Impasse! Where the court and the local authority disagree on the care plan

The Court of Appeal has recently revisited the problem of where the court and the local authority disagree on the care plan. Rebecca Cross examines the judgments.

Two recent Court of Appeal cases – Re T-S Children [2019] EWCA Civ 742 and a Birmingham case Re T [2018] EWCA Civ 650 where St Ives barrister Nina Bache was acting for the child through his guardian – give guidance when the judge and the local authority cannot agree over the care plan. The following points are pertinent:

  1. The judge and the LA have different spheres of responsibility.
  2. The responsibility for making orders rests with the court.
  3. The responsibility for preparing and then implementing Care Plans belongs to the LA.
  4. Before a CO can be made the LA has to satisfy the court that the section 31 criteria are satisfied.
  5. The court has then to be satisfied that a CO is in the child’s best interests. In order to do that the court must rigorously scrutinise the care plan, because once the court has made a CO the responsibility for implementing and managing the order passes to the LA.
  6. Where the judge accepts that a CO is in the child’s best interests but does not agree with the care plan e.g. because the LA plan is long foster care and the judge believes that the child should be placed with a family member, the judge should analyse the welfare issues raised by the evidence and the LA care plan and adjourn (probably with a further ICO) to allow the LA time to reconsider.
  7. The court and the LA must use their best endeavours to achieve sufficient common ground in relation to the care plan and final orders.
  8. There is a need or mutual respect and engagement between the court and the LA.
  9. The court should give appropriate directions for the next hearing and may wish to ask for further statements/evidence to be filed in response to his/her analyse of the welfare issues.
  10. The court might require the ADM or other senior member of the SW team to attend the adjourned hearing.
  11. If after this process, the impasse remains, the court may have to choose between the “lesser of two evils” OR contemplate a formal challenge to the LA decision making through judicial review.

In practice in this impasse situation:

  1. To make no order would leave only the parents with parental responsibility, when the court has found that would not be in the child’s best interests and probably would expose the child to risk.
  2. To make CAO supported by a SO would not provide the child or the placement with the support required to maximise the stability of the placement.
  3. To make a CO, when the court does not agree that the plan is the right one for the child, exposes the child to possible risk and goes against the section 1 CA criteria.

A further point emerges if the LA care plan is adoption, but the court finds that the test for adoption “nothing else will do” is not made out.

That was the situation in Re T where the LA plan was for the child to be placed for adoption but the judge found that the best outcome was that he should live with his paternal grandmother, under a CO. When the LA failed to change the plan the judge made a placement order. The CA observed that such an order would result in the child being sent for adoption as a result of a decision of a non-court body (the Panel supported by the Agency Decision Maker) an “outcome unprecedented in modern times ….” 

On appeal by the grandmother, the Court of Appeal allowed the appeal and ordered a re-hearing before a new judge, limited to a consideration of the grandmother’s position.

Other useful authorities are: -

  • Re T (A Minor) (Care Order: Conditions) [1994] 2 FLR 423
  • RE CH (Care or Interim Care Order) [1998] 1 FLR 402
  • Re W (A Child) (Care Proceedings: Court’s Function) [2013] EWCA Civ 1227
  • Re S and W (Care Proceedings) [2007] EWCA Civ 232 2 FLR 275

Rebecca Cross is a barrister at St Ives Chambers. She can be contacted on 0121 236 0863 or This email address is being protected from spambots. You need JavaScript enabled to view it..