided guidelines intended to give judges a wider discretion to make interim care orders at the final hearing, rather than a final care order. In particular, Lord Justice Thorpe said:

"…where the care plan seems inchoate or where the passage of a relatively brief period seems bound to see the fulfilment of some event or process vital to planning and deciding the future…a judge must be free to defer making a care order until he is satisfied that the way ahead is no longer obscured by an uncertainty that is neither inevitable nor chronic." (Court of Appeal Thorpe LJ at paragraph 29 )

2. It was felt by the court that rather than make interim care orders, which would be regarded as ‘artificial’ and ‘inconvenient’, the matter should instead be brought back before the court should things go wrong. Consequently, the other option, which was more radical and far reaching was to make a ‘starred’ care plan. This would allow the case to be brought back before the court, coupled with an ‘obligation’ to return the case to court, should one of the ‘starred milestones’ not be reached.

 

WHAT LEGAL BASIS DID THE COURT OF APPEAL REST ITS DECISION UPON?

 

The Court of Appeal relied heavily upon the application of Section 3 Human Rights Act 1998. This provides that so far as is possible, primary legislation should be read and given effect in a way which is compatible with the convention rights. Hale LJ, in particular, seized upon this and declared that where the elements of the care plan were so fundamental that there was a risk of a breach of the convention rights if they were not fulfilled, then there should be a mechanism through which the matter returns to court. Only in this way were the courts adhering to the requirements of Section 3 Human Rights Act 1998.

 

THE DECISION OF THE HOUSE OF LORDS

 

The decision of the Lords was unanimous in setting aside starred care plans. The leading judgement was that of Lord Nicholls of Birkenhead. He said that over the last ten years that the Children Act had been in operation, at a time of increasing demands upon local authorities, there were occasions where discharge by local authorities of their parental responsibility had not been satisfactory. He put this down largely to shortages of money, suitable trained staff, suitable foster carers and prospective adopters for difficult children. Lord Nicholls accepted that it was necessary for such reasons, for a court to have some means where care plans had not been implemented, so that the welfare of the child was not prejudiced. However, he said:

 

" The question is whether the courts have the power to introduce into the working of the Children Act 1989, a range of rights and liabilities not sanctioned by Parliament" (House of Lords, at paragraph 35).

 

His view, shared by the other Lordships was that the ‘starring’ system was not a legitimate exercise in the interpretation of the Children Act, in accordance with S.3 of the Human Rights Act 1998. The Lords made it clear that the courts are not empowered to intervene in the way local authorities discharge their parental responsibility under a care order. Parliament had given local authorities, not the courts the responsibility of looking after children, who were subject to care orders, and the starring system would depart from this principle.

Lord Nicholls went on to declare that the starring system would involve further administrative work and expense, as well as have a significant effect on the authorities’ scarce use of resources. These were matters which were for Parliament to decide upon, not the courts. Consequently, the Lords concluded that the Court of Appeal had exceeded its jurisdiction under S.3 by allowing starred care plans.

The Lords considered and decided against the applicability of various sections and articles of the Human Rights Act which had been relied upon by the Court of Appeal in coming to their decision. These are considered in turn below, starting with sections 6, 7, and 8, and then considering articles 8 and 6 respectively.

 

THE ESSENTIAL DIFFERENCE BETWEEN FAILURE TO ACT AND THE IMPOSITION OF POSITIVE OBLIGATIONS

 

In extending its judicial powers, the Court of Appeal seemed to have relied upon section 6 (unlawful for a public authority to act in a way which is incompatible with a convention right), Section 7 (victims of unlawful conduct permitted to bring proceedings) and Section 8 (court given the power to grant such relief as it considers appropriate). Lord Nicholls stressed that to be liable under Section 7, the authority must have carried out, or propose to carry out an act, which was unlawful. However, he declared that the starred care plan system went further than merely providing a remedy for an actual or proposed unlawful conduct by the local authority. They allowed obligations to be placed upon the authority in situations where they have not acted unlawfully and do not propose to do so.

 

IS THE CHILDREN ACT INCOMPATIBLE WITH ARTICLE 8?  

 

Article 8 is an important article in giving respect to private and family life. The House of Lords considered the contention that the Children Act failed to provide an adequate remedy if a local authority failed to discharge its duties under a care order, and consequently, this resulted in a breach of article 8. The Lords took the stance that this argument was ‘misconceived’. Firstly, they stressed that there were various remedies made available to individuals aggrieved with local authority failings, such as the use of judicial review and applications for discharge of the care order. Secondly, and more importantly, the Lords stressed that even if the remedies available to individuals were inadequate, a failure of the Children Act to provide an effective remedy for violation of article 8 was not itself a violation of article 8.

 

IS THE CHILDREN ACT INCOMPATIBLE WITH ARTICLE 6?

 

It had been contended that once a final order had been made, there was no mechanism within which to have access to the court and hence allegedly a breach of article 6. To this contention, Lord Nicholls claimed that the absence of such a provision from the Children Act did not make the statute incompatible with Article 6, but rather, this at the very most, showed the existence of a lacuna in the Act. In the words of Lord Nicholls, "In such cases there is a statutory lacuna, not a statutory incompatibility." (House of Lords, at paragraph 86).

 

WHAT OF THE EXTENDED USE OF INTERIM CARE ORDERS?

 

The Lords also considered guidance issued by the Court of Appeal on the wider use of interim care orders. It will be known that a court can make an interim care order when the application for a care or supervision order is adjourned {S.38(1)(a)}. The intention behind interim orders is to safeguard the child’s welfare until such time as the court is in a position to decide whether a final order is to be made. In coming to its decision, the court will scrutinise the local authorities’ care plan (Re T (Minors)(Care Proceedings: Care Plan) (1994) 2 FCR 136). However, if the court is satisfied that a care order should be made, can it defer from making one, so as to maintain some judicial control over the local authority? Lord Nicholls answered this in the negative, by stating:

 

"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 in cases where it is in the best interests of a child that a care order should be made…Once a final care order is made, the resolution of the uncertainties will be a matter for the authority, not the court" (House of Lords, at paragraph 90).

 

We can imagine a typical situation where if a local authority seeks a final order on a care plan, which endorses rehabilitation, but one which requires a period of assessment, then as long as the local authority is aware of the difficulties that could arise in implementation, the court should be making a final order on the basis that it is in the child’s best interests. The local authority would need to react to changes which may occur after a care order is made, but at times, this was inevitable to occur. As Lord Nicholls put it, "No care plan can ever be regarded as set in stone" (House of Lords, at paragraph 98).

Therefore, one can see that if the court was to make interim orders, with the underlying intention of maintaining a supervisory role, this seems ‘artificial’ and not in accordance with the Children Act 1989. Furthermore, what of the delay principle under S.1(2) Children Act 1989? The Lords were keen to stress the delay caused when postponing a decision as to a child’s long- term future, and hence continuing to make interim orders was likely to prejudice the child’s welfare. One can also foresee the time and expense involved for all, in interim orders continuing to be made, as well as the additional stress and anxiety caused to the parents and child by the uncertainty of not knowing when a final order would be made.

 

WHAT WAS THE OUTCOME OF THE CONJOINED APPEALS?

 

For the reasons set out above, the House of Lords dismissed the appeal by the mother in the Torbay case, who had sought interim orders to be made. In the Bedfordshire case, the Lords set aside the starring system of care plans.

 

BUT IS THIS THE END?  

 

Now that starred care plans are no longer law, what does the future hold? A significant piece of proposed legislation, namely The Adoption and Children Bill is still making its way through Parliament. It has been changed significantly since its introduction March last year. Could starred care plans be resurrected and feature as an additional item in the Adoption and Children Bill? There certainly seems to be a ‘leaning’ towards this, or some other form of proposed legislation, when Lord Nicholls, after rejecting starred care plans stated:

 

"I cannot stress too strongly that the rejection of this innovation on legal grounds must not obscure the pressing need for the Government to attend to the serious practical and legal problems identified by the Court of Appeal or mentioned by me." (House of Lords, at paragraph 106).

 

However, for now, what rights are available to an individual who is aggrieved with the implementation by the local authority of its care plan? These can take many forms, such as a S.8 application for residence, a discharge application under S.39, judicial review and the complaints procedures under S.26. Some would argue that these rights are limited and unsatisfactory. For such reasons, though starred care plans have ‘died of death’ at the present time, there seems to be every chance of they making themselves available again in the not too distant future.

 

September 2002