S (children) and W (a child), Re

In care proceedings, the court must rigorously scrutinise the local authority’s care plan and may refuse a care order where the plan does not serve the child’s welfare. Before reaching the final choice between an unacceptable care order and no order, the court may adjourn and invite the authority to reconsider its plan.

The court cannot dictate a care plan, but the authority must respect and properly consider the court’s welfare assessment. Challenges to care-planning decisions during pending proceedings should ordinarily be determined within those proceedings. In exceptional cases, judicial review may be heard concurrently by the same judge.

The local authority brought care proceedings concerning three siblings whose parents could not care for them. Its original plans proposed separate adoptive placements. Shortly before the final hearing, it changed the plan for one child to kinship fostering and began considering family placements for the other two.

The county court made care and placement orders for two children. It adjourned the third child’s case under an interim care order and invited the authority to reconsider that child’s care plan. The authority did not properly undertake that reconsideration and indicated that it would not implement the plans on which the final orders had been based.

The local authority, the mother and proposed kinship carers appealed. The central questions concerned the court’s power to invite reconsideration of a care plan, the proper division of responsibility between the court and the authority, and the appropriate response to the authority’s decision-making failures.

1. The appeals were allowed and all three cases were remitted for rehearing. The county court judge had acted properly. A rehearing nevertheless became inevitable because the local authority intended to pursue changed family placements and would not implement the care plans supporting the final orders for two children. Leaving those orders in force would therefore disconnect the orders from the plans scrutinised by the court.

2. Responsibility for making a care order rests with the court. The authority must establish the threshold under section 31 of the Children Act 1989, and the court must be satisfied that the order serves the child’s welfare. The court must rigorously scrutinise the care plan and may refuse a care order if the plan does not meet the child’s needs.

3. The court may adjourn and invite the authority to reconsider a care plan which it considers contrary to the child’s interests. That course does not impose a plan upon the authority or usurp its post-order responsibility. Care proceedings have a powerful inquisitorial element, and the court and authority should pursue the child’s welfare through reciprocal respect for their distinct functions.

4. The “lesser of two evils” principle in Re S and D applied only after reconsideration had failed and no other route remained. The judge had not reached that point. His interim care order preserved the position while reconsideration occurred; it was not an assessment direction under section 38(6) of the Children Act 1989.

5. While care proceedings remain pending, human-rights and care-planning issues should normally be determined within those proceedings. The exceptional decision-making failures here could justify judicial review. Any such claim was to be brought within, or consolidated with, the care proceedings and heard by the same judge. That judge could quash unlawful decisions or grant interim injunctive relief.

6. The rehearing was directed before a Family Division judge authorised to sit in the Administrative Court. Interim care orders were required, the children were to remain in their existing foster placements, and independent assessments of the proposed family carers were considered essential.

1. Court of Appeal (Civil Division): Permission to appeal granted, the appeals allowed and the care proceedings remitted for rehearing before a Family Division judge authorised to sit in the Administrative Court: [2007] EWCA Civ 232.

2. Stoke on Trent County Court: His Honour Judge Styler made care and placement orders for two children. He adjourned final disposal concerning the third child under an interim care order and invited the local authority to reconsider that child’s care plan.