(CARE ORDER: ADEQUACY OF CARE PLAN) [2002] UKHL 10 House

28 Pages·2014·0.15 MB·English

[2002]1FLR 815
RE S (MINORS) (CARE ORDER: IMPLEMENTATION OF
CARE PLAN); REW (MINORS) (CARE ORDER:ADEQUACY
OF CARE PLAN)
[2002] UKHL 10
House of Lords
Lord Nicholls of Birkenhead, Lord Mackay of Clashfern, Lord
Browne-Wilkinson, Lord Mustill, Lord Hutton
14 March 2002
Care – Care plan – System of starring essential milestones in care plan –
Increaseduseofinterimcareorders–Whethercourthadexceededjudicial
jurisdiction
Humanrights–Care–Careplan–Systemofstarringessentialmilestonesin
care plan – Increased use of interim care orders – Whether necessary to
ensurethatChildrenActwasConventioncompliant
Inthefirstcase,afullcareorderwasmadefortwochildrenonthebasisofacareplan
for eventual rehabilitation, which included a substantial package of support and
treatmentforthemother.Thelocalauthorityfailedtoimplementthecareplan.Inthe
secondcase,acareorderinrelationtotwoboyswasunderconsiderationbecauseof
themother’sseriousmentalhealthproblems.Althoughthecareplanwasinchoate,and
there was some concern about the local authority’s future performance of its
obligationsundertheplan,thejudgeheldthathehadnochoicebuttomakeafullcare
order.Bothcareorderswereappealed,onthebasisthat,unlesstheinterpretationand
operation of the Children Act 1989 were modified, the 1989 Act was incompatible
with the European Convention for the Protection of Human Rights and Fundamental
Freedoms1950(theConvention).TheCourtofAppealdismissedthefirstappeal,but
allowedthesecond,declaringthattwoadjustmentsintheconstructionandapplication
ofthe1989ActwereneededinordertoavoidtheriskofbreachingConventionrights:
(i)judgesshouldhaveawiderdiscretiontomakeinterimcareorders,ratherthanfinal
care orders; and (ii) the essential milestones of the care plan should be identified at
trial, and elevated to starred status.A failure to achieve a starred milestone within a
reasonabletimewouldreactivatetheinterdisciplinaryprocesswhichhadcontributedto
thecreationofthecareplanand,attheminimum,theguardianwouldbeinformedof
thefailure.Eitherthelocalauthorityortheguardianwouldthenhavetherighttoapply
to the court for further directions. The local authority appealed against the proposed
‘adjustments’, although not against the substantive orders.The first mother appealed
thecareorder.
Held–allowingthelocalauthority’sappealanddismissingthemother’sappeal–
(1) ParliamenthadsetoutitsclearintentionintheChildrenAct1989thatoncea
careorderhadbeenmade,theresponsibilityforthechild’scarethereafterlaywiththe
authority, not with the court, and the courts were not empowered to intervene. This
division of responsibility was a cardinal principle of the Act. The introduction of a
systemwhichgavethecourtasupervisoryrolefollowingthemakingofacareorder
went beyond the bounds of the court’s judicial jurisdiction because it involved a
substantial departure from one of the cardinal principles of theAct. Section 3 of the
HumanRightsAct1998requiredprimarylegislationtobereadandgiveneffectina
way compatible with Convention rights, so far as was possible, but the judicial
innovation of starred milestones passed well beyond the boundary of interpretation,
and would constitute amendment. The starring system could not be seen as a mere
judicialremedyforvictimsofactualorproposedunlawfulconductbylocalauthorities
entrustedwiththecareofchildren,justifiedbyss7and8ofthe1998Act,
816 ReS;ReW (HL) [2002]1FLR
as the proposed system would impose obligations on authorities in circumstances
where there had been no finding of unlawful conduct and, indeed, no breach or
proposedbreachofanyConventionright(seeparas[42],[43],[49]).
(2) The ChildrenAct 1989 was not itself incompatible with or inconsistent with
Art8oftheConvention.Infringementoftherighttorespectforfamilyandprivatelife
was only likely to arise if a local authority failed properly to discharge its
responsibilities under the Children Act 1989; those responsibilities were not
themselvesaninfringementofrightsunderArt8.Itmightbethattherewasafailureto
provideaneffectiveremedyagainstlocalauthorityinfringementsofrightsunderArt8,
as while parents would have an effective remedy in the judicial review process, or
throughproceedingsunders7oftheHumanRightsAct1998,inpracticeachildwith
no parent to act for them might not always have such a remedy, but that was not in
itself an infringement ofArt 8. Under the Convention, failure to provide an effective
remedy for infringement of a Convention right was an infringement of Art 13, but
Art 13 was not a Convention right under the Human Rights Act 1998. Therefore,
legislationwhichfailedtoprovideaneffectiveremedyforinfringementofArt8was
not, for that reason, incompatible with a Convention right within the meaning of the
HumanRightsAct1998(seeparas[57],[59],[60],[63]).
(3) Circumstances might perhaps arise in which English law relating to some
decisions by local authorities concerning care of children would not satisfy the
requirementsofArt6(1),therighttoafairandpublichearingwithinareasonabletime
by an independent and impartial tribunal.The failure to provide access to a court as
guaranteed byArt 6(1) meant that English law might be incompatible withArt 6(1),
but the absence of such a provision from a particular statute did not mean that the
statuteitselfwasincompatiblewithArt6(1).TheabsenceintheChildrenAct1989of
effectivemachineryforprotectingthecivilrightsofyoungchildrenwithnoparentor
guardian was a statutory lacuna, not a statutory incompatibility. The inability of
parentsandchildrentochallengeincourtcaredecisions,howeverfundamental,made
by a local authority while a care order was in force, was a different matter. Judicial
reviewapart,theopportunitytochallengesuchdecisionsincourtwouldbeinconflict
withtheschemeofthe1989Act.TheissueofwhetherinthisrespecttheChildrenAct
1989 was incompatible did not arise in this case, as the parties concerned had not
lacked a court forum in which to express their concern at the lack of progress (see
paras[83],[85],[86],[87],[88]).
(4) Interimcareorderswerenotintendedtobeusedasameansbywhichthecourt
mightcontinuetoexerciseasupervisoryroleoverthelocalauthorityincasesinwhich
itwasinthebestinterestsofachildthatacareordershouldbemade.Problemshad
arisenabouthowfarcourtsshouldgoinattemptingtoresolveuncertaintieswithincare
plansbeforemakingacareorder.Whereanuncertaintyneededtoberesolvedbefore
thecourtcoulddecidewhetheritwasinthebestinterestsofthechildtomakeacare
orderatall,thecourtshouldfinallydisposeofthematteronlywhenthematerialfacts
wereasclearlyknownascouldbehoped.Someuncertaintiesrelatingtothedetailsof
thecareplanweresuitableforimmediateresolution,inwholeorinpart,bythecourt
inthecourseofdisposingofthecareorderapplication;otheruncertaintiescouldand
shouldberesolvedbeforethecourtproceeded,duringalimitedperiodof‘plannedand
purposeful’delay. Frequently the uncertainties involved in a care plan could only be
workedoutafterthemakingofanorder.Despitealltheinevitableuncertainties,when
deciding to make a care order the court should normally have before it a care plan
whichwassufficientlyfirmandparticularisedforallconcernedtohaveareasonably
clearpictureofthelikelywayaheadforthechildintheforeseeablefuture.Thedegree
offirmnesstobeexpected,aswellastheamountofdetailintheplan,wouldvaryfrom
casetocase,butiftheparentsandthechild’sguardianweretohaveafairandadequate
opportunity to make representations to the court on whether a care order should be
made,thecareplanmustbeappropriatelyspecific.Thecourtmustalwaysmaintaina
properbalancebetweentheneedtosatisfyitselfabouttheappropriatenessofthecare
planandthe
[2002]1FLR ReS;ReW (HL) 817
avoidanceofover-zealousinvestigationintomatterswhichweretheresponsibilityof
thelocalauthority(seeparas[90],[92],[93],[95],[97],[99],[102]).
Percuriam:therejectionoftheCourtofAppeal’sinitiativeshouldnotobscurethe
pressing need for Government to attend to the serious practical and legal problems
whichthestarringsystemhadbeendesignedtoaddress(seepara[106]).
Statutoryprovisionsconsidered
ChildrenAct1989,ss1(2),3(1),9(1),20,22,26,31,33,34,37,38,39,84,91(1),100,
PartsIII,IV,XI
HumanRightsAct1998,ss1(1),3,4,6,7,8
ReviewofChildren’sCasesRegulations1991(SI1991/895)
EuropeanConventionfortheProtectionofHumanRightsandFundamentalFreedoms
1950,Arts6,8,13
Casesreferredtoinjudgment
A v Liverpool City Council [1982]AC 363, [1981] 2WLR 948, (1981) 2 FLR 222,
[1981]2AllER385,HL
AireyvIreland(ApplicationNo6289/73)(1979–80)2EHRR305,ECHR
AlconburyDevelopmentsLtdandOthers,TheQueenontheapplicationofvSecretary
of State for the Environment, Transport and the Regions; The Queen on the
application of Holding & Barnes plc v Secretary of State for the Environment,
Transport and the Regions; Secretary of State for the Environment,Transport and
theRegionsvLegalandGeneralAssuranceSocietyLtd[2001]UKHL23,[2001]2
WLR 1389, sub nom The Queen on the application of Holding and Barnes plc,
Alconbury Developments Ltd and Others and Legal & General Assurance Society
LtdvSecretaryofStatefortheEnvironment,TransportandRegions[2001]UKHRR
728, sub nom The Queen on the application of Alconbury Developments Ltd v
SecretaryofStatefortheEnvironment,TransportandtheRegionsandOtherCases
[2001]2AllER929,HL
CH(CareorInterimCareOrder),Re[1998]1FLR402,CA
CvSolihullMetropolitanBoroughCouncil[1993]1FLR290,FD
Daly,TheQueenontheapplicationofvSecretaryofStatefortheHomeDepartment
[2001]UKHL26,[2001]2AC532,[2001]2WLR1622,subnomRvSecretaryof
StatefortheHomeDepartmentexparteDaly[2001]UKHRR887,HL
F,Re;FvLambethLondonBoroughCouncil[2002]1FLR217,FD
HokkanenvFinland(ApplicationNo19823/92)(1995)19EHRR139,[1996]1FLR
289,ECHR
HounslowLondonBoroughCouncilvA[1993]1WLR291,[1993]1FLR702,FD
J(Minors)(Care:CarePlan),Re[1994]1FLR253,FD
Kent County Council v C [1993] Fam 57, [1992] 3 WLR 808, [1993] 1 FLR 308,
[1993]1AllER719,FD
L(SexualAbuse:StandardofProof),Re[1996]1FLR116,CA
M(Care:ChallengingDecisionsbyLocalAuthority),Re[2001]2FLR1300,FD
McMichael v United Kingdom (Application No 16424/90) (1995) 20 EHRR 205,
ECHR
MarckxvBelgium(ApplicationNo6833/74)(1979–80)2EHRR330,ECHR
NielsenvDenmark(ApplicationNo10929/84)(1989)11EHRR175,ECHR
Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001]
EWCA Civ 595, [2002] QB 48, [2001] 3WLR 183, sub nom Donoghue v Poplar
HousingandRegenerationCommunityAssociationLtd[2001]2FLR284,CA
R(CareProceedings:Adjournment),Re[1998]2FLR390,CA
RvA(No2)[2001]UKHL25,[2002]1AC45,[2001]2WLR1546,[2001]3AllER
1,HL
RvLambert[2001]UKHL37,[2001]3WLR206,HL
RvStack[1986]1NZLR257,NZCA
RingeisenvAustria(No1)(ApplicationNo2614/65)(1979–80)1EHRR455,ECHR
818 ReS;ReW (HL) [2002]1FLR
SandD(Children:PowersofCourt),Re[1995]2FLR456,CA
T(AMinor)(CareOrder:Conditions),Re[1994]2FLR423,CA
TPandKMvUnitedKingdom(ApplicationNo28945/95)[2001]2FLR549,ECHR
W(AMinor)(Wardship:Jurisdiction),Re[1985]AC791,[1985]2WLR892,subnom
ReW (A Minor) (Care Proceedings:Wardship) [1985] FLR 879, sub nom W and
OthersvHertfordshireCountyCouncil[1985]2AllER301,HL
WandB,Re;ReW(CarePlan)[2001]EWCACiv757,[2001]2FLR582,CA
WvUnitedKingdom(1988)10EHRR29,ECHR
Casescitedbutnotreferredtoinjudgment
B(Minors)(TerminationofContact:ParamountConsideration),Re[1993]Fam301,
[1993] 3WLR 63, [1993] 3All ER 542, sub nom Re B (Minors) (Care: Contact:
LocalAuthority’sPlans)[1993]1FLR543,CA
BottavItaly(1998)26EHRR241,ECHR
Brown v Stott (Procurator Fiscal, Dunfermline) and Another [2001] 2 WLR 817,
[2001] 2All ER 97, sub nom Procurator Fiscal, Dunfermline and Her Majesty’s
AdvocateGeneralforScotlandvBrown[2001]UKHRR333,PC
JohansenvNorway(1997)23EHRR33,ECHR
KandTvFinland[2001]2FLR707,ECHR
KeeganvIreland(1994)18EHRR342,ECHR
L(InterimCareOrder:PowerofCourt),Re[1996]2FLR742,CA
MaaouiavFrance(2001)33EHRR42,ECHR
ManchesterCityCouncilvF,Note[1993]1FLR419,FD
RvUnitedKingdom[1988]2FLR445,(1987)10EHRR74,ECHR
SandGvItaly[2000]2FLR771,ECHR
SalesivItaly(1998)26EHRR187,ECHR
ScottvUnitedKingdom[2000]1FLR958,ECHR
SimpsonvUnitedKingdom(1989)64DR188,EcomHR
T(AccommodationbyLocalAuthority),Re[1995]1FLR159,QBD
XandYvTheNetherlands(1985)8EHRR235,ECHR
AllanLevyQCandCatrionaDuthieforthemother
PhilipSalesandDeborahEatonfortheDepartmentofHealth
RobinTolsonQCandKeirStarmerfortheguardianadlitem(inthecaseofS)
AnnaPauffleyQCandClaireRowsellforTorbayCouncil
IanPeddieQC,SarahForster,NicholasKhanandRebeccaMitchellfortheparents
RobinTolsonQC,SimonTattersallandKeirStarmerfortheguardianadlitem(inthe
caseofW)
Cherie Booth QC, Lee Arnot, Conor Gearty and Stefano Nuvoloni for Bedfordshire
CountyCouncil
Curadvvult
LORDNICHOLLSOFBIRKENHEAD:
MyLords,
[1] These appeals concern the impact of the Human RightsAct 1998 on
PartsIIIandIVoftheChildrenAct1989.TheCourtofAppeal(seeReWand
B; Re W (Care Plan) [2001] EWCA Civ 757, [2001] 2 FLR 582) (Thorpe,
SedleyandHaleLJJ)made,inthewordsofThorpeLJ,twomajoradjustments
andinnovationsintheconstructionandapplicationoftheChildrenAct1989.
The principal issue before your Lordships’House concerns the soundness of
thisjudicialinitiative.
[2002]1FLR LordNicholls ReS;ReW (HL) 819
TheTorbaycase
[2] The appeals concern four children, two in theTorbay case and two in
the Bedfordshire case. The cases are factually unrelated. In the Torbay case
themotherhadthreechildren:P,whoisaboyborninAugust1987,M,aboy
borninJanuary1991,andJ,agirlborninJanuary1992.Thechildrenarenow
14, 11 and 10 years old. The appeal concerns the two younger children. The
father of P, the eldest child, played no part in these proceedings.The mother
metthefatherofMandJin1987.Theystartedtocohabitin1989.
[3] SeriousproblemsemergedinMay1999whenPranawayfromhome
andrefusedtoreturn.Hesaidthathisstepfather,namely,thefatherofMand
J, had repeatedly beaten him and that he was afraid of him. Torbay Council
arranged a foster placement. The father denied the charge and the mother
supported him.They united to reject and isolate P.At a case conference held
in November 1999 the father behaved appallingly. He was arrested for
threatening behaviour, charged and subsequently sentenced to community
service.ThispromptedTorbayCounciltoissueanapplicationforacareorder
inrespectofPandsupervisionordersinrespectofMandJ.
[4] In May 2000 P told a fuller story. He described how the father had
buggeredhimonseveraloccasions.Achildprotectioninvestigationfollowed.
Again the father denied the allegations.Again the mother supported him. M
andJwerethentakenintocare,pursuanttoanemergencyprotectionorderof
7June2000,andplacedinfostercare.InJuly2000themotherandthefather
separated,apparentlyinordertostrengthenthemother’scaseforthereturnof
M and J.The paediatric examinations of the children were inconclusive. But
an acknowledged expert in this field reported that the father presented an
unacceptable risk to the children and that the mother was incapable of
protectingthem.Herecommendedtherapyforher.Atthisstagetheseparation
of the mother and father became permanent. The mother was then aged 36.
Thefatherwas31yearsold.
[5] Torbay, the local authority, sought care orders in respect of all three
children.ItscareplanforPwasthatheshouldremaininfostercare.Thecare
planforMandJwasthatanattemptshouldbemadetorehabilitatethemwith
theirmother.Afterhearingmuchevidence,HerHonourJudgeSander,sitting
at Plymouth County Court, made findings of fact on 1 November 2000. The
father was found to have sexually abused P and beaten the children with a
slipper. The mother had failed to protect the children. Both parents had
emotionallyabusedthechildren,particularlybyrejectingP.
[6] Everyone agreed there should be a care order in respect of P. There
was contention over what order should be made regarding the two younger
children.Discussionstookplaceregardingthecareplanforthem.Themother
andthechildren’sguardianelicitedassurancesfromTorbayonthepackageof
support and treatment available to the family which was needed to make
rehabilitation viable. Counsel for the mother, Miss Duthie, sought some
guarantee of performance, or a safeguard in the event of breach. She
submitted that a care order should not be made on the footing that all power
and responsibility would pass toTorbay Council.This, she submitted, would
constitute a breach of the human rights of the mother and the children. Such
anorderwasneithernecessarynorproportionatetotheendtobeachieved.
820 LordNicholls ReS;ReW (HL) [2002]1FLR
Based on previous experience, of which evidence was given, the mother was
veryscepticalaboutwhetherTorbayCouncilwouldcarryoutthecareplanfor
M and J. The mother contended that interim care orders should be made.
TorbayCouncilandthechildren’sguardiansoughtfinalcareorders.
[7] The judge made final care orders in respect of all three children on
1 November 2000. She expressed confidence that Torbay Council would
implementthecareplan.
[8] Unhappily, this confidence proved to be misplaced.There was, as the
Court ofAppeal accepted, a ‘striking and fundamental’failure to implement
the care plan regarding M and J. Most of the assurances given by the social
workers, and accepted by the children’s guardian and the judge, proved vain.
The mother’s principal complaints were as follows. The care plan envisaged
reunification within 6–9 months. But in the 41⁄2 months which had elapsed
between the making of the care orders and the hearing of the appeal nothing
hadhappened.Theplannedfamilytherapyworkhadnottakenplace.Asocial
worker was not provided to assist the mother. The Hillside Family Centre
programme was not started until early in March 2001.The therapy proposed
forthemotherwasnotunderway.
[9] The Court of Appeal observed that this ‘sad history of potentially
disastrous failure’fully vindicated the line taken by Miss Duthie at the trial.
The Court of Appeal acquitted Torbay of bad faith. The most that could be
said against the council was that at the trial it had too readily promised
supportforwhichthemotherlaterprovedtobeineligible.Theprincipalcause
of ‘these serious failings’ was a financial crisis within the unitary authority
leadingtosubstantialcutsinthesocialservicesbudget.
[10] The mother’s primary contention in the Court ofAppeal was that the
judgehaderredinrejectinghercontentionthatinterimcareorders,asdistinct
from final care orders, were the appropriate relief regarding M and J.Torbay
and the children’s guardian opposed this contention. They submitted that the
mother’s appeal should be dismissed. The children’s guardian also sought
directions for trial under s 7 of the Human RightsAct 1998 by a High Court
judgetoestablishthenatureandextentofTorbay’sbreaches,ifany,ofitsduty
tothechildrenunders6ofthatAct.
TheBedfordshirecase
[11] TheBedfordshirecaseconcernstwoboys:J,borninMay1989,andA,
born inAugust 1991. They are now 12 and 10 years old. Their mother, now
aged38,isAmerican.Theirfather,aged46,isBritish.Theparentsmetinthe
USandmarriedinthiscountry.Theirchildrenwerebornhere.Theyhavehad
a volatile relationship, separating and being reconciled on a number of
occasions. They have spent significant periods living apart. Throughout their
lives the children have had contact with their father. Until 6 September 1999
thechildrenlivedwiththeirmother.
[12] At times, during much of the children’s lives, there has been concern
about their parents’ability to meet the children’s needs. This has centred on
the parents’relationship and the mother’s mental health. In 1999 this anxiety
deepened. The mother made allegations against the father. These were not
substantiated. The mother’s conduct deteriorated. There was concern about
the children’s emotional development, and the failure of the parents to
acknowledgetheextentoftheproblem.
[2002]1FLR LordNicholls ReS;ReW (HL) 821
[13] On 2 September 1999 Bedfordshire County Council applied for care
orders. Pursuant to an emergency protection order and interim care orders,
periodically renewed, the children were placed with foster-parents.
Bedfordshire’sfinalcareplanwasthatthechildrenshouldbeplacedwiththe
maternal grandparents, with continuing direct contact with both parents. The
grandparentslivedintheUS.TheyagreedtomovetoEnglandtocareforthe
children. The children were to remain in foster care until the grandparents
movedhere.
[14] The children’s guardian also supported placement with the maternal
grandparents.The final report of the guardian concluded that the parents had
notmadesufficientchangesforthechildrentobereturnedsafelytotheircare
fortheforeseeablefuture.
[15] The applications for care orders came before His Honour Judge
Hamilton, sitting in Luton County Court, on 20 November 2000. He heard
evidence over 9 days, and gave judgment on 11 December 2000. The judge
concluded that the children were unable to return safely to the joint care of
their parents: ‘possibly, or even probably, it may be appropriate in 12 to 18
months, but not now’. All the parties agreed that the maternal grandparents
would be suitable carers, although the evidence that they would be able to
come here was ‘exiguous in the extreme’. The judge described the care plan
as inchoate, because of all the uncertainties involved. In addition to
uncertainty about the grandparents’ position, the uncertainties included the
outcomeoffurtherassessmentandtherapyfortheboys,thefinaloutcomeof
marital work for the parents, and the possibility of improvements with the
mother’spersonalitytrait.Thejudgemadecareordersforbothchildren.
TheoutcomeintheCourtofAppeal
[16] TheCourtofAppealheardappealsinbothcasestogether.Theparties’
arguments were wide-ranging as, indeed, they were before your Lordships’
House. The Secretary of State for Health was joined as a party because of
claimsforadeclarationthatss31,33(3),38and100oftheChildrenAct1989
are incompatible with the European Convention for the Protection of Human
RightsandFundamentalFreedoms1950(theConvention).
[17] Stated shortly, the two innovations fashioned by the Court ofAppeal
werethese.First,thecourtenunciatedguidelinesintendedtogivetrialjudges
awiderdiscretiontomakeaninterimcareorder,ratherthanafinalcareorder.
The second innovation was more radical. It concerns the position after the
court has made a care order. The Court of Appeal propounded a new
procedure,bywhichatthetrialtheessentialmilestonesofacareplanwould
be identified and elevated to a ‘starred status’. If a starred milestone was not
achievedwithinareasonabletimeafterthedatesetattrial,thelocalauthority
wasobligedto‘reactivatetheinterdisciplinaryprocessthatcontributedtothe
creation of the care plan’. At the least the local authority must inform the
child’s guardian of the position. Either the guardian or the local authority
would then have the right to apply to the court for further directions: see the
judgment of Thorpe LJ (ReW and B; ReW (Care Plan) [2001] EWCA Civ
757,[2001]2FLR582,paras[29]and[30]).
[18] TheCourtofAppealregardedtheoutcomeoftheappealintheTorbay
caseasfinelybalanced.Thecourtdeclinedtodisturbthejudge’s
822 LordNicholls ReS;ReW (HL) [2002]1FLR
order.Thecourtalsodismissedtheapplicationbythechildren’sguardianfor
directionsfortrialunders7oftheHumanRightsAct1998.Progresshadbeen
sufficient to make referral to the High Court an unnecessary distraction from
the main business of getting on with the care plan. An application for
‘starring’ofthecareplanwasreferredtothejudge.
[19] On2July2001HerHonourJudgeSanderstarredvariousitemsinthe
final care plan. She directed that Torbay Council was to provide a progress
reporttothechildren’sguardianor,intheabsenceoftheguardian,thecourtif
astarredelementwasnotachievedwithin14daysofthespecifieddates.The
House was told that the starred plan is working well and that the children’s
interestsarenowbeingmet.
[20] AstotheBedfordshirecase,theCourtofAppealhelditwasclearthat
the care plan was insufficiently mature and that His Honour Judge Hamilton
hadwantedmoretimetoawaitdevelopments.Hehadbeenconstrainedbythe
case-lawtomakethefullcareorder.Thejudgeshouldhaveinsistedonmore
informationbeforemakingtheorder,oronareportbackifthingsdidnotturn
out as expected.The court allowed the appeal in this case, replacing the care
order with an interim care order and remitting the case to His Honour Judge
Hamiltonforhisfurtherconsideration.
[21] Later developments in the Bedfordshire case should be mentioned
briefly. Setting aside the care order had the unfortunate consequence of
augmentingtheuncertaintyaboutthechildren’shomeforthenearfuture.The
maternal grandparents were reluctant to come to this country to care for the
childrenunlessafinalcareorderwasmade.On24October2001HisHonour
Judge Hamilton made a final care order with the consent of the children’s
guardian, and without any opposition from the parents. This care order was
not starred. The parents stated they will apply for the care order to be
dischargedifthechildrenhavenotbeenreunitedwiththembyOctober2003.
[22] Before your Lordships’ House the Secretary of State for Health and
Bedfordshire Council appealed against the reasoning of the Court ofAppeal
onitstwoinnovations,notagainstthesubstantiveordersmade.IntheTorbay
casethemotherofthechildrenappealedagainsttheordermadebytheCourt
ofAppeal.TorbayCouncilsupportedtheappealoftheSecretaryofStateand
BedfordshireCouncil.
Starredmilestones
[23] Two preliminary points can be made at the outset. First, a cardinal
principleoftheChildrenAct1989isthatwhenthecourtmakesacareorderit
becomesthedutyofthelocalauthoritydesignatedbytheordertoreceivethe
childintoitscarewhiletheorderremainsinforce.Solongasthecareorderis
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: s 33.An authority might, for instance, not permit
parentstochangetheschoolofachildlivingathome.Whileacareorderisin
force the court’s powers, under its inherent jurisdiction, are expressly
excluded:s100(2)(c)and(d).Further,thecourtmaynotmakeacontactorder,
aprohibitedstepsorderoraspecificissueorder:s9(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
initscareunderacareorder.Thecourtretainsjurisdictiontodecidedisputes
[2002]1FLR LordNicholls ReS;ReW (HL) 823
aboutcontactwithchildrenincare:s34oftheChildrenAct1989.Thecourt
may discharge a care order, either on an application made for the purpose
under s 39 or as a consequence of making a residence order (ss 9(1) and
91(1)).TheHighCourt’sjudicialreviewjurisdictionalsoremainsavailable.
[25] Theseexceptionsdonotdetractsignificantlyfromthebasicprinciple.
The Children Act 1989 delineated the boundary of responsibility with
completeclarity.Whereacareorderismadetheresponsibilityforthechild’s
care is with the authority rather than the court. The court retains no
supervisory role, monitoring the authority’s discharge of its responsibilities.
ThatwastheintentionofParliament.
[26] Consistently with this, in Kent County Council v C [1993] Fam 57,
[1993] 1 FLR 308 Ewbank J decided that the court has no power to add to a
careorderadirectiontotheauthoritythatthechild’sguardianadlitemshould
be allowed to have a continuing involvement, with a view to his applying to
thecourtinduecourseifthoughtappropriate.InReT(AMinor)(CareOrder:
Conditions) [1994] 2 FLR 423 the Court of Appeal rightly approved this
decision and held that the court has no power to impose conditions in a care
order. There the condition sought by the child’s guardian was that the child
shouldresideathome.
[27] ThiscardinalprincipleoftheChildrenAct1989representedachange
in the law. Before the Children Act 1989 came into operation the court, in
exercise of its wardship jurisdiction, retained power in limited circumstances
togivedirectionstoalocalauthorityregardingchildreninitscare.Thelimits
of this jurisdiction were considered by your Lordships’ House in A v
Liverpool City Council [1982] AC 363, (1981) 2 FLR 222 and Re W (A
Minor) (Wardship: Jurisdiction) [1985] AC 791, sub nom Re W (A Minor)
(CareProceedings:Wardship)[1985]FLR879.Thechangebroughtaboutby
the Children Act 1989 gave effect to a policy decision on the appropriate
divisionofresponsibilitiesbetweenthecourtsandlocalauthorities.Thiswas
oneofthematterswidelydiscussedatthetime.Areportmadetoministersby
an inter-departmental working party Review of Child Care Law (September
1985) drew attention to some of the policy considerations. The particular
strength of the courts lies in the resolution of disputes: its ability to hear all
sides of a case, to decide issues of fact and law, and to make a firm decision
on a particular issue at a particular time. But a court cannot have day-to-day
responsibility for a child. The court cannot deliver the services which may
best serve a child’s needs. Unlike a local authority, a court does not have
close, personal and continuing knowledge of the child. The court cannot
respond with immediacy and informality to practical problems and changed
circumstancesastheyarise.Supervisionbythecourtwouldencourage‘drift’
in decision making, a perennial problem in children cases. Nor does a court
have the task of managing the financial and human resources available to a
local authority for dealing with all children in need in its area.The authority
mustmanagetheseresourcesinthebestinterestsofallthechildrenforwhom
itisresponsible.
[28] The Children Act 1989, 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,
andmakesthenecessarycareorderwhenthethresholdconditionsare
824 LordNicholls ReS;ReW (HL) [2002]1FLR
satisfiedandthecourtconsidersacareorderwouldbeinthebestinterestsof
the child. That is the responsibility of the court. Thereafter the court has no
continuingroleinrelationtothecareorder.Thenitistheresponsibilityofthe
localauthoritytodecidehowthechildshouldbecaredfor.
[29] My second preliminary point is this. The ChildrenAct 1989 has now
been in operation for 10 years. Over the last 6 years there has been a steady
increaseinthenumberofchildrenlookedafterbylocalauthoritiesinEngland
and Wales. At present there are 36,400 children accommodated under care
orders, compared with 28,500 in 1995, an increase of 27%. In addition local
authorities provide accommodation for nearly 20,000 children under s 20
orders (children in need of accommodation). A decade’s experience in the
operationoftheChildrenAct1989,atatimeofincreasingdemandsonlocal
authorities,hasshownthatthereareoccasionswhen,withthebestwillinthe
world, local authorities’ discharge of their parental responsibilities has not
beensatisfactory.Thesystemdoesnotalwaysworkwell.Shortagesofmoney,
of suitable trained staff and of suitable foster carers and prospective adopters
fordifficultchildrenareamongthereasons.Therehavebeendelaysinplacing
children in accordance with their care plans, unsatisfactory breakdown rates
anddelaysinfindingsubstituteplacements.
[30] But the problems are more deep-seated than shortage of resources. In
November 1997 the Government published Sir William Utting’s review of
safeguards for children living away from home. Mr Frank Dobson, then
SecretaryofStateforHealth,summarisedhisreactiontothereport:
‘It covers the lives of children whose home circumstances were so bad
thatthoseinauthority,tousethejargon,tookthemintocare.Thereport
reveals that in far too many cases not enough care was taken.
Elementarysafeguardswerenotinplaceornotenforced.Manychildren
were harmed rather than helped. The review reveals that these failings
werenotjustthefaultofindividuals–thoughindividualswereatfault.
Itrevealsthefailureofawholesystem.’
[31] In autumn 1998 the Government published its response to the
children’s safeguards review (Cm 4105) and launched its Quality Protects
Programme, aimed at improving the public care system for children.
Conferenceshavealsobeenheld,andmanyresearchstudiesundertaken,both
private and public, on particular aspects of the problems. Some of the
problems were discussed at the bi-annual President’s Inter-disciplinary
Conference on Family Law 1997, attended by judges, child psychiatrists,
social workers, social services personnel and other experts. The proceedings
oftheconferenceweresubsequentlypublishedinbookform,DividedDuties:
CarePlanningforChildrenwithintheFamilyJusticeSystem(FamilyLaw,1st
edn,1998).Thesharpnessofthedividebetweenthecourt’spowersbeforeand
after the making of a care order attracted criticism. The matters discussed
included the need for a care plan to be open to review by the court in
exceptional cases. One suggestion was that a court review could be triggered
by failure to implement ‘starred’key factors in the care plan within specified
time-scales. The guardian ad litem would be the appropriate person to
intervene.