Local Authority v MS

Convention-rights arguments arising during pending care proceedings should normally be determined within those proceedings by the court already hearing them, including a family proceedings court. A separate application under sections 7 and 8 of the Human Rights Act 1998, or judicial review proceedings, should generally be avoided while the care proceedings continue. A court exercising the statutory jurisdiction under Part IV of the Children Act 1989 may approve or refuse a care plan, but cannot dictate its contents. Human rights arguments do not, by themselves, justify transferring a case to a higher court or invoking the inherent jurisdiction. Only genuinely novel or complex issues may require High Court determination, and procedures must protect the child’s right to a speedy conclusion.

Care proceedings concerning a child had begun in the Inner London and City Family Proceedings Court. The local authority’s care plan proposed adoption. The mother challenged the decision-making process, the fairness of the final hearing, the merits of adoption and delay in implementing the plan. She sought relief under the Human Rights Act 1998 and the High Court’s inherent jurisdiction, including an order requiring a concurrent search for long-term foster carers.

The family proceedings court transferred the mother’s application to the Principal Registry, and the matter came before the High Court for directions. The central issue was whether Convention claims arising while care proceedings remained pending should be dealt with separately in the Family Division or within the existing care proceedings.

1. Jurisdiction under the Children Act. A court exercising the statutory jurisdiction under Part IV of the Children Act 1989, including the High Court, has power only to approve or refuse the local authority’s care plan. It cannot dictate the contents of that plan. The inherent jurisdiction cannot be used to compel a public authority to exercise its discretion in a particular way.
2. Human Rights Act claims during pending proceedings. Section 7(1)(b) of the Human Rights Act 1998 enables Convention rights to be relied on in any legal proceedings. The family proceedings court therefore has jurisdiction, and a duty under section 6(1), to give effect to Convention rights in care proceedings. No separate or free-standing application is normally required.
3. Proper forum and procedure. Human rights complaints arising before a final care order should normally be determined by the court dealing with the care proceedings. It is almost never appropriate to hive off the human rights issue for separate determination in the Family Division while the substantive care case remains elsewhere. If transfer is genuinely necessary, the whole case should be transferred.
4. Human rights arguments do not, without more, justify transfer from the family proceedings court to the County Court or High Court. A genuinely novel or complex issue may require High Court determination, but ordinary Convention arguments and assessment of the merits of a care plan are within the competence of every court hearing care cases.
5. Judicial review is generally a remedy of last resort and may be a blunt and unsatisfactory tool in this context. It will normally enable reconsideration of an unlawful care plan, not judicial rewriting of it. Human rights arguments should be identified promptly, since fragmented procedures risk delaying the child’s determination.
6. Where care proceedings have ended, a free-standing application under section 7(1)(a) may be appropriate, alone or with an application such as one under section 39 of the Children Act 1989. The proceedings were directed to remain in the Family Division because returning them to the family proceedings court would have caused further delay, not because that court lacked competence.

The judge expressly endorsed the guidance in paragraphs [31]-[36].