Natalie Cross looks at what needs to happen where parents seek to challenge a change to a care plan where the earlier plan (i.e. remaining at home) has already been approved by the court when the final order was made.
Many of us are familiar with the case of GM v Carmarthenshire County Council v LLM  EWFC 36 - a case relating to the discharge of a care order and whether a child can be rehabilitated to family following a period in foster care. Yet what happens when a local authority subsequently changes its final care plan from placement at home to removal when the final order has already been made?
Strictly speaking, with the existence of a care order and accompanying parental responsibility, the local authority has the legal authority to carry out its plan. However, the approach to be taken by any parent faced with such a change in care planning is clear.
The case of Re DE (Child) (Care order: Change of Care Plan)  EWFC 6 lays down a protocol where parents seek to challenge a change to a care plan where the earlier plan (i.e. remaining at home) has already been approved by the court when the final order was made:
a) Where a care order is made with a child remaining at home, there should be a term in the care plan and a recital in the order that the local authority agrees to provide not less than 14 days' notice if the plan changes to removal, save in the case of an emergency (it is crucial to ensure these provisions are properly inserted).
b) Where the plan is removal, the local authority must have regard to the fact that permanent placement outside of the family should be the last resort, that nothing else will do, and there should be a rigorous analysis of all realistic options. Parents must be properly involved in the decision-making process.
c) Alongside an application to discharge the care order (which is a remedy for the parents), a parent should consider whether to apply for injunctive relief under section 8 Human Rights Act 1998. This is because the discharge application would not provide interim relief, whilst an injunction would prevent the local authority from removing in the interim. If so, that application should be issued at the same time as the discharge application.
d) If the local authority receives a discharge application, it must consider again whether welfare necessitates immediate removal, the same test as in Re LA (Children)  EWCA Civ 822. There should be a written record and justification for this (and this should be requested should it be omitted from the social work statement). Consultation must again take place with the parents. If the local authority removes a child where immediate removal is not warranted, or has not properly considered or consulted the issues, it may be acting contrary to Article 8 of the European Convention on Human Rights.
e) When the court receives a discharge application, the gatekeeper should consider whether injunctive relief has been, or is likely to be, sought. This is because automatic legal aid is not available to parents on discharge applications and so they may be acting in person. Combined, these factors may require careful thought as to allocation and the listing of an early hearing.
f) Where the court hears an application for an injunction, it should normally grant it unless the child’s welfare demands the need for immediate removal (emphasis added).
For local authorities, it is essential the procedure is followed to avoid criticism. The procedure has more recently been affirmed in Re S  EWCA 2512 (Civ).
Similarly for parents’ practitioners, it is vital that protection is afforded at the conclusion of the substantive proceedings, as well as casting a watchful eye over the way in which the local authority has decided and then acted upon the change in care plan in order to ensure the proper approach has been followed (subject of course to a practitioner either securing legal aid after the final order or working pro bono).
Natalie Cross is a barrister at St Ives Chambers.