In re S (FC) In re S and Others In re W and Others (First Appeal (FC) In re W and Others (Second Appeal (Conjoined Appeal)

A final care order transfers responsibility for the child’s care to the local authority. The court has no continuing supervisory role and cannot impose a system requiring reports when specified care-plan milestones are missed.

Section 3 of the Human Rights Act 1998 requires legislation to be read compatibly with Convention rights so far as possible. It does not permit a meaning which substantially departs from a fundamental feature of the statutory scheme and amounts to amendment.

An interim care order is a temporary holding measure. It may continue while unresolved matters prevent a properly informed decision about the child’s best interests, but cannot be used to supervise the authority after a final order should otherwise be made.

The conjoined appeals concerned care orders for two children in Torbay and two children in Bedfordshire. In Torbay, final care orders were made on a plan for rehabilitation with the mother, but the local authority then failed substantially to implement that plan. In Bedfordshire, final care orders were made although the proposed placement with the maternal grandparents and other aspects of the children’s future remained uncertain.

The Court of Appeal, in [2000] EWCA Civ 757, introduced two innovations. It encouraged wider use of interim care orders where care plans remained insufficiently developed. It also devised a system under which essential care-plan milestones could be “starred”, requiring a progress report and possible renewed court involvement if a milestone was missed. The Torbay appeal was dismissed, while the Bedfordshire final orders were replaced by interim orders and the case was remitted.

The Secretary of State for Health and Bedfordshire appealed against the Court of Appeal’s reasoning on those innovations. The Torbay mother appealed against the substantive order. The central questions were whether the starring system could be justified under the Human Rights Act 1998, whether the Children Act 1989 was incompatible with articles 6 or 8, and when an interim rather than final care order was proper.

1. Disposition. Lord Nicholls of Birkenhead delivered the leading speech. Lord Mackay of Clashfern, Lord Browne-Wilkinson, Lord Mustill and Lord Hutton agreed with his reasons and proposed orders. The House unanimously dismissed the Torbay mother’s appeal, allowed the Secretary of State’s and Bedfordshire’s appeals concerning the starring system, and set aside Judge Sander’s starring order of 2 July 2001.

2. No judicial supervision after a final care order. Per Lord Nicholls, the Children Act 1989 deliberately places responsibility for a child’s care with the local authority after a care order is made. The court acts as the gateway into care but retains no general monitoring or supervisory role. The proposed starring system would impose future reporting obligations and enable renewed judicial intervention. It would therefore breach the fundamental statutory boundary between the court and the authority.

3. Limits of compatible interpretation. Per Lord Nicholls, section 3 of the Human Rights Act 1998 is obligatory, retrospective and not dependent upon ambiguity. Its reach nevertheless remains interpretative. A meaning which substantially departs from a fundamental feature of an Act, particularly where it has important practical and resource consequences that a court cannot evaluate, crosses into legislative amendment. No provision of the Children Act 1989 could support the starring system. Sections 7 and 8 likewise authorise remedies only for an actual or proposed unlawful act against a victim; they do not authorise prophylactic supervision where no Convention breach has been found or proposed.

4. Convention compatibility. Per Lord Nicholls, failures in the implementation of a care plan may render continuing interference with family life disproportionate or make the authority’s decision-making process unfair. Such operational failures do not make the Children Act 1989 itself incompatible with article 8. A failure to provide an effective remedy is a matter for article 13, which is not a Convention right incorporated by section 1(1). Sections 7 and 8 ordinarily provide a domestic remedy for an article 8 violation. Article 6 may require a high degree of judicial control over care decisions fundamentally affecting retained civil rights, and difficulties may arise for an unrepresented young child. The latter problem was a statutory lacuna, not statutory incompatibility. The wider question whether conflict with the scheme of the Act could support a section 4 declaration was left open. No declaration was appropriate because the Torbay mother had suffered no violation of article 6.

5. Interim care orders. Per Lord Nicholls, an interim care order is a temporary holding measure pending the point when the court can decide whether a final care order serves the child’s best interests. A limited, planned and purposeful delay is proper where an uncertainty must, or sensibly can, be resolved before that decision. Ordinarily, however, uncertainties arising during implementation belong to the local authority. The court should have a sufficiently firm and particularised care plan to provide a reasonably clear picture of the foreseeable future, while respecting the statutory principle that delay is likely to prejudice welfare. Judge Sander was entitled to regard the Torbay plan as clear and to give the children the security of final orders.

• House of Lords: In [2002] UKHL 10, the House unanimously rejected the starring system, set aside the order of 2 July 2001 and dismissed the Torbay mother’s substantive appeal.

• Court of Appeal: In [2000] EWCA Civ 757, the court dismissed the Torbay appeal but referred the care plan for starring. It allowed the Bedfordshire appeal, substituted interim care orders and remitted the case. It also formulated the starring procedure and guidance on wider use of interim orders.

• County Courts: Judge Sander made final care orders in the Torbay proceedings on 1 November 2000. Judge Hamilton made final care orders in Bedfordshire on 11 December 2000. Following remittal, he made fresh final care orders on 24 October 2001 without opposition.