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You are here: BAILII >> Databases >> United Kingdom Journals >> Gillespie, The Care Plan URL: http://www.bailii.org/uk/other/journals/WebJCLI/1999/issue4/gillespie4.html Cite as: Gillespie, The Care Plan |
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Barrister,
Ph. D. Candidate,
Department of Law,
University of Durham
<[email protected]>
Copyright © 1999 Alisdair A. Gillespie.
First Published in Web Journal of Current Legal Issues in association with
Blackstone Press Ltd.
This article examines the courts' powers in relation to care plans. A care plan is the fundamental document in care proceedings brought under the Children Act 1989, yet it is not mentioned in the Act itself, nor has there been a substantial amount of case law on the subject.
This article considers whether a court has powers to scrutinise the care plan, and if so, whether this means it can change a care plan submitted by the local authority. An analysis of previous cases is made, together with academic opinion, to assess what powers a court has when dealing with the plans. The article concludes by recommending legislative changes to ensure protection at children in placements.
A document known as the care plan is at the heart of any application made under the Children Act 1989 to place a child into the care of a local authority. But what is the care plan, and where does its authority come from?
In order to examine these issues, it is first necessary to understand the procedure for placing a child into care. By analysing this procedure it becomes easier to identify the purpose of a care plan. There are four key stages to care proceedings under the Children Act. These are shown below:
| Stage | |
| I | Is section 31(2)(a), Children Act 1989 satisfied? i.e. has the child suffered or is the child likely to suffer significant harm? |
| II | Is section 31(2)(b) satisfied? i.e. is the harm under stage I attributable to the child not receiving the care it would be reasonable to expect a parent to give, or is the child beyond parental control? |
| III | Is section 1(5) discharged? i.e. is it better to make the care order than make no order at all? |
| IV | Are sections 1(1) and 1(3) satisfied? i.e. is it in the best interests of the child's welfare for a care order to be made? |
Stages I and II are questions of fact, where the court must make a decision as to whether the "threshold criteria" set out in section 31(2), Children Act 1989 have been met. The parties adduce evidence to support their respective arguments. Stages III and IV are only considered if the threshold criteria are met. These stages do not concern questions of fact but questions as to the child's welfare, hence the use of the welfare checklist (set out in s.1(3), Children Act 1989). Here, the court is not merely looking at previous abuse, but also to the child's future care. The court must be satisfied that it is in the best interests of the child for the local authority to assume parental responsibility. To do this the court must know what the future care of the child will be - and it is this which the care plan addresses. In essence, a care plan is a description of what the local authority will do if it is given care of the child.
It is easy to see why the court must examine the child's past, but if there is evidence of harm in its present accommodation why should a court need to look to the future? The answer relates to section 1 of the Children Act 1989 which places an obligation onto the court to ensure that any order it makes is in the best interests of the child, and helps to secure the welfare of the child. Every placement carries with it the risk of further harm and it would obviously be unjustified to place the child without taking this risk into account. Howard illustrates this point by stating:
[judges know] that going into care can be a disaster for a child, [which] means that a great deal of evidence and persuasion has to be put before a judge, before a care order is made. (Howard (1997) p.2)
The court must assess the standard of care the child is likely to receive if he or she is removed from parental control, and it is the care plan which gives this information to the court. Yet, as important as the care plan must therefore be, there is no express mention of a "care plan" in the Children Act 1989 (although if the Adoption Bill 1996 had been enacted, it would have given the care plan a statutory footing) so what is the authority for the plan and what should the plan contain?
Although the Children Act does not mention a care plan, secondary legislation would appear to do so. Paragraph 3(1) of the Arrangements for Placement of Children (General) Regulations 1991 (S.I. 1991/ 890) state:
Before they place a child, the responsible authority shall, so far as reasonably practicable, make immediate and long-term arrangements for that placement, and for promoting the welfare of the child who is to be placed.
Further authority for the existence of a care plan is given in the Guidance and Regulations issued at the time of the implementation of the Children Act 1989. Volume 3 states what a care plan should contain and in Manchester City Council v F [1993] 1 FLR 419 and Re J (Minors)(Care: Care Plan) [1994] 1 FLR 253 the Family Division stated that care plans should normally conform to the format set out in the Guidance.
The difficulty is that a care plan, by its very nature, must differ with each child. Different children will have different needs and this must mean that the plans for each child will differ even to timescale. For example, if a child has been sexually abused the plan should be able to examine the long-term future of the child. If, however, a child has been physically abused and as a result of this abuse suffered brain damage, the plan may not be able to deal with the long-term care until medical evidence exists which will enable such decisions to be made. The court will rigorously uphold the principle that care plans must be tailored to individual children. In Berkshire County Council v B [1997] 1 FLR 171 the local authority's plan for children under 10 was adoption, there was no alternative. The Family Division upheld a decision of the Family Proceedings Court to issue orders which would frustrate the care plan because the authority was not considering the child as an individual. Hale J. stated (at 176):
[the local authority] cannot approach decision making in any particular case as if it were governed by general principles alone.
The importance of a care plan cannot be underestimated. It is on this basis that the court will decide to hand parental responsibility to the local authority. The question, however, is whether the court is bound to accept the care plan presented to it, or whether it can shape or amend the care plan to suit its needs. To answer this question it is first necessary to decide whether a court has the power to direct that assessments take place and the results embodied in the plan. It will then be necessary to assess whether the court - when scrutinising the plan - merely "rubberstamps" the plan or whether it can alter it.
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Before examining what powers a court has over the acceptance or otherwise of a care plan, it will be first necessary to decide whether a court can influence what goes into a care plan. That is to day, to question whether a court is bound to examine only the facts placed before it, or whether it can order tests or assessments to gain new evidence and for this to be incorporated into the care plan.
The starting point must arguably be the comments of Ward J. in C v Sollihill Metropolitan Borough Council [1993] 1 FLR 290, 302:
It is for the local authority to put all the material facts before the court... before inviting the court to pass to them the huge responsibility of the management of a full care order. The court should be slow to abdicate its responsibility until all the facts are known.
His Lordship's comments suggest that it is for the court to decide when sufficient facts are known, and to make a care order only when it believes that to be the case. However does this mean that a court can obtain assessments if it believes insufficient facts are known? Section 38(6) states:
Where the court makes an interim care order, or interim supervision order, it may give such directions (if any) as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child...
This would appear, at first sight, to allow a court to seek an order. However it will be seen that this conclusion is not as straightforward. The problems that this subsection has created is not so much from the words "medical or psychiatric examination" but from the very next words, "or other assessment of the child." This is principally because in most situations it is likely that the court and local authority would be in agreement over the need for a medical or psychiatric examination. Where conflict may arise is where a court believes that an assessment is not needed. One of the main points to come out of the Cleveland report was that a child should not be subjected to unnecessary medical examinations.
However the true conflict is whether the words "or other assessment" can be used to order a residential assessment. A residential assessment can be useful in deciding whether a parent is capable of retaining the care of the child but a major disadvantage of such an assessment is the cost. The Children Act 1989 is silent as to residential assessment and so if one could be ordered it can only be done so under s 38(6).
The Court of Appeal in Re M (Minors)(Care Order: Assessment) [1996] 2 FLR 464 decided that a court could not order a residential assessment. Swinton-Thomas LJ said (at 467):
The words "other assessment of the child" must, in my judgment, be read in the context and ejusdem generis with the words "medical or psychiatric examination of the child.".... [and do] not give the court power to give directions in relation to assessments of the mother or the family as a whole.
His Lordship sought support from his argument, from the presumption that a court cannot tell a local authority where a child, under a care order, may live. He stated (at 469):
Once an interim care order has been made under section 38(1) the care of that child has been entrusted to the local authority. The court has no power whilst the order is still in force to give a direction as to where the child will reside.
Butler-Sloss LJ concurred with Swinton Thomas LJ but stated (at 471) that she hoped that local authorities would listen to the court's advice on when an assessment should take place:
If the judge....feels that more should be done....(including, where appropriate, residential assessments) one would expect the local authority to pay very close attention to the views of the judge.
However her Ladyship's hope proved short-lived and in Re C (Minors)(Interim Care Order: Assessment) [1996] 2 FLR 708 the exact same issue returned to the Court of Appeal. Butler-Sloss LJ held that she was bound by the earlier ruling in Re M although she was clearly unhappy. She stated (at 714):
That decision is, in my view, binding on this court; the answer to this is clear and, on the facts of this case, produces an unhappy result.
Leave to appeal to the House of Lords was granted and for the first time their Lordships considered the issue in Re C (Minors)(Interim Care Order: Residential Assessment) [1997] 1 FLR 1. Lord Browne-Wilkinson gave the sole judgment and rejected the narrow construction approach to s.38(6) stating that it could be used to order a residential assessment because the court ultimately has the responsibility for deciding whether to make a care order. He stated (at 7):
I therefore approach the subsection on the basis that the court is to have such powers to override the views of the local authority as are necessary to enable the court to discharge its function of deciding whether or not to [make a care order].
Smith has attacked the judgment of the House as an unwarranted attack on the discretion a local authority has in care cases. Smith's first attack is that residential assessments are unnecessary:
Lord Browne-Wilkinson's comments about the importance of assessing the child's relationship with his parents are of course extremely apposite, but that is exactly what an `orange book' assessment sets out to do. (Smith 1997, p 250)
Smith's point has a degree of truthfulness in it. A fundamental part of the social workers' review is the relationship between parent and child. However, an `orange book' assessment is certainly not as intensive as a residential assessment, nor is it as impartial. A residential assessment would usually take place over a matter of weeks and those running the unit do not owe their allegiance to the local authority and as such, the parents are not tarnished by previous findings.
Smith then turns her attack to the discretion a local authority must have as to when to stop gathering evidence:
It must surely lie within a local authority's prerogative to decide when it has sufficient information to put before a court to determine what arrangements will be in a child's best interests. (Smith 1997, p 253)
Although it is correct to say that a local authority must be able to decide when it thinks it has sufficient evidence, it must be questioned whether a court has to accept that the evidence placed before it is sufficient. It was seen above that the ratio of Lord Browne-Wilkinson's judgment is that a court should decide to grant a care order only when it believes sufficient information has been gathered. His Lordship warned that the court must be able to decide when it has enough evidence before it (at 7):
To allow the local authority to decide what evidence is to go before the court at the final hearing would be in many cases, including the present, to allow the local authority by administrative decision to pre-empt the court's judicial decision.
A party can decide what evidence it wishes to lodge, but a court will listen to all the evidence. If it believes there is a gap, it must be for the court to decide whether this gap needs filling. If Smith's proposition was accepted then the concern of Lord Browne-Wilkinson would be realised: a court would become no more than a "rubber-stamping agency." The local authority would decide whether the threshold criteria is made out, draw up a plan on that basis and only present evidence which backed up their plan. A court would not be able to do anything but accept it. Although not mentioned in the House of Lords, the Court of Appeal noted that a residential assessment could be the last hope a parent has for rehabilitation:
[a parents] only hope of persuading a judge that a final care order should not [be] made....is to undergo a residential assessment. ([1996] 2 FLR 708 at 712)
A local authority should not be able to "block" what could be a parent's last chance. If a court believes that there is a possibility of rehabilitation, however remote, then a parent should always be given the chance because removal should be a measure of last resort.
Smith then argues that the current use of s 38(6) is an interference. She points out the comments of the Review of Child Law which stated:
Courts should determine the major issues such as the transfer of `parental rights and duties' and local authorities should make decisions on matters which are not susceptible to clear and unambiguous resolution. (Smith 1997, p 256)
Smith uses this to support her argument that assessments and residence should be left to the local authority, however the argument could easily be used to support the proposition formulated by Lord Browne-Wilkinson. It is up to the court to decide whether to make a care order or not. The decision of the court is based on the threshold criteria and the care plan. If a care plan calls for the children to be permanently removed from parental care, but the court believes that rehabilitation is a possibility, this must go to the question of whether to transfer parental responsibility. As such if a court decides to assess the possibility of rehabilitation by using a residential assessment this too must go to the transfer of parental responsibility and as such is a matter for the courts and not the local authority.
Smith refers to the decision in Re C, and the surrounding issues, as being a "war of jurisdictional battles" (Smith 1997, p 257). It is true that, unfortunately, this issue has shown the conflict between the courts and social workers. Smith, as a social worker, appears to have adopted the line that "social workers know best" and that a local authority should be allowed to look after children it believes need to be looked after. History has shown that social workers do not always know best. Parliament gave to the courts, the responsibility of deciding when a care order should be made. This is a discretion. It does not matter whether the threshold criteria have been met; if the court believes a care order should not be made then the judge has that discretion. Re C is simply an extension of this principle as it helps a judge decide on his discretion.
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The care plan is clearly an important document. Mr Justice Wall has said of it:
In my view, the importance the court attaches to the care plan is directly related to the structure of Part IV of the Children Act, which...renders both the court and the guardian ad litem functus officio once a care order is made. (Wall 1998, p 3)
This is an important point. If a care order is made then the local authority will assume parental responsibility for the child (Children Act 1989, s 33(3),) and the court will cease to supervise the arrangements made by the local authority. Indeed the area after the making of a care order has been referred to as the "forbidden territory" (Re S (A Minor)(Care: Contact Order) [1994] 2 FLR 222 at 226, per Simon Brown LJ) because the court must leave decisions regarding the welfare of the child to the local authority. This position should be contrasted with the procedure in existence before the Children Act 1989 was implemented, where many children remained Wards of Court and as such the Court retained supervision of the children (see Bevan 1989, chapter 8; Hunt 1993).
If the courts are to give up their supervision, they must be satisfied that the local authority is capable of assuming control of the child, and it has therefore been stated:
Local authorities should thus be left in no doubt at all that the care plan will in each case be subject to rigorous scrutiny. (Re J (Minors)(Care: Care Plan) [1994] 1 FLR 253 at 261, per Wall J.)
The court can be given great assistance in scrutinising the plan by relying on the guardian ad litem. Section 41, Children Act 1989 imposes a duty on the court to appoint a guardian ad litem for care proceedings (s 41(6)(a)) unless "it is satisfied that it is not necessary to do so in order to safeguard [the child's] interests" (s 46(1)). The primary duty of a guardian ad litem is to "safeguard the interests of the child" (s 46(2)(b)) and this is done, in effect, by advising the court independently (see Family Proceedings Rules 1991, SI 1991/1247, rule 4.11). The guide for guardians ad litem states that guardians are "expected to assist the court in its duty to scrutinise the local authority's plans." (DoH 1995, p 144)
Thus the court can subject the plan to close scrutiny, but what does this mean? Can a court compel a local authority to change their plan if the court disagrees with it? Plontikoff & Woolfson suggest the answer is no:
With the exception of contact, the court cannot compel the local authority to follow a particular plan, even where the guardian ad litem is not in agreement with the local authority view. (Plontikoff & Woolfson 1996, p 75)
Mr Justice Wall agrees with this view but notes it goes further:
There is in the [Children] Act nothing to stop a local authority changing its care plan radically, sometimes within days of the care order being made. (Wall 1998, p 8)
The Children Act 1989 not only fails to prevent such changes, it arguably encourages them because secondary legislation imposes a duty on local authorities to continually review the plan (see Review of Children's Cases Regulations 1991 (SI 1991/895), particularly paragraph 3). Case law would appear to confirm that the powers of a court are restricted. In Re S and D (Children: Powers of Court) [1995] 2 FLR 456 the Court of Appeal was asked to give advice to judges who disagree with the care plan. The Court stated:
[the judge] only has two alternatives: he may make a care order knowing that the local authority will then act in a way which he considers to be undesirable; or he makes no care order...([1995] 2 FLR 456 at 463, per Balcombe LJ)
Could there be any alternative to this? It may make a difference as to whether the alternative to the care plan is for rehabilitation or removal of the children, and as such these need to be considered separately.
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Perhaps the first possible way a court could interfere with a care plan to achieve rehabilitation would be to refuse to make a full care order. The Children Act permits the court to make an interim care order (section 38) which keeps the issues before the court. Could the court use interim orders to scrutinise the care of the child on a permanent basis?
The first issue to be resolved is whether the court has to reach a final decision. The leading case for interim care orders is Hampshire County Council v S [1993] 1 FLR 559 where it was held:
An interim order...will usually be required so as to establish a holding position...pending the final hearing. ([1993] 1 FLR 559 at 567 per Cazelet J)
This would appear to suggest that a court cannot permanently defer a final decision, a view supported by the Department of Health guidance which states "...the emphasis should be very firmly on pressing on to a final hearing..." (DoH (1991) para 3.46)
The purpose of an interim care order was set out by the Court of Appeal in Re G (Minors)(Interim Care Order) [1993] 2 FLR 839 as an order to preserve the status quo:
The making of an interim care order is an essentially impartial step, favouring neither one side nor the other, and affording to no one, least of all the local authority in whose favour it is made, an opportunity for tactical or adventitious advantage. (at 845, per Waite LJ)
Accordingly, it could be argued that an interim care order is in essence a temporary order, designed merely to keep the child safe. As has been noted, the order should only be used to maintain the status quo - and not, therefore, to make permanent decisions as to the welfare of the child. However the controversial case of Buckinghamshire County Council v M [1994] 2 FLR 506 possibly alters this slightly. The facts of this case were that the mother had five children, all of whom were the subject of care proceedings. The care plan called for the permanent removal of all the children but the judge decided that the youngest child, S, a two-year-old boy, could be rehabilitated with the mother. Accordingly a care order was made in respect of four of the children, and the judge made no order in respect of S.
The local authority appealed. The Court of Appeal upheld the judge's decision not to approve the care plan. However the court held that making no order would have ended the guardian's involvement and it would have been more appropriate to make an interim care order instead. It could not make a full care order (as this would have given absolute control to the authority), but neither could it make no order as the child needed protection. Making an interim care order allowed the court to take control of rehabilitation.
This ruling has been the subject of fierce criticism, principally from Hayes and Smith. Smith notes that:
The interim care order was not designed to maintain the status quo so that further information could be marshalled to inform the court's final decision... Thorpe J. makes it clear that the interim care order was made specifically for the purpose of enabling the court...to monitor and review the local authority's rehabilitation arrangements. (Smith 1997a, p 247)
Hayes agrees and states:
In my opinion it was a totally improper exercise of power by the court to couple an interim care order with a direction that the child should be placed at home; indeed, I take the view that the court had no jurisdiction to give such a direction. (Hayes 1996, p 207)
The criticisms of Smith and Hayes are that the Court of Appeal has used the interim care order not as a "holding" position but as a final resolution, and a method of giving the local authority parental responsibility for the child, while at the same time telling them what to do with it. Mr Justice Wall, however, disagrees with these criticisms and argues that the Court was not making a final order but "proposing a course of action which was to be reviewed at the end of three months." (Wall 1998, p 9) Wall J. then states that at the end of the three months the judge could either make a supervision order or allow the local authority to implement the care plan. (Wall 1998, p 10)
It is submitted that this is quite unconvincing. It is to be doubted whether the court would be in a position after three months to discharge the care order. If discharge is not possible, and the local authority still refuses to accept that rehabilitation is in the child's best interests, then what does the court do? It is settled law that a court cannot add a condition to a care order directing where the child is to live (see Re T(A Minor)(Care Order: Conditions) [1994] 2 FLR 423). Interestingly, in a case subsequent to the Buckinghamshire case (Re H (Care: Change in Care Plan) [1998] 1 FLR 193) Thorpe LJ appeared to suggest that a court could direct the type of care order it is making. When the court made a new order, Thorpe LJ said (at 195)]:
[the order] is now a care order that lies on the foundation of a revised plan... and rests upon the foundation...that these children are not again to be separated from their mother....
It should be noted that in Re H the local authority did alter the care plan to provide for rehabilitation, but what if they subsequently changed their minds again? Do the comments of Thorpe LJ amount to a direction - in which case it would appear to contradict Re T (above) - or is it just a warning that if this does occur, the court would be prepared to entertain an application to discharge the care order? It is likely that the latter is the true construction, which means that the dilemma in the Buckinghamshire case remains. Hayes puts forward three alternatives to the solution formulated by the Court of Appeal:
(1) make no order(2) make an interim residence order and couple it with a supervision order
(3) make a care order and a contact order directing the local authority to have staying contact with the child. (Hayes 1996, pp 208-209)
These suggestions are interesting and need to be explored.
The first option is to make no order under the principle enshrined in s 1(5). This would necessitate the court trusting the parents not to enforce their parental responsibility and remove the child. This is obviously a very big risk. If it reaches the point of deciding whether to make a care order or not, the threshold criteria contained in section 31(2), Children Act, must have been met, and, as such, can it be justified to put the child at risk? In the Buckinghamshire case this option was rejected, and this must be correct. Although making no order could be a useful test of seeing whether the parents can be trusted, the court would be risking significant harm to the child. It is submitted that it would be rare for such a risk to be taken. Making no order must be the least preferable option.
The second alternative Hayes proposes is an interim residence order combined with a supervision order. It is not within the remit of this article to discuss the advantages and disadvantages of a supervision order, suffice it to say that a supervision order will only give limited protection. Although the supervisor can attach conditions onto a supervision order (Schedule 3, paragraphs 2 and 3 of the Children Act 1989), a parent is only bound to obey if they consent to being bound (Re V (Care or Supervision Order) [1996] 1 FLR 776). However, section 11(7) allows a court to add conditions onto a section 8 order. These conditions are legally enforceable since breach is punishable as contempt (see Brasse 1998, p 260). However, it is clear that these conditions cannot relate to all aspects of parental responsibility; for example, they cannot be used to prevent a mother cohabiting with a particular person (see Re D (Minors)(Residence: Imposition of Conditions) [1996] 2 FLR 281). It is less clear whether they can be used to force a parent to live in a particular place. In Re E (Residence: Imposition of Conditions) [1997] 2 FLR 638 the Court of Appeal stated that s 11(7) could not be used for that purpose, but Re E related to a private application Butler-Sloss LJ said (at 642):
in public law cases involving local authorities; where a residence order may be made by the court in preference to a care order, s 11(7) might be applied in somewhat different circumstances.
which suggests that in public law cases it is possible that s 11(7) could be used in that way. In Re T (A Minor)(Care Order: Conditions) [1994] 2 FLR 423 the courts used s 11(7) imaginatively to prevent a father - who had allegedly sexually abused siblings of the child concerned - from sleeping in the same bed as the child. The Court of Appeal was conscious that it would be difficult to enforce such an order but argued that the family would be under rigorous scrutiny by the local authority because of the supervision order. This being the case, it would seem that using a conditional residence order and combining it with a supervision order may offer a solution to the dilemma created in the Buckinghamshire case, although cases such as Re D (above) show that the control is not absolute.
The third option Hayes puts forward is making a care order but then using s 34 contact in care orders to define contact and, ultimately, achieve rehabilitation (Hayes 1996, p 209). Contact in care orders could quite easily be an article by themselves, and because of the constraints one must make in an article such as this, it will only be possible to make a brief analysis of this possibility.
Section 34 could be used to phase rehabilitation by permitting staying contact to be steadily increased over a period of time until the care order can finally be discharged. Hayes argues that section 34 could be used to order rehabilitation even when the court disagrees with the proposed care plan:
the court [could] make an interim care order and, using its own motion powers, to couple it with a contact order directing the local authority to permit the child to have staying contact with his family... (Hayes 1996, p 209)
Brasse argues that this could go further and apply not only to interim care orders - as Hayes suggested - but to substantive orders too:
Section 34 could be used to set in train a rehabilitative programme which was contrary to the local authority's plan for the child in its care. (Brasse 1995, p 76)
Hayes is less sure:
Whether it is proper for a court deliberately to interfere in the care plan, for example, by ordering contact which would have the effect of frustrating the plans remains unclear. (Hayes 1996, p 210)
Ordinarily, the rule is that the courts may not interfere in the discretion of a local authority. This rule dates back to A v Liverpool City Council [1982] AC 363, but the courts have decided that this does not apply to contact issues (Re B (Minors)(Care: Contact: Local Authority's Plans) [1993] 1 FLR 543. On that basis, it would appear that a contact order would be one method of achieving rehabilitation, and as such could have been used as an alternative in the Buckinghamshire case. Smith believes that the use of section 34 contact in care orders, although legal, should be curtailed, as they are an infringement of the local authority's discretion:
I think the implications of this judgment for planning and social work practice are sufficiently clear to speak for themselves. Social workers must give serious attention to the court's ability to shape or frustrate their planning... (Smith 1997, p 169)
Yet this misses the point. Local authorities are not always right, and where they refuse to recognise that the permanent removal of a child from its parents is not in the best interests of the child, then a contact order may be the only way for a child to receive adequate protection while retaining the opportunity of rehabilitation into the care of his or her parents. It is vital that the courts are not deprived of the mechanism necessary to achieve this, and Parliament (through section 34) has left this firmly in the hands of the court.
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The previous section has examined the methods of influencing or controlling the implementation of the care plan in respect of rehabilitating the child to his or her parents, but what if the court does not wish rehabilitation but removal?
A situation such as this led to the decision in Re S and D (Children: Powers of the Court) [1995] 2 FLR 456. The local authority wished to rehabilitate two children with the mother even though the judge considered there to be a real danger of further harm. The judge made a supervision order and an injunction preventing the mother from removing the children from their foster parents. By the time of the appeal, further evidence of the mother's suitability had arisen and the local authority no longer wished to proceed with rehabilitation. The Court of Appeal showed relief at this but had to allow the appeal because the injunction was, in effect, a specific issues order, and section 9(5) of the Children Act prevents such an order being made if it interferes with the curtailment of the inherent jurisdiction as defined in s 100(2). However the court did so reluctantly saying:
It was a misfortune that the Children Act 1989 did not allow the judge to achieve the result which he considered right, and which we with hindsight can now see to be right...([1995] 2 FLR 456 at 465, per Staughton LJ)
However, what would have happened had the local authority not agreed that rehabilitation was no longer desirable? It is submitted that this would not have changed anything - the court would have had no option but to allow the appeal. This shows the perversity of the strict rules enshrined in the Children Act. Parliament gave to the courts the responsibility for deciding whether parental care has caused, or is likely to cause, significant harm and if so, whether to remove the child from that care. Yet the Act has tied the hands of the court in situations like Re S and D. The court is placed in the situation where if they do make the care order the child will still be harmed. Although care proceedings invariably attract the risk of harm, in situations such as Re S and D the harm is almost guaranteed.
Hayes suggests that the only solution is to allow a court to direct who should not be allowed to look after the child:
The difference of opinion which occurred in Re S and D...raises [the question] whether courts should be given the power to make a care order with a condition that the child should not be placed in the care of a specified person. (Hayes (1996) p 212)
This would be a significant alteration to the present position. Parliament has decided that under the Children Act the court's involvement should end at the making of the care order, and that it should be for the local authority to decide what the arrangements for that care should be. Hayes' proposal would take a large section of this discretion away. Indeed in circumstances such as Re S and D it would lead to a complete reversal of the care plan; the local authority would be bound by a plan they disagreed with. Hayes criticises the ruling in Buckinghamshire County Council v M [1994] 2 FLR 506 because it would bind the local authority to a care plan which they disagreed with, (Hayes 1996, p 207) yet her suggestion to solve Re S and D would do the same. That said, the advantages of this proposal would outweigh the disadvantages. It cannot be right that a court has no option but to sanction a procedure which it knows will cause harm; leaving the court powerless to do anything until that harm arises.
But if it is acceptable to alter the Children Act to permit a discretion as to who should not have residence of the child, would it not be acceptable to allow a care order which states who should have residence?
Obviously, one of the immediate problems that this would bring is that, in many cases, there will be a number of short-term placements before finding a permanent substitute family. But, where these circumstances do not arise, it could be argued that a court should "vet" the carers of a child. At present some judges do consider the prospective family when they consider the care plan. Smith thinks this is inappropriate:
I think that a court's insistence on evaluating the suitability of substitute carers and the appropriateness of a particular match, goes well beyond its brief and arguably takes judicial authority into that area of detailed professional work and decision making which Parliament intended to leave within administrative control. (Smith (1997) p.173)
But why? Removing a child is a very serious step; it should only be done if the parents cannot look after the child, and if the standard of care the child would receive in local authority care would be better, and would actively contribute to safeguarding the child's welfare. If a court has to make this decision it is not unreasonable for it to scrutinise whether the proposed family can offer better care. Smith argues that the choosing of parents should remain firmly in the hands of the authority and should not be subject to the review of the courts. The Department of Health disagrees: a recent circular states:
By the date of the final hearing for a care order, the following should have been achieved:
(a) prospective adopters have been identified.
(LAC (98) 20, para. 31)
Why would prospective adopters be identified before the date of the final hearing if it were not permissible for the courts to scrutinise their choice and assess whether the "new" family would be appropriate?
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There is an acceptance that a proportion of care plans - albeit a minor proportion - either go wrong, or are not implemented by the local authority. The question, is what can be done about this? In the majority of these situations discharging the care order is unlikely to be an option. Mr Justice Wall argues that the law needs to be changed:
the objective [of any change] is for the court to be satisfied that the care plan upon which the child was placed in care is being properly implemented. (Wall 1998, p 10)
His Lordship proposes using the guardian ad litem to ensure this:
one proposition which appeals to me is for the judge in an appropriate case... to be given the power to extend the appointment of the guardian ad litem... [who could] restore the matter to the court if the care plan was not being implemented appropriately. (Wall 1998, p 11)
Leadbetter - a Director of Social Services - argues that such a review is not necessary and could even be counterproductive:
Social services departments...are the most inspected and externally audited of organisations...yet here we propose...that guardians monitor cases for perhaps six to twelve months and that judges have the power to recall and review care plans. (Leadbetter 1998, pp 65-66)
Although it is true to state that local authority departments are subject to rigorous scrutiny, most of these relate to general principles and not to individual cases. Why should the court not be entitled to ask the local authority to justify its non-implementation of a care plan? The court decides to make a care order on the basis that the welfare of the child will be safeguarded by the proposed action contained in the care order: that the treatment a child will receive under local authority care is better than the care they have received / will receive under parental care. If the local authority decide not to implement their plan, then the courts should be entitled to decide whether the new plan is also in the best interests of the child.
The Department of Health proposed that a review should be permitted but that the "review power [of the court] be limited to endorsing a new care plan." (Poyser 1998, p 53) The usefulness of this has to be questioned. There is little or no point in bringing a case back to court if all the court can do is "rubberstamp" the new care plan. What if the plan is contrary to the best interests of the child? What would the court's options be then? Under the Department of Health plan the court can presumably only register its displeasure; the study does not envisage giving the court power to do anything else. This could create a position where the tensions between a local authority and court are strained even more so than at present. Mr Justice Wall argues the court needs to have extra powers:
In my view the judges in such circumstances would have to be given the power to require the local authority either to put forward a fresh care plan or to direct the local authority were to place the child. (Wall 1998, p 11)
This would be a significant change to the ethos introduced by the Children Act 1989, indeed it would seem more in tune with the wardship jurisdiction than the Children Act. The authority Wall J appears to be seeking would be one that allows the court to order the local authority to implement the plan. Careful thought needs to be given before permitting such a power. This will inevitably mean that the courts will be critiquing social work decisions. This need not be too troublesome, however, as the judge would have the guardian ad litem to advise him. The main problem would be sanction. If a court is to be permitted to order the implementation then some sort of sanction needs to be provided for so that the order can, if necessary, be enforced. But what would the sanction be in such circumstances? If it is a financial penalty or order for compensation, is this not depriving either the child concerned, or other children looked after by local authorities, the resource which the financial penalty must equate to? Indeed, in what circumstances would the sanction be applied? If the local authority argued that they could not follow the care plan because of a lack of resources (and it is known that the resources of social services department are finite), then what can the court do?
These problems are, however, not insoluble, although a considerable amount of inter-agency / inter-disciplinary consultation will be required. The position, at present, is unsuitable but a "quick-fix" potentially could be even worse. It will, of course, ultimately be up to Parliament to decide on any post-order review but it is to be hoped that professional inter-disciplinary committees will be involved in the consultation process too.
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The care plan is a vital document. Its exclusion from the text of the Children Act 1989 was unfortunate, but there is no need to retrospectively add it (as the Adoption Bill 1996 proposed), as it is accepted that a local authority must draw up a care plan before the court would be prepared to make the final care order. Whether a court can interfere with the care plan drawn up by the local authority is highly controversial. There may not appear to be any legislative authority for amending the plan, but if the courts do not believe it is in the best interests of the child then they can use the welfare principle enshrined in section 1 as their justification for rejecting the plan.
There is a considerable difference between the powers a court has to rehabilitate a child with its parents, and the powers the court has to remove a child from its parents. This is perhaps because the Children Act was, partially at least, designed to ensure that children are removed from parental control only when it is absolutely necessary. The courts, through the imaginative use of interim care orders and section 34 contact in care orders, have ensured that they retain the power to order rehabilitation when necessary. No such power exists when the court wishes to remove the child. In at least one case the court was faced with the dilemma of having to make a care order on a basis which the judge thought would guarantee future harm to the child. Mr Justice Wall has argued that this is not an uncommon experience, yet the Children Act restricts the powers of the court. It is submitted that this position must be changed: the court must be permitted to safeguard the welfare of the child. Mary Hayes suggests one method of solving part of this problem, while Mr Justice Wall suggests another method. Both are interesting suggestions and careful thought needs to be given as to whether they should be implemented. For this to be effective it is necessary for the change to be brought about by inter-disciplinary consultation. It is to be hoped that the Government will set up such a body, and a change will, in time, be made.
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Howard, H (1997) `Key Notes' 11 Practitioner's Child Law Bulletin 1
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Smith, C (1997a) `Judicial Power and Local Authority Discretion - the Contested Frontier' Child and Family Law Quarterly 243.
Wall, Hon. Mr Justice (1998) `Care Plans: A Judicial Perspective' in Thorpe, Rt. Hon. Lord Justice and Clarke, E (eds) Divided Duties (Bristol: Family Law).
