Council of the Borough of North Tyneside v S & Ors

A court hearing care proceedings must scrutinise the local authority’s care plan, but it need not approve every element before making a care order. Where threshold is established and rehabilitation is impossible, disagreement confined to contact should ordinarily be addressed through the court’s powers under section 34 of the Children Act 1989 and sections 26 and 27 of the Adoption and Children Act 2002. The court may approve the plan in other respects, make a care order, and leave contact for later determination. An interim care order may invite reconsideration, but it must not become a means of continuing judicial control over the local authority. Refusal of a care order is exceptional and may be appropriate only where the court cannot approve the overall plan and there is no satisfactory alternative.

The local authority appealed against the North Tyneside Family Proceedings Court’s dismissal of its application for a care order concerning K, a four-year-old child who had lived with foster carers for most of her life. The lower court found the threshold established and ruled out rehabilitation to K’s mother, but refused to approve the proposed plan for adoption with indirect post-adoption contact only. It dismissed the application because it considered the contact issue insufficiently explored.

The appeal concerned whether the lower court was entitled to refuse a care order solely because it disagreed with the contact provisions of the care plan, and how the court should proceed where the long-term placement and contact arrangements remained under consideration.

1. Appeal allowed. The lower court’s order was set aside. The High Court made a final care order and approved the local authority’s amended care plan, subject to future determination of the nature of K’s permanent placement and contact.
2. The court’s statutory power under Part IV of the Children Act 1989 is to approve or refuse the local authority’s care plan. It cannot dictate the plan. In an appropriate case it may make an interim care order and invite reconsideration, but an interim order must not be used to maintain continuing control over the local authority.
3. Refusal of a care order is rare. Where threshold is established and there is no realistic alternative to care, the court may have to choose the lesser of two evils. That dilemma did not arise here because the disagreement concerned contact alone.
4. Under section 34 of the Children Act 1989, together with sections 26 and 27 of the Adoption and Children Act 2002, the court retains jurisdiction to determine contact. The court is not bound by the care plan on that issue, even where the plan has been approved in other respects. The lower court should therefore have made a care order, while making clear that the contact provisions were not approved and remained for determination.
5. The amended plan properly provided for permanency outside the birth family, concurrent planning with the existing foster carers and alternative carers, and future judicial determination of the permanent placement and direct contact. It was approved because K required finality and the plan left the unresolved matters open to the court.
6. The matter was not remitted for retrial. Further proceedings concerning the foster carers’ applications, the placement application and future direct contact were to be transferred to the High Court. Contact was to reduce from weekly to fortnightly and then monthly.

• High Court (Family Division): allowed the local authority’s appeal, set aside the order dismissing the care application, approved the amended care plan and made a final care order.
• North Tyneside Family Proceedings Court: found threshold established and ruled out rehabilitation to the mother, but dismissed the care application because it declined to approve the proposed contact arrangements.