S (A Child)

Where proceedings are dismissed on a local authority’s undertakings to provide essential documents for a child approaching adulthood, repeated non-compliance may frustrate the basis of the order. The appellate court may therefore allow an appeal, substitute mandatory directions with a short deadline, and make dismissal conditional upon compliance.

An eligible child’s entitlement to a needs assessment and pathway plan under Children Act 1989 must be performed when due. Local authorities must obey court orders. A penal notice may appropriately reinforce an order requiring compliance.

The parents applied to discharge a care order concerning their severely disabled daughter, who was shortly to attain 18 and cease to be subject to the care order. Their principal aim was to secure the local authority’s compliance with its duty to assess her needs and prepare a pathway plan.

HHJ Mitchell, sitting in the Wolverhampton County Court, dismissed the application on 23 May 2008 after accepting undertakings that the authority would provide the pathway plan, transitional arrangements, and arrangements for the child’s financial affairs and contact. The authority did not comply. The child’s guardian sought permission to appeal.

The central issue was whether the dismissal should stand when the undertakings on which it had been made had again been disregarded.

Permission to appeal was granted and the appeal allowed. Ward LJ, with whom Wall LJ agreed, held that the judge had dismissed the parents’ application in good faith on the basis of the local authority’s undertakings. That basis had been frustrated by the authority’s repeated failure to comply.

1. The child was an eligible child for the purposes of paragraph 19B(4) of Schedule 2 to the Children Act 1989. The authority had been required to assess her needs and prepare a pathway plan by February 2007. Its persistent failure to do so, and its successive disregard of court orders, was strongly condemned.

2. Leaving the dismissal in place would mean that the proceedings had ended, the guardian would have no continuing role, and the intended protective purpose of the undertakings would not be achieved. The appropriate course was to set aside the effective consent order and substitute enforceable directions.

3. The authority was ordered to serve the pathway plan, a statement of transitional arrangements, and a statement concerning the child’s financial affairs and contact arrangements by 4 pm on 10 July 2008. The order was to bear a penal notice. The director was to be informed that continued disregard could lead to committal proceedings.

4. Provided that the required documents were served and filed by the deadline, the parents’ application to discharge the care order would then stand dismissed. Wall LJ added that court orders must be honoured and that the authority’s conduct was a particularly serious failure.

• Court of Appeal (Civil Division): Permission to appeal was granted and the appeal allowed. The dismissal order was replaced by mandatory directions, with dismissal thereafter conditional on compliance.
• Wolverhampton County Court: On 23 May 2008, HHJ Mitchell dismissed the parents’ application to discharge the care order after accepting the local authority’s undertakings to provide specified pathway and transitional documentation.