W & Ors (Children), Re

The Children Act 1989 is compatible with Convention rights, but its application must protect family life and access to a court. A final care order should be deferred where a care plan is insufficiently mature and a relatively brief period is likely to resolve a vital uncertainty.

Exceptionally, fundamental elements of a care plan may be identified for reporting. This is justified only where non-fulfilment creates a real risk of violating Convention rights. A material failure may then be referred to the guardian or court. The court must preserve the local authority’s responsibility for implementation and avoid routine supervision.

Two appeals concerned the division of responsibility between the court and a local authority under the Children Act 1989 following the commencement of the Human Rights Act 1998.

In the Torbay proceedings, Her Honour Judge Sander made final care orders after approving a detailed plan for rehabilitation of two children to their mother. Important services promised in that plan subsequently failed or were delayed. In the Bedfordshire proceedings, His Honour Judge Hamilton considered the care plan inchoate and wished to await important developments, but understood existing authority to require a final care order.

The central issue was whether Convention rights required adjustment of the established boundary between judicial decision-making and local-authority implementation of care plans.

1. The Torbay appeals were dismissed and the Bedfordshire appeal was allowed unanimously. The Bedfordshire final care order was replaced by an interim care order and the proceedings were remitted to Judge Hamilton. Permission to appeal was refused.

2. Per Thorpe LJ, with Sedley LJ and Hale LJ agreeing, there was no fundamental incompatibility between the Children Act 1989 and the Human Rights Act 1998. The difficulty arose from the previous judicial construction and application of the statutory scheme. A care order and its implementation must comply with the procedural protection of article 6 and the requirements of legality, legitimate aim and proportionality under article 8.

3. The court may make an interim care order where a care plan is inchoate or a relatively brief period is likely to resolve an important uncertainty. Existing authority should no longer be treated as preventing that course in an appropriate case. The power must not become a means of routine judicial supervision or a device for avoiding inevitable or chronic uncertainty.

4. Where a fundamental element of a care plan creates a real risk of violating Convention rights if it is not fulfilled, the court may identify that element for reporting. Hale LJ described this as “starring” a vital element. A failure within the envisaged timescale may require notification to the guardian or the court, so that an appropriate application can be considered. This limited safeguard does not transfer the management of the child’s care from the local authority to the court.

5. A fundamental failure to implement a care plan may breach the child’s article 8 rights. This may occur where continued separation ceases to pursue a legitimate aim or where the state fails to take reasonable and appropriate steps to provide a permanent substitute family for a child deprived of family life. Ordinary or unavoidable failures do not suffice.

6. Sections 7 and 8 of the Human Rights Act 1998 permit proceedings against a local authority and appropriate relief where implementation is unlawful. Such proceedings should ordinarily begin in the court which made the care order, subject to transfer and jurisdictional limitations. The reporting safeguard remains necessary because a young child may have no effective person able to initiate proceedings.

7. The Torbay judge had properly approved a comprehensive care plan and was entitled to make final care orders. Subsequent failures did not invalidate those orders, although a Convention claim might arise if matters became sufficiently grave. The Bedfordshire plan lacked important information and presented a real risk of disproportionate interference. The judge should therefore have retained the case under an interim order.

• Court of Appeal (Civil Division): In W & B (Children), the appeals against Her Honour Judge Sander’s final care orders were dismissed. In W (Children), the appeal against His Honour Judge Hamilton’s final care order was allowed, an interim care order was substituted, and the case was remitted. [2001] EWCA Civ 757
• Plymouth County Court: Her Honour Judge Sander found physical, sexual and emotional abuse, approved a rehabilitation care plan and made final care orders.
• Luton County Court: His Honour Judge Hamilton found that immediate return was unsafe and, believing himself bound by existing authority, made a final care order despite the immature care plan.