Resistance is futile?

RCJ portrait 146x219Che Fung Choi examines the ability of local authorities to resist a court’s decision on the appropriate order for a child, in the light of a major Court of Appeal ruling.

The question as to what a local authority can do when it disagrees with the Court’s decision on the appropriate care plan and order for a child crops up every now and again. The extent that a local authority can resist the Court’s decision has been clarified by the Court of Appeal in the recent case of Re W (A Child) [2013] EWCA Civ 1227.

Care proceedings were initially started in relation to W as a result of allegations from the mother about being assaulted physically and sexually by those closest to her. The allegations were later withdrawn by the mother, which caused concern for whether the mother was able to protect the child from potential harm. The mother and baby lived with the maternal grandmother before the care proceedings and they were moved into a mother and baby foster placement when proceedings started.

A 10 day fact finding hearing concluded that the allegations were false and that the mother had lied, which led to the instruction of a psychologist to explore the mother’s behaviour. The opinion was that the mother’s lying would seriously impact upon the baby’s emotional wellbeing and the mother’s ability to meet the baby’s needs in the future. The mother continued to make allegations against others, which led to further fact finding hearings. The mother was again proved to have made false allegations and had in fact been the perpetrator of violence without provocation on one occasion. The psychologist continued to be instructed in the proceedings and provided a further opinion that the mother’s behaviour made the risk to the baby unmanageable. The mother would need meaningful support to help her become more “normal”.

The Court’s concern from this was that:

  • the baby would not be protected from the mother’s behaviour;
  • the mother would be a bad role model with the baby developing with the idea that the mother’s behaviour was normal;
  • the baby could be caught up in the mother’s sudden violent outbursts; and
  • that the baby could be used in the mother’s behaviour.

The difficulty for the local authority was that the baby had thrived and it was recognised by all that the mother had provided quality care. In recognition of this the local authority felt that a Supervision Order would provide the level of protection needed.

The Court differed from the local authority and came to the decision that a Care Order was required so that the local authority could share parental responsibility, but with the baby remaining in the mother’s care. The Court felt that this would be the only way for the local authority to put in sufficient boundaries to protect the child. The Court also expected some form of mental health support to be provided alongside social work supervision. The local authority was asked to reconsider and change its care plan twice by the Court. The local authority refused to change its care plan on the basis that it could not see any short term risk to the child and the mother was able in providing care to the child.

The Court made the Care Order despite the local authority’s resistance. The mother appealed this decision, which was supported by the local authority, but opposed by the Children’s Guardian and other parties.

The appeal was allowed on the basis that the lower judge had not got (through the local authority’s resistance) the necessary information on the practically available services for the different options and therefore the decision was flawed. The Care Order was replaced with an Interim Care Order and sent back to the lower court for a further hearing on the appropriate care plan and final order.

Lord Justice Ryder gave the main judgment in the appeal. He was very critical of the local authority’s stance, which was to not respect the Court’s decision and went on to detail the following principles:

  • A local authority only makes the decision whether to issue care proceedings.
  • One the application is made the Court is fully in charge about what final order is made.
  • A local authority cannot simply withdraw proceedings without the Court’s permission.
  • Local authorities must provide information about the services and support that can practicably be put in place with each different placement option.
  • Where there is an impasse between the Court and the local authority and the Court has all the information to make a final decision, it is inappropriate to make interim care orders to supervise a local authority and must make a final order.
  • The Court can make a Care Order when the local authority ultimately seeks a Supervision Order. It is also true that the Court can make a Supervision Order when the local authority seeks a Care Order.
  • The Court can direct a particular care plan even if the local authority does not agree with the care plan.
  • The proportionality of a placement and an order is for the Court, not the local authority or the guardian.
  • A local authority must respect the Court’s decision and comply with Court orders.
  • If the local authority disagrees with the order made then it must appeal the decision.
  • If a local authority will not implement a care plan required by the Court then it will open itself up to judicial review proceedings being brought.
  • Once care proceedings finish changes to a care plan can only be done through reviews with the IRO.

Although Lord Justice Ryder states at the beginning of his judgment that he had in mind the Children and Families Bill, the case fits uncomfortably with the idea in the Bill that the Court is not to scrutinise the detail of a care plan. Another layer of thinking is added onto the consideration of placement options with the requirement to identify practical services and support that can be put in place for each.

A further interesting point that his lordship emphasises is that care proceedings are quasi-inquisitorial in nature and that no one party is required to prove anything. It is for the Court to have the relevant evidence and information to make its findings.

Frequently at Court those representing parents (and judges) will state that it is for the local authority to prove its case without seeing the need for real co-operation to obtain the relevant information. His lordship’s approach remains at present more of an aspiration.

Che Fung Choi is a Senior Solicitor and Solicitor-Advocate (all higher courts) at Kent Legal Services. He can be contacted on 01622 694707 or by This email address is being protected from spambots. You need JavaScript enabled to view it..