T-S (Children)

In care proceedings, the court decides whether an order is necessary and makes the welfare evaluation; the local authority retains responsibility for the care plan. The court must scrutinise permanence provisions and may invite reconsideration where the plan conflicts with its welfare assessment. Court and authority must use mutual respect and engagement to seek common ground. A public-law challenge or the lesser-of-two-evils analysis arises only after that process has run its course. The court may consider adoption and use the adoption welfare checklist even though only a local authority can apply for a placement order. It cannot predetermine dispensing with parental consent when that issue is not before it. An apparent impasse cannot be declared before the authority’s reconsideration and new material have been evaluated.

The appeal arose from care proceedings concerning three boys. The statutory threshold under the Children Act 1989 was conceded. For the middle child, J, the Family Court judge preferred adoption, invited the local authority to reconsider its long-term fostering plan and continued an interim care order.

The agency decision-maker maintained that adoption was not in J’s best interests. At the return hearing, the judge granted permission to appeal rather than reconsidering the care plan in light of the agency decision-maker’s statement and new material. The local authority challenged the division of responsibilities between court and authority. J’s father challenged the use of the adoption welfare checklist and the judge’s indication that parental consent would later be dispensed with. The central issues were how an apparent care-plan impasse should be managed and whether consent could be predetermined without a placement-order application.

The appeal was allowed. The question of the final order for J was remitted to the Family Court for rehearing before a different judge.

1. Under Part IV of the Children Act 1989, the court decides whether a care order should be made and conducts the welfare evaluation. The local authority formulates and implements the care plan. The court must scrutinise the permanence provisions of the section 31A plan, but it cannot dictate a particular placement.
2. Where the court’s welfare assessment and the authority’s plan diverge, both must use mutual respect, cooperation and reconsideration to seek sufficient common ground. The court may invite the authority to reconsider. Only after that process has run its course may a genuine impasse require the court to choose the lesser of two evils or consider a public-law challenge.
3. The judge was entitled to make his own welfare determination and to consider adoption as a possible plan. Use of the adoption welfare checklist in section 1(4) of the Adoption and Children Act 2002 was proper even though no placement-order application had been made. That did not give the court jurisdiction to make a placement order itself.
4. The November decision was not successfully challengeable. The December hearing was premature. The judge had not evaluated the agency decision-maker’s statement or the new material, and the authority’s reconsideration had not been properly tested. The hearing should have continued through a further welfare and care-plan evaluation before any impasse was declared.
5. Separately, the judge had impermissibly predetermined the question of dispensing with parental consent under section 52 of the Adoption and Children Act 2002. No placement application had been made, and the issue had not been addressed in evidence or submissions. The question therefore required fresh consideration by the new judge. King LJ and Floyd LJ agreed.

• Court of Appeal (Civil Division): The appeal was allowed and the question of the final order for J was remitted to the Family Court for rehearing before a different judge: [2019] EWCA Civ 742.
• Family Court sitting at Cardiff: His Honour Judge Harris-Jenkins made a welfare determination on 20 November 2018 favouring adoption for J, invited reconsideration of the care plan and continued an interim care order. On 14 December 2018, he granted permission to appeal without undertaking the further reconsideration process.