W (A Child) v Neath Port Talbot County Borough Council & Ors

Once care proceedings have begun, the court determines the relevant facts, evaluates welfare and proportionality, and decides which order, if any, is required. A local authority must comply with directions and provide evidence of practicable services for every realistic order and placement option, including options founded on the court’s assessment of risk.

The court must consider, but cannot approve or supervise the future implementation of, a Children Act 1989 section 31A care plan. A care order is a last resort and requires a sufficiently particularised plan and evidence to permit a holistic comparison of the options. Where that evidence is absent, the proportionality decision is flawed and must be remitted.

In care proceedings concerning W, the county court found that the mother had made serious false allegations and had continuing emotional and behavioural difficulties which created a likelihood of significant emotional harm to W. It nevertheless decided that W should remain living with her mother. The judge made a care order because the local authority would then share parental responsibility and be subject to the duties owed to a child in care.

The mother, supported by the local authority, appealed the care order. The local authority accepted the findings and threshold but contended that a supervision order or voluntary arrangements were sufficient. The child’s guardian opposed the appeal. The central issue was whether the judge could make a care order, despite the local authority’s contrary proposal, when the evidence and care plan did not identify the services available under each possible order.

1. Appeal allowed in part. The full care order was set aside, an interim care order was substituted, and the matter was remitted. The Court did not determine whether a care order, a supervision order or no order would ultimately be proportionate.

2. Ryder LJ, with whom McCombe LJ and the President agreed, held that, once care proceedings are instituted, the court is the decision-maker until a full order is made. It determines the threshold facts, evaluates the welfare options and decides the necessary and proportionate order. The local authority cannot refuse to address the court’s unappealed assessment of risk or decline to provide evidence required for that exercise.

3. The court must consider a section 31A care plan, but it may not approve, impose conditions on, or supervise implementation of a full care order. Those functions belong to the local authority under the statutory care-planning and review scheme. This division of functions, established by Re S (Minors) (Care Order: Implementation of Care Plan); Re W (Minors) (Care Order: Adequacy of Care Plan) [2002] UKHL 10, does not limit the court’s power during proceedings to direct evidence about available care-plan options and services.

4. A welfare and proportionality evaluation must be holistic. The court must identify the harm and its attribution, evaluate each realistic placement and order, and compare their benefits and detriments. A care order is a last resort. The local authority must identify practicable services capable of making a less interventionist option work; it cannot seek, or support, an order which fails to meet the judicially assessed risk because it disagrees with that assessment or is unwilling to provide support.

5. Here, the judge’s findings and welfare assessment could support a conclusion that state intervention was required. However, the local authority had not supplied evidence or alternative care plans identifying services available under the possible orders. That omission prevented a reasoned comparison of the benefits and detriments of intervention and vitiated the proportionality decision. The county court was directed to obtain that evidence and decide afresh.

• Court of Appeal (Civil Division): Allowed the mother’s appeal to the extent of setting aside the full care order, substituting an interim care order and remitting the proportionality decision.
• Swansea County Court: Her Honour Judge Mifflin made findings of fact on 4 August 2012, delivered a welfare judgment on 28 March 2013, and made a care order on 25 April 2013 while W remained living with her mother.