In re S (Minors) (Care Order: Implementation of Care Plan)

The House of Lords considered whether the Court of Appeal was entitled, by reference to section 3 of the Human Rights Act 1998 and sections 7–8, to develop a "starring" procedure and to enlarge the use of interim care orders under the Children Act 1989. The Law Lords held that the Children Act embodies a clear division of responsibility: once a care order is made parental responsibility passes to the local authority and the court has no general supervisory role. The Court of Appeal's "starring" innovation would have created a supervisory power inconsistent with that scheme and so could not be read into the Act under section 3. Sections 7 and 8 do not authorise the pre-emptive obligations on local authorities envisaged by the starring system. The Lordships also analysed compatibility of the Children Act with articles 6 and 8 of the Convention and identified some limited theoretical gaps (for example, remedies for young children without anyone to represent them), but concluded no declaration of incompatibility should be made in these appeals.

This litigation combined two unrelated care proceedings (Torbay and Bedfordshire) and reached the House of Lords on appeal from the Court of Appeal. Torbay involved three children following findings of sexual and physical abuse by their father and failure of the mother to protect them; final care orders were made by the county court. The mother complained that, because the local authority failed to implement essential elements of the care plan, the trial judge should have made interim rather than final care orders and sought a remedy under the Human Rights Act 1998. Bedfordshire concerned two boys removed into care; the trial judge made care orders despite uncertainties about a proposed placement with maternal grandparents overseas. The Court of Appeal (which heard the appeals together) introduced two notable innovations: (i) guidelines to broaden the circumstances in which interim care orders may be made; and (ii) a novel "starring" procedure elevating certain care-plan milestones to trigger reporting and court review if not met.

Nature of the applications: appeals against the Court of Appeal's reasoning and orders; in Torbay the mother also appealed seeking interim relief and/or a declaration of incompatibility under section 4 of the Human Rights Act 1998.

Issues framed by the House of Lords:

• whether the Court of Appeal was entitled to read into the Children Act a power to "star" milestones so as to impose ongoing reporting and supervisory obligations on local authorities under section 3 of the Human Rights Act 1998;
• whether sections 7 and 8 of the Human Rights Act could be used to support the starring system;
• whether the Children Act 1989 is incompatible with articles 6 or 8 of the European Convention on Human Rights; and
• whether the Court of Appeal had been right to broaden the use of interim care orders.

Reasoning and conclusions: The Law Lords affirmed the Children Act's "cardinal principle" that once a care order is made parental responsibility is vested in the local authority and the court has no continuing supervisory role except in narrow statutory or inherent-jurisdiction exceptions (for example, section 34 contact disputes, discharge under section 39, judicial review). Section 3 of the Human Rights Act obliges interpretation so far as possible to be Convention-compatible, but it does not permit courts to attribute meanings that depart substantially from fundamental features of primary legislation; doing so would amount to amendment, a matter for Parliament. The starring system would create a new supervisory regime with practical and resource implications that Parliament must consider; it could not be justified by section 3. Sections 7 and 8 provide remedies for unlawful acts by public authorities but do not confer a general power to impose pre-emptive reporting obligations on local authorities where no Convention breach has been established. On articles 6 and 8 the Lords explained that the Children Act provides mechanisms (case reviews, duties under sections 22 and 26, statutory complaint procedures) and that failures by authorities produce liability under the Human Rights Act; although theoretical lacunae exist (notably for young children lacking anyone to act on their behalf), these did not justify declaring the Act incompatible in these appeals. The Lords rejected the starring innovation, allowed appeals challenging that innovation and (on other points) allowed the Bedfordshire appeal to the extent the Court of Appeal had replaced the care order with an interim order, but dismissed the mother's challenge in Torbay to substitute an interim order for the existing care order.

Appeals allowed in part. The House of Lords held that (i) the Court of Appeal exceeded its interpretative powers under section 3 of the Human Rights Act 1998 in introducing the "starring" supervisory procedure into the Children Act 1989 because that innovation departed materially from the Act's fundamental division of responsibility and would amount to judicial amendment; (ii) sections 7 and 8 of the Human Rights Act do not authorise the pre‑emptive obligations on local authorities inherent in the starring system; (iii) the Children Act is not to be declared incompatible with articles 6 or 8 on the facts of these appeals; and (iv) guidance on the use of interim care orders should remain within the established statutory scheme and existing case law. The Torbay mother's appeal to substitute an interim order was dismissed; the Court of Appeal's starring order was set aside; the Court of Appeal's approach to interim orders in Bedfordshire was accepted insofar as it required more careful use of interim orders, but wider innovations were rejected.

Plymouth County Court (Judge Sander) — trial and findings of fact (1 November 2000); Luton County Court (His Honour Judge Hamilton) — trial and judgment (11 December 2000) in Bedfordshire; Court of Appeal ([2000] EWCA Civ 757) — heard the two appeals together and introduced the "starring" procedure and broader interim-order guidance; appeals to the House of Lords ([2002] UKHL 10) — House of Lords allowed the Secretary of State for Health's and Bedfordshire council's appeals against the Court of Appeal's innovations and dismissed the mother's challenge in Torbay insofar as she sought to convert the final care orders into interim orders.