Judgments - In Re S (FC) In Re S and Others In Re W and Others (First Appeal )(FC) In Re W and Others (Second Appeal) (Conjoined Appeals)

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    78. Decisions on the day to day care of a child are towards the latter edge of this range. In the ordinary course disputes about such decisions attract the requirements of article 6(1), if at all, only to an attenuated extent. The parents' rights in respect of the control of the day to day care of the child were decided by the making of the care order and the grant of parental responsibility to the local authority. Nor do such decisions involve the determination of the civil rights of the child. The upbringing of a child normally and inevitably requires that those with parental responsibility for the child exercise care and control over the child and make decisions regarding where the child shall live and how the child's life shall be regulated: see Nielsen v Denmark (1988) 11 EHRR 175, 191, paragraph 61. I see no reason to doubt that, in so far as article 6(1) requires judicial control of such decisions, this requirement is satisfied in this country by the availability of judicial review.

    79. Other decisions made by a local authority may vitally affect the parent-child relationship. Decisions about access are an example, for which the Children Act makes provision for the involvement of the court. But there are other important decisions for which the Children Act makes no provision for court intervention. A decision by a local authority under section 33(3)(b) that a parent shall not meet certain of his parental responsibilities for the child may, depending on the facts, be an instance. More generally, it is notable that when a care order is made questions of a most fundamental nature regarding the child's future may remain still to be decided by the local authority; for example, whether rehabilitation is still a realistic possibility. Consistently with the Strasbourg jurisprudence such decisions attract a high degree of judicial control. It must be doubtful whether judicial review will always meet this standard, even if the review is conducted with the heightened scrutiny discussed in R (Daly) v Secretary of State for the Home Department [2001] 2 WLR 1622.

    80. Any shortcoming here is not, strictly, made good by sections 7 and 8 of the Human Rights Act. As already noted, section 8 enables the court to grant relief only in respect of conduct of a public authority made unlawful by section 6. For the present purpose the relevant public authority is the court itself. In failing to provide a hearing as guaranteed by article 6(1) the court is not acting unlawfully for the purposes of section 6. The court is simply giving effect to the Children Act: see section 6(2)(a) of the Human Rights Act. The court has no power to act otherwise. Section 6 is not the source of any such power. Section 6 is prohibitory, not enabling.

    81. I hasten to add an important practical qualification. Although any shortcoming here is not strictly made good by sections 7 and 8, it is difficult to visualise a shortcoming which would have any substantial practical content. It is not easy to think of an instance in this particular field where the civil rights of parents or children, protected by article 6(1), are more extensive than their article 8 rights. Their article 8 rights have the protection accorded in domestic law by sections 7 and 8. In practice this article 8 protection would, in the present context, seem to cover much the same ground as article 6(1). So any shortcoming is likely to be more theoretical than real.

    82. I must note also a difficulty of another type. This concerns the position of young children who have no parent or guardian able and willing to become involved in questioning a care decision made by a local authority. This is an instance of a perennial problem affecting children. A parent may abuse a child. The law may provide a panoply of remedies. But this avails nothing if the problem remains hidden. Depending on the facts, situations of this type may give rise to difficulties with Convention rights. The Convention is intended to guarantee rights which are practical and effective. This is particularly so with the right of access to the courts, in view of the prominent place held in a democratic society by the right to a fair trial: see Airey v Ireland (1979) 2 EHRR 305, 314, paragraph 24. The guarantee provided by article 6(1) can hardly be said to be satisfied in the case of a young child who, in practice, has no way of initiating judicial review proceedings to challenge a local authority's decision affecting his civil rights. (In such a case, as already noted, the young child would also lack means of initiating section 7 proceedings to protect his article 8 rights.)

    83. My conclusion is that in these respects circumstances might perhaps arise when English law would not satisfy the requirements of article 6(1) regarding some child care decisions made by local authorities. In one or other of the circumstances mentioned above the article 6 rights of a child or parent are capable of being infringed.

    84. I come to the next and final step. This is to consider whether the existence of possible infringements in these circumstances means that the Children Act is incompatible with article 6(1).

    85. Here again, the position is not straightforward. The Convention violation now under consideration consists of a failure to provide access to a court as guaranteed by article 6(1). The absence of such provision means that English law may be incompatible with article 6(1). The United Kingdom may be in breach of its treaty obligations regarding this article. But the absence of such provision from a particular statute does not, in itself, mean that the statute is incompatible with article 6(1). Rather, this signifies at most the existence of a lacuna in the statute.

    86. This is the position so far as the failure to comply with article 6(1) lies in the absence of effective machinery for protecting the civil rights of young children who have no parent or guardian able and willing to act for them. In such cases there is a statutory lacuna, not a statutory incompatibility.

    87. The matter may stand differently regarding the inability, of parents and children alike, to challenge in court care decisions, however fundamental, made by a local authority while a care order is in force. This matter may stand differently because, judicial review apart, the opportunity to challenge such decisions in court would be in conflict with the scheme of the Children Act. This gives rise to yet another issue: whether inconsistency with a basic principle of a statute, as distinct from inconsistency with express provisions within the statute, gives rise to incompatibility for the purpose of section 4.

    88. This issue does not call for decision on these appeals. I prefer to leave it open, for two reasons. As already noted, this problem is theoretical rather than real, given the court remedies available for breach of article 8 rights. Secondly, the issue does not need to be decided in the present case, for this reason. Even if conflict with the scheme of the Act constitutes incompatibility, the present case is not one where the House should make a declaration of incompatibility. Ordinarily the court will grant such relief only to a person who is a victim of an actual or proposed breach of a Convention right. In the Torbay case the essential problem was 'drift' in the local authority's implementation of the care plan. But in practice the mother did not lack a court forum in which to express her deep concern at the lack of progress. Her appeal enabled her to raise these matters in the Court of Appeal. The intervention of that court appears to have galvanised the local authority into taking the necessary action, if belatedly. I do not think there has been a violation of the mother's rights under article 6(1).

Interim care orders

    89. I turn to the other 'revisionary application' of the Children Act adumbrated by the Court of Appeal. This concerns the extended use of interim care orders. The source of the court's power to make an interim care order is section 38. The power exists when an application for a care order or a supervision order is adjourned (section 38(1)(a)) or the court has given a direction to a local authority under section 37 to undertake an investigation of a child's circumstances (section 38(1)(b)). Section 38 contains tight limits on the period for which an interim care order has effect: eight weeks initially, thereafter four weeks. The circumstances in which an interim care order ceases to have effect include also the disposal of the application for a care order or a supervision order, in both section 38(1)(a) and section 38(1)(b) cases.

    90. From a reading of section 38 as a whole it is abundantly clear that the purpose of an interim care order, so far as presently material, is to enable the court to safeguard the welfare of a child until such time as the court is in a position to decide whether or not it is in the best interests of the child to make a care order. When that time arrives depends on the circumstances of the case and is a matter for the judgment of the trial judge. That is the general, guiding principle. The corollary to this principle is that an interim care order is not intended to be used as a means by which the court may continue to exercise a supervisory role over the local authority in cases where it is in the best interests of a child that a care order should be made.

    91. An interim care order, thus, is a temporary 'holding' measure. Inevitably, time is needed before an application for a care order is ready for decision. Several parties are usually involved: parents, the child's guardian, the local authority, perhaps others. Evidence has to be prepared, parents and other people interviewed, investigations may be required, assessments made, and the local authority must produce its care plan for the child in accordance with the guidance contained in local authority circular LAC(99)29. Although the Children Act itself makes no mention of a care plan, in practice this is a document of key importance. It enables the court and everyone else to know, and consider, the local authority's plans for the future of the child if a care order is made.

    92. When a local authority formulates a care plan in connection with an application for a care order, there are bound to be uncertainties. Even the basic shape of the future life of the child may be far from clear. Over the last ten years problems have arisen about how far courts should go in attempting to resolve these uncertainties before making a care order and passing responsibility to the local authority. Once a final care order is made, the resolution of the uncertainties will be a matter for the authority, not the court.

    93. In terms of legal principle one type of uncertainty is straightforward. This is the case where the uncertainty needs to be resolved before the court can decide whether it is in the best interests of the child to make a care order at all. In C v Solihull Metropolitan Borough Council [1993] 1 FLR 290 the court could not decide whether a care order was in the best interests of a child, there a 'battered baby', without knowing the result of a parental assessment. Ward J made an appropriate interim order. In such a case the court should finally dispose of the matter only when the material facts are as clearly known as can be hoped. Booth J adopted a similar approach, for a similar reason, in Hounslow London Borough Council v A [1993] 1 FLR 702.

    94. More difficult, as a matter of legal principle, are cases where it is obvious that a care order is in the best interests of the child but the immediate way ahead thereafter is unsatisfactorily obscure. These cases exemplify a problem, or a 'tension', inherent in the scheme of the Children Act. What should the judge do when a care order is clearly in the best interests of the child but the judge does not approve of the care plan? This judicial dilemma was described by Balcombe LJ in In re S and D (Children: Powers of Court) [1995] 2 FLR 456, 464, perhaps rather too bleakly, as the judge having to choose between 'the lesser of two evils'.

    95. In this context there are sometimes uncertainties whose nature is such that they are suitable for immediate resolution, in whole or in part, by the court in the course of disposing of the care order application. The uncertainty may be of such a character that it can, and should, be resolved so far as possible before the court proceeds to make the care order. Then, a limited period of 'planned and purposeful' delay can readily be justified as the sensible and practical way to deal with an existing problem.

    96. An instance of this occurred in In re C H (Care or Interim Care Order) [1998] 1 FLR 402. In that case the mother had pleaded guilty to causing grievous bodily harm to the child. The judge was intensely worried by the sharp divergence of professional view on placement. The local authority cautiously favoured rehabilitation. The child's guardian ad litem believed adoption was the realistic way to promote the child's future welfare. The judge made the care order without hearing any expert evidence on the disputed issue. The local authority would itself obtain expert advice, and then reconsider the question of placement. The Court of Appeal (Kennedy and Thorpe LJJ) held that the fact that a care order was the inevitable outcome should not have deflected the judge from hearing expert evidence on this issue. Even if the issue could not be finally resolved before a care order was made, it was obviously sensible and desirable that, in the circumstances of the case, the local authority should have the benefit of the judge's observations on the point.

    97. Frequently the case is on the other side of this somewhat imprecise line. Frequently the uncertainties involved in a care plan will have to be worked out after a care order has been made and while the plan is being implemented. This was so in the case which is the locus classicus on this subject: In re J (Minors)(Care: Care Plan) [1994] 1 FLR 253. There the care plan envisaged placing the children in short-term foster placements for up to a year. Then a final decision would be made on whether to place the children permanently away from the mother. Rehabilitation was not ruled out if the mother showed herself amenable to treatment. Wall J said, at page 265:

    'there are cases (of which this is one) in which the action which requires to be taken in the interests of children necessarily involves steps into the unknown … provided the court is satisfied that the local authority is alert to the difficulties which may arise in the execution of the care plan, the function of the court is not to seek to oversee the plan but to entrust its execution to the local authority.'

In that case the uncertain outcome of the treatment was a matter to be worked out after a care order was made, not before. The Court of Appeal decision in In re L (Sexual Abuse: Standard of Proof) [1996] 1 FLR 116 was another case of this type: see Butler-Sloss LJ, at page 125E-H. So also was the decision of the Court of Appeal in In re R (Care Proceedings: Adjournment) [1998] 2 FLR 390.

    98. These are all instances of cases where important issues of uncertainty were known to exist before a care order was made. Quite apart from known uncertainties, an element of future uncertainty is necessarily inherent in the very nature of a care plan. The best laid plans 'gang aft a-gley'. These are matters for decision by the local authority, if and when they arise. A local authority must always respond appropriately to changes, of varying degrees of predictability, which from time to time are bound to occur after a care order has been made and while the care plan is being implemented. No care plan can ever be regarded as set in stone.

    99. Despite all the inevitable uncertainties, when deciding whether to make a care order the court should normally have before it a care plan which is sufficiently firm and particularised for all concerned to have a reasonably clear picture of the likely way ahead for the child for the foreseeable future. The degree of firmness to be expected, as well as the amount of detail in the plan, will vary from case to case depending on how far the local authority can foresee what will be best for the child at that time. This is necessarily so. But making a care order is always a serious interference in the lives of the child and his parents. Although article 8 contains no explicit procedural requirements, the decision making process leading to a care order must be fair and such as to afford due respect to the interests safeguarded by article 8: see TP and KM v United Kingdom [2001] 2 FLR 549, 569, paragraph 72. If the parents and the child's guardian are to have a fair and adequate opportunity to make representations to the court on whether a care order should be made, the care plan must be appropriately specific.

    100. Cases vary so widely that it is impossible to be more precise about the test to be applied by a court when deciding whether to continue interim relief rather than proceed to make a care order. It would be foolish to attempt to be more precise. One further general point may be noted. When postponing a decision on whether to make a care order a court will need to have in mind the general statutory principle that any delay in determining issues relating to a child's upbringing is likely to prejudice the child's welfare: section 1(2) of the Children Act.

    101. In the Court of Appeal Thorpe LJ, at paragraph 29, expressed the view that in certain circumstances the judge at the trial should have a 'wider discretion' to make an interim care order: 'where the care plan seems inchoate or where the passage of a relatively brief period seems bound to see the fulfilment of some event or process vital to planning and deciding the future'. In an appropriate case, a judge must be free to defer making a care order until he is satisfied that the way ahead 'is no longer obscured by an uncertainty that is neither inevitable nor chronic'.

    102. As I see it, the analysis I have set out above adheres faithfully to the scheme of the Children Act and conforms to the procedural requirements of article 8 of the Convention. At the same time it affords trial judges the degree of flexibility Thorpe LJ is rightly concerned they should have. Whether this represents a small shift in emphasis from the existing case law may be a moot point. What is more important is that, in the words of Wall J in Re J, the court must always maintain a proper balance between the need to satisfy itself about the appropriateness of the care plan and the avoidance of 'over-zealous investigation into matters which are properly within the administrative discretion of the local authority'. This balance is a matter for the good sense of the tribunal, assisted by the advocates appearing before it: see [1994] 1 FLR 253, 262.

The outcome of the appeals

    103. I would dismiss the appeal of the mother in the Torbay case. When rejecting the mother's submission that the appropriate order was an interim order, Judge Sander regarded the care plan as clear. The work and therapy would take months. The outcome was neither known nor certain, but the children needed the security of not having further court proceedings hanging over them. I can see no basis for faulting the judge's decision to proceed to make a full care order at once.

    104. Nor do later events provide good reason for now discharging the care order and substituting an interim care order. That would be simply a means of enabling the courts to monitor Torbay's discharge of its parental responsibilities. Happily, however egregious the past failings of Torbay, the current position is that all seems to be going well.

    105. I would allow the appeals of the Secretary of State for Health and Bedfordshire so far as they have challenged the Court of Appeal's introduction of the starring system. Judge Sander's 'starring' order dated 2 July 2001 should be set aside.

    106. I must finally make an observation of a general character. In this speech I have sought to explain my reasons for rejecting the Court of Appeal's initiative over starred milestones. I cannot stress too strongly that the rejection of this innovation on legal grounds must not obscure the pressing need for the Government to attend to the serious practical and legal problems identified by the Court of Appeal or mentioned by me. One of the questions needing urgent consideration is whether some degree of court supervision of local authorities' discharge of their parental responsibilities would bring about an overall improvement in the quality of child care provided by local authorities. Answering this question calls for a wider examination than can be undertaken by a court. The judgments of the Court of Appeal in the present case have performed a valuable service in highlighting the need for such an examination to be conducted without delay.

LORD MACKAY OF CLASHFERN

My Lords,

    107. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Nicholls of Birkenhead. I agree that these appeals should be allowed to the extent that he has proposed and with the reasons he has given.

    108. Since I had a part in the process of enacting the Children Act 1989 and in a public lecture I had suggested that the idea of starring stages of a care plan should be considered so that the court might have an opportunity of considering whether to intervene if the plan was not being carried out, I feel it appropriate to add some observations. At the start of the hearing I invited counsel to say whether any party had any objection to my sitting and I was glad to be told on behalf of all parties they had no such objection.

    109. When the Children Act was enacted the United Kingdom was a party to the Human Rights Convention although at that time the Convention was not incorporated into our domestic law. Accordingly the Act was framed in a way which took account of the terms of the Convention as then understood. For example, section 34 is a reflection of the requirement that a dispute relating to access is for decision by the court. In my opinion, the fundamental change brought about by the Act placing the responsibility for looking after children who are the subject of care orders squarely on the local authorities is not in any way incompatible with the Convention. In discharging its responsibility the local authority has the duty of respecting the Convention rights of the child and of each member of the child's family. If a dispute arises whether this duty has been breached in any particular case the person aggrieved can now invoke the court's jurisdiction to determine it, under Section 7 of the Human Rights Act, if no other route is available. I agree that in so far as there are rights conferred in our domestic law which are not Convention rights, there may be a lacuna but I doubt whether this involves any substantial content. If the duty is breached in respect of a child who has no person to raise the matter on his behalf, for example an orphan, an important question arises, to which I must now turn.

    110. Over the years since the Children Act took effect there have been far too many cases in which the system has failed children in care. Lord Nicholls has referred to the then Secretary of State's response to Sir William Utting's report in November 1997 and the subsequent Quality Protects Programme. That there are still serious problems in this field is evident from the powerful statements in the Court of Appeal in the present case and the decision in F v London Borough of Lambeth 28 September 2001 to which my Lord has referred. It was strongly submitted by the guardians that the measures taken for example by Bedfordshire County Council though welcome were not sufficient to eliminate these problems.

    111. When I suggested that a starring system should be considered it was in order to address these problems generally rather than problems with Human Rights that I had in mind. Having had the benefit of the very clear and cogent arguments which have been advanced to your Lordships I consider that there is no guarantee that the system would identify only the cases with genuine problems or that all the cases with such problems would be identified. There is no necessary correlation between failure to meet dates predetermined as important at the time the care order is made and serious deficiency in the care provided to the child. The system would require resources and to the extent that it did not meet its aims these would be wasted.

    112. In agreeing that the appeal should succeed against the starring I would strongly urge that the Government and Parliament give urgent attention to the problems clearly described by the Court of Appeal and by my noble and learned friend so that we do not continue failing some of our most vulnerable children.

    113. As a practical matter I do not see how a child who has no person to raise the matter on his behalf can be protected from violation of his or her Human Rights or the rights conferred on him or her by our domestic law, other than by reliance on an effective means by which others bring the violation to notice.

LORD BROWNE-WILKINSON

My Lords,

    114. For the reasons given by my noble and learned friend, Lord Nicholls of Birkenhead with which I agree. I too would allow these appeals to the extent which he proposes.

LORD MUSTILL

My Lords,

    115. For the reasons given by my noble and learned friend, Lord Nicholls of Birkenhead with which I agree. I too would allow these appeals to the extent, which he proposes.

LORD HUTTON

My Lords,

    

 
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