S (children) and W (a child), Re

This is the judgment of the court.

On 28 February 2007, we heard applications for permission to appeal against orders made by His Honour Judge Styler in the Stoke on Trent County Court on 15 January 2007, at what was intended to be the final hearing of care proceedings under Part IV of the Children Act 1989 (the 1989 Act). In the event, we were constrained to give permission to appeal, allow the respective appeals and direct a re-hearing of the care proceedings before one of High Court Judges of the Family Division who is also authorised to sit in the Administrative Court.

Although announcing our decision on 28 February 2007, we reserved our reasons. This was because the applications engaged a number of important principles of family law, notably the relationship between the court and the local authority in care proceedings. Although we had thought these principles well entrenched, it appears from the conduct of the local authority in question, the Cheshire County Council, that this may not be the case. We propose, therefore, to take the opportunity presented by this judgment to re-state the law in clear and unequivocal terms.

This is a case to which reporting restrictions apply. The only exception is that, for reasons which will become apparent, we have named the local authority in the case, the Cheshire County Council. We will, however, henceforth refer to that body as “the local authority”.

SW (the mother) and DS (the father) have three children. They are CH, a girl, born on 13 April 2000, CO, a boy, born on 8 January 2002, and L, another boy, born on 17 June 2003. All three children are the subjects of care proceedings instituted by the local authority. The threshold criteria under section 31 of the 1989 Act were plainly satisfied, and there was no question of any of the children living with either of their parents, who had separated, but remained in contact. Due to the level of the disturbance shown by the children, particularly CH and CO, the local authority’s original care plans were that each child should be placed separately for adoption outside the natural family. Those care plans were supported in each case by the children’s guardian in the proceedings, and the cases of CH and CO had both been before the local authority’s adoption panel, which had approved the plans for adoption.

The children had, for a short time, lived with their maternal grandparents. Unsurprisingly, however, the latter had been unable to cope, and the children had moved into foster care. As a consequence of the local authority’s plans for adoption by separate families for each of the three children, and sensibly recognising that they could not care for all three, the maternal grandparents reluctantly came to the conclusion that there was no point in them intervening in the proceedings, and seeking an order that they should be permitted to care for one of more of the children.

However, in highly unusual circumstances, the local authority’s fostering panel recommended on 18 December 2006 that the children’s maternal great aunt and uncle (Mr and Mrs W) should be approved as kinship foster carers for the middle child, CO. This caused the local authority to revise its care plan for CO, which became placement with Mr and Mrs W under a care order. However, the knock-on effect of the change of plan was that the maternal grandparents then sought to intervene in the proceedings, and to seek orders that the other two children, CH and L, should live with them.

The local authority’s late change of plan put the judge in a very difficult position. An application by the maternal grandparents for leave to intervene in the proceedings was not made until 4 January 2007, only four days before the final hearing, and was heard by the judge on 8 January 2007, the first day of the hearing. The judge gave the maternal grandparents leave to pursue applications for residence orders in relation to CH and L, but refused their application to apply for special guardianship orders. This was because the final hearing of the proceedings had been due to take place on 3 July 2006, but had then been adjourned for further investigations to be carried out. The judge was, quite properly in our judgment, concerned with the delay which had already occurred since the institution of the proceedings in the autumn of 2005, and rightly took the view that giving the maternal grandparents permission to apply for special guardianship orders would inevitably require an extensive adjournment, which he was not prepared to contemplate.

Having been given permission to intervene on the first day of the hearing, the grandparents then applied for an adjournment to enable them to be assessed as carers by the local authority. That application was supported by the children’s parents, Mr and Mrs W, and the local authority which sought permission to amend its care plans for CH and L to provide for the reassessment of the maternal grandparents as carers. It was opposed by the guardian. The judge refused both the adjournment and the local authority’s application to alter the care plans for CH and L. However, he rose for the rest of the day to enable the lawyers instructed by the maternal grandparents to read themselves into the case.

When the hearing resumed, the position of the respective parties, as recorded by the judge in paragraph 4 of his judgment, was as follows. The local authority, having been refused an adjournment and permission to amend, sought care orders under the 1989 Act in relation to all three children, and placement orders under the Children and Adoption Act 2002 (the 2002 Act) in relation to CH and L. Its care plan for CO was that he would be placed with Mr and Mrs W. The actual care plans for CH and L remained adoption outside the family, although it now transpires (from what this court has been told) that if the care orders in relation to these two children are allowed to stand, the local authority will in fact not place them for adoption, but will continue a process it has already in fact begun, namely to re-assess the maternal grandparents as prospective carers. We will return to the local authority’s behaviour in relation to this point later.

Although the father formally sought rehabilitation of all three children to his care, that application, as he himself recognised during the course of his evidence to the judge, was manifestly unrealistic. He therefore supported the proposal that CO should be placed with Mr and Mrs W, and that the maternal grandparents should be re-assessed as carers for CH and L. The children’s mother was. as everybody in the case accepted, wholly incapable of caring for any of them.

To complicate the judge’s task even further, there was a disagreement within the local authority itself. The principal social worker in the case, Ms B, whose views remained consistent, for whose work the judge formed a high regard, and with whom he agreed, adhered to the local authority’s original care plan for stranger adoption for all three children. Others within the local authority disagreed. The guardian agreed with Ms B. However, the local authority, through counsel, made it clear to the judge that that if he made a care order in relation to CO, he would be placed with Mr and Mrs W.

As is already apparent, the outcome which the local authority sought for CO was not one of which the judge felt able to approve. He thus found himself in the classic dilemma of being invited to make a care order which would result in a placement which he thought contrary to the child’s best interests.

What the judge did, after what was clearly considerable thought, was to make both care and placement orders in relation to CH and L, on the basis that the care plan for each of those children remained a separate placement for adoption outside the family. He refused, however, to make a care order in relation to CO, and invited the local authority to re-consider its position in the light of his judgment. Paragraphs 2, 3 and 4 of his order thus read:-

The judge refused applications by Mr and Mrs W, the mother and the maternal grandparents for permission to appeal, but directed that a full transcript of his judgment should be prepared, filed and sent to the local authority, which was then to distribute it to the parties. The judge also expedited the preparation of the transcript. The local authority did not, at that point, seek permission to appeal.

Much of this judgment will be taken up in a consideration of the local authority’s decision making processes. At this point, however, it is sufficient to state that the local authority did not take any steps to restore the matter to the judge. Instead, like the parents and Mr and Mrs W, it sought to challenge the judge’s order by seeking permission to appeal. The maternal grandparents also made clear their wish to apply for permission to appeal, but stated they did not have the financial resources to enable them to do so. In the event, their mantle was taken over by the children’s mother, who is publicly funded.

On 19 February 2007, Wall LJ considered on paper the various applications for permission, and directed the oral hearing on notice, with appeals to follow, which took place before us on 28 February 2007. It is, we think, worth setting out in full the reasons which he gave for taking that course, which identify the issues raised:-

Pending the hearing of the permission applications, Wall LJ also stayed the judge’s order.

At the hearing before us, the lone voice in support of the judge was that of the guardian. She invited us to refuse the various applications for permission, alternatively to dismiss the various appeals. She also invited us to say that the local authority’s decision making processes were so flawed as to render both it and the fostering panel liable to applications for judicial review in the Administrative court. The judge had been fully entitled to take the course he had adopted, and this court should support him.

On the other side, the parents (counsel for the mother also advancing the case of the maternal grandparents), and Mr and Mrs W invited us to set aside the judge’s orders, and to direct a re-hearing of the care proceedings, thereby enabling a full assessment of the proposed family placement of CH and L with the maternal grandparents to take place. The local authority, whilst not inviting a re-hearing, made it plain that, if the care orders in relation to CH and L stood, it intended, notwithstanding the care plans placed before the judge for adoption, to re-assess the maternal grandparents as carers for those two children. Furthermore, it reaffirmed its decision, if this court made a final care order in relation to CO, to place him with Mr and Mrs W.

We have very considerable sympathy for the judge in this case. Indeed, we would have liked to have upheld the guardian’s submissions and refused the various applications for permission to appeal. However, as we pointed out in argument, such a course overlooks one regrettable but salient fact. This is that, whatever course of action this court took, the local authority had expressed itself as determined to maintain its changed plans to place all three children within the family. Thus if we dismissed the appeals in relation to CH and L, the local authority, despite advocating separate adoptive placements for those two children in the care plans placed before the judge, would not implement them, but would, instead, propose to reassess the maternal grandparents as carers for them and, assuming that process produced a satisfactory result, to place those two children with their maternal grandparents. Equally, the local authority remained determined, it appears, to implement its revised plan for CO, and to place him with Mr and Mrs W.

It therefore seemed to us that if we simply refused the permission applications (or dismissed the appeals) the case would be returned to the judge as he had directed, and the stand-off between the judge and the local authority would continue. The local authority would take what we have to say we consider the unprincipled course of refusing to implement the care plans for CH and L which it had placed before the court. Equally, if, at the adjourned hearing, the judge was put in the position described by Balcombe LJ in Re S and D (Child Case: Powers of Court)[1995] 1 FCR 626 (Re S and D), he would, in all probability be forced into making a care order for CO, since the refusal to do so would leave the decision making process in the hands of those with parental responsibility for him (his parents) both of whom were manifestly incapable of exercising it appropriately. Alternatively, they would exercise it by placing him with Mr and Mrs W in any event.

We therefore came reluctantly to the conclusion that although the judge had been fully entitled to act as he had the local authority’s behaviour made a re-hearing inevitable. Moreover, in the most unusual circumstances which we will set out later in this judgment, that re-hearing needed to be taken by a High judge of the Family Division who was also authorised to sit in the Administrative court; so that, if necessary and appropriate, the decision of the local authority’s fostering panel could be considered and quashed, as could the local authority’s late decisions to amend its care plan in relation to CO and not to implement the care plans placed before the court in relation to CH and L. A judge exercising the jurisdiction of the Administrative Court would also, in our judgment, if they were needed, have the jurisdiction to impose injunctions restraining the local authority from implementing its changed care plans pending the outcome of the re-hearing.

For obvious reasons, which we will nonetheless set out later in this judgment, it would be highly undesirable to have the re-hearing of the care proceedings in the Family Division and separate proceedings in the Administrative Court. This, accordingly, was a critical factor in our decision that the re-hearing would have to be taken by a High Court judge of the Family Division authorised to sit in the Administrative Court.

Before turning to examine the local authority’s decision making processes in these proceedings, we regret to say that we think it necessary to set out what we had previously thought to be some elementary principles of family law and practice as they affect the relationship between a judge hearing proceedings under Part IV of the 1989 Act, and the local authority which brings them.

We fully endorse the statement of the law set out in paragraph 2 of Wall LJ’s reasons for listing the applications for oral hearing. The division of responsibility between the local authority and the court in care proceedings is, we think, well known, although we acknowledge that it is sometimes difficult to implement it in practice. It plainly needs, however, to be restated.

Parliament has placed the responsibility for making care orders on the court, not on the local authority which brings the proceedings. Before a care order can be made, the local authority has to satisfy the court that the threshold criteria under section 31 of the 1989 Act are satisfied, and the court also has to be satisfied that a care order is in the best interests of the child concerned. To the latter end, the court is under a duty rigorously to scrutinise the care plan advanced by the local authority, and if the court does not think that it meets the needs of the child concerned, the court can refuse to make a care order. So much is elementary.

The significance of local authority care plans was, we think, both recognised and reinforced by Parliament in the enactment of section 31A of the 1989 Act through the medium of section 121(2) of the 2002 Act. There is now a mandatory duty on local authorities to prepare a care plan for each child who is the subject of care proceedings, to keep that care plan under review and if some change is required, to revise the care plan or to make a new plan accordingly – see section 31A(1) and (2) of the 1989 Act. This case, it seems to us, is about both the merits of the local authority’s late changes of plan on the facts, and the methodology of its decision making processes.

What, however, is equally elementary is that once the court has made a final care order, responsibility for its implementation passes to the local authority, and save for the powers identified by the House of Lords in the case of Re S (Children: Care Plan); Re W (Children: Care Plan) [2002 UKHL 10, [2002] 2 AC 291 (hereinafter Re S; Re W), neither the court nor the children’s guardian has any further role in the children’s lives.

What appears not to be understood, however, and thus needs to be clearly repeated, is that not only does the court have the duty rigorously to scrutinise the care plan and to refuse to make a care order if it does not think the plan in the child’s best interests; the court also has the right to invite the local authority to reconsider the care plan if the court comes to the conclusion that the plan – or any change in the plan - involves a course of action which the court believes is contrary to the interests of the child, and which would be likely to lead the court to refuse to make a care order if the local authority were to adhere to the care plan it has proposed.

In the instant case, the local authority’s second ground of appeal begins with the following sentence: -

In our judgment, that submission is simply and plainly wrong. We express surprise that it was advanced. To be fair to counsel instructed on behalf of the local authority, she acknowledged in oral argument that the judge did have the power to invite the local authority to reconsider the care plan: her complaint was that he should not have exercised it on the facts of this case, or exercised it differently. That, of course, is a quite separate argument.

However, the grounds of appeal advanced by the local authority contain a second, equally fallacious submission. This was:-

Once again, in oral argument, counsel agreed that the second sentence of this ground of appeal should be struck through as erroneous. However, in our judgment, the first sentence is also plainly wrong. The “lesser of two evils” test arises from the well-known judgment of Balcombe LJ given in this court in Re S and D [1995] 1 FCR 626 at 634G to 635C, citations from which we set out below. In the instant case, however, the local authority’s reliance on Re S and D is manifestly misconceived for the simple reason that the judge had not reached the point identified by Balcombe LJ. Had the local authority (as it should have done) accepted his invitation to reconsider after reading his judgment and then restored the case to the judge’s list, it might well then have been the case that the judge was faced with either making the care order sought by the local authority with its unacceptable care plan or making no order. But the judge had not reached that point, and was – in our view wholly properly – striving to avoid it.

It is, we think, worthwhile pausing for a moment to reflect on why a court is entitled to exercise a discretionary jurisdiction to adjourn in order to invite a local authority to reconsider. The answer, we think, is, like much of what we have already said, self-evident. Care proceedings are only quasi-adversarial. There is a powerful inquisitorial element. But above all, they are proceedings in which the court and the local authority should both be striving to achieve an order which is in the best interests of the child. There needs to be mutual respect and understanding for the different role and perspective which each has in the process. We repeat: the shared objective should be to achieve a result which is in the best interests of the child.

We had thought these principles to be so elementary that they did not need restating. As long ago as 4 March 1992, Ward J (as he then was) said in C v Solihull Metropolitan Borough Council[1993] 1 FLR 209 at 302B: -

Thorpe LJ put the matter succinctly in Re C-H (a minor) (care or interim order)[1998] 2 FCR 347 at 355-6 when he said:-

Sadly, those words, and, as importantly, the spirit behind them, do not appear to have been absorbed by this local authority. Two members of this court sat for many years hearing care proceedings under Part IV of the 1989 Act. Neither can recall a case in which a local authority behaved as this authority has done. In the overwhelming majority of cases in which there is a disagreement between the local authority and the court over a child’s care plan, that disagreement is resolved by careful reconsideration on both sides. In our experience, as a consequence, such disagreements are extremely rare. That is as it should be. It is patently not in the interests of the already disadvantaged children involved in care proceedings for there to be a stand-off between the court and the local authority, the result of which, as here, is still further delay in resolving the children’s future placements.

We have to say that, surprised as we were by the local authority’s submissions on the point, we were even more surprised by the submission made on behalf of Mr and Mrs W that the orders made by the judge were “unlawful”. Unsurprisingly, counsel was unable to produce any authority for such a proposition, which is manifest nonsense.

It is, moreover, we think plain that counsel for Mr and Mrs W and the local authority in this case have all misunderstood and misinterpreted Re S; Re W, which is plainly now the most important decision in this field, and which fully considers two other cases upon which reliance was placed, namely Re S and D and the decision at first instance of Wall J in Re J (Minors) (Care: Care Plan)[1994] 1 FLR 253.

In Re S and D the factual situation was wholly different from that which applies in the instant case. In Re S and D the judge at first instance had reached the point of no return. He is reported by Balcombe LJ as having said in his judgment:-

The judge’s solution to the problem in Re S and D was to make supervision orders in relation to both children coupled with an injunction restraining the mother from removing the children from the foster home in which the local authority had placed them. The mother appealed to this court against the making of the injunction, and local authority appealed against the judge’s refusal to make a care order. This court allowed both appeals, and it was in this context that Balcombe LJ, having set out the terms of sections 1(1) and 1(5) of the 1989 Act made the following well known statement:-

As will be plainly apparent from what we have already said, the judge in the instant case had not reached the point identified by Balcombe LJ in Re S and D. The local authority’s reliance on this decision is accordingly, in our judgment, misplaced.

Equally misplaced, in our judgment, is the local authority’s reliance on the decision of Wall J at first instance in Re J (Minors) (Care Plan)[1994] 1 FLR 253. This was, self-evidently, another case in which the relationship between the court and the local authority was seen as one of mutual respect for the respective roles of each in the proceedings.

In that case, the court made care orders even though the local authority’s plans were inchoate. In the course of his judgment, Wall J said ([1994] 1 FLR 253 at 265B):

That statement, even though it was approved in the speech of Lord Nicholls of Birkenhead in Re S; Re W has no application to the actions of the judge in the present case. Nor does the further statement on which the local authority sought to rely (at [2004] 1 FLR 253 at 262B), namely:-

In our judgment, nothing done by the judge in the instant case comes anywhere near the “overzealous investigation” referred to: nor were the matters about which the judge was concerned “properly within the administrative discretion of the local authority”. They went to the heart of the case, and the critical decision about CO’s welfare which it was the function of the judge to make.

The judge is also criticised for making an interim care order in relation to CO pending the return of the case to his list after reconsideration of the care plan by the local authority. This is a criticism we simply do not understand. What other order was the judge to make? If he had made a care order he would have abnegated his responsibility for CO’s welfare and the local authority would have placed him with Mr and Mrs W. If he had made no order, the outcome would have been in the manifestly inappropriate hands of CO’s parents. A further interim order was the only order the judge could make in these circumstances.

Finally on this topic, we are equally bewildered by the fact that both the local authority and Mr and Mrs W assert that the judge was either invoking or intending to invoke section 38(6) of the 1989 Act. The judge was doing nothing of the kind. In particular, he was not directing a further assessment of CO: he was simply inviting the local authority to reconsider its care plan. Section 38(6) is irrelevant in this context.

Now that the care proceedings are to be re-heard, it will be for the judge re-hearing them to decide what directions should be given as to the evidence to be filed for the purposes of the re-hearing. Inevitably, the children must now be subject to interim care orders under section 38 of the 1989 Act. We will, later in this judgment, return to a consideration of whether this court can or should take a view about the directions the judge taking that re-hearing should give in order to ensure that it is effective. We hope, however, that the local authority will not be so foolish as to think that, because interim orders are being made to hold the ring until such time as final decisions are made, it is entitled to implement whatever placements it thinks appropriate pending the re-hearing. The children must plainly remain where they are until the matter is re-heard. Any attempt to implement the changed care plans without the express approval of the court would, in our view, not only be unprincipled in the context of the relationship between the court and local authorities: it would also be irrational, and likely to be struck down by a court exercising the power of judicial review. Such a court, unlike the judge in Re S and D would have injunctive power to prevent such a move.

We have to say that find a discussion in the terms of the preceding paragraph highly distasteful. As the authorities we have cited demonstrate, both the court and the local authority should be engaged in cooperation, not confrontation. Our response has been provoked by the behaviour of the local authority. We remain, however, of the hope that the rehearing will be conducted differently. We think the local authority should take heed of the wise words of the judge when he said in paragraph 12 of his judgment :-

In our judgment, that is an accurate statement of the law.

This aspect of the case requires us to revisit the history. We will do so as shortly as the subject matter permits.

The local authority first became involved as long ago as January 2003, when a referral was received from the Drug Action Response Team. The mother was at that point pregnant with L. In summary, the mother suffers from a bi-polar disorder for which lithium had been prescribed in order to prevent psychotic episodes. However, she regularly fails to take her medication, and also takes illicit drugs. It was common ground in the proceedings that she was incapable of caring for the children, and there can be little doubt that the profound level of disturbance demonstrated by the children, notably CH and CO, derives from the chaotic life style to which she subjected them.

On 31 August 2005, the mother was detained in hospital pursuant to section 3 of the Mental Health Act 1983. She remained in hospital until 15 November 2005. The judge found that during this time the main burden of caring for the children fell upon their maternal grandmother. At the same time, the children’s father was abusing alcohol and, as the judge found “failed to play an active role in the children’s lives at their time of greatest need”. The father did make an application for a residence order in September 2005, but then failed to attend court on 27 October 2005, when his application was due to be heard. This led the local authority being ordered to file a report under section 37 of the 1989 Act, and by applications dated 27 November 2005, the local authority applied to the court for interim care orders. The children have remained in the interim care of the local authority ever since.

It was not disputed by the children’s parents that the threshold criteria under section 31 of the Act were satisfied. The judge stated, and we have no doubt he was right, that:-

The question for the judge, accordingly, was what, if any orders under the 1989 Act were necessary. He directed himself, correctly, in our judgment as to the approach he had to adopt to the children’s welfare. He recognised that the children were “much loved” by their parents, grandparents and extended family. He noted, however, that “all the evidence in this case points to the exceptionally demanding skills required to look after these three children, particularly when together”. It was hardly surprising that the maternal grandparents found it beyond their capabilities to care for the children between September 2005 and their placement in foster care on 25 November 2005. By the time the case reached its final hearing, the children had been in foster care for approaching 14 months. The judge regarded final decisions as to their placement as “essential” and required “as a matter of urgency”.

The extent of the damage suffered by the children in their parents’ care was demonstrated by the fact that the local authority had reached the clear conclusion that it would not be possible to place the children together. As is well known, courts and local authorities usually strive to keep disadvantaged or disturbed siblings together, often because the only positive experience such children have had of normal family life is a mutually supportive relationship with their brothers and sisters. That this is not so in the instant case is illustrated by a graphic description given by the judge in paragraph 11 of his judgment. We recite the entire paragraph:-

The judge gives cogent reasons for excluding both parents from the care of the children which are not, as we understand it, challenged. Whilst not living together, the parents remain in contact, and the judge found that the father still had a “considerable emotional commitment” to the mother. She was plainly excluded by her psychiatric condition and ongoing drug abuse, and although the July 2006 hearing had been adjourned to enable the father to be assessed as a single carer, the father realistically recognised in his evidence before the judge that he could not cope with caring for all three children. Furthermore, the judge was satisfied that in any event his attempt to do so would be disrupted by the mother.

The judge was sympathetic to the maternal grandparents. They struck him as “a genuine and thoroughly decent couple who have done their best to pick up the pieces from the emotionally disastrous trail of (their daughter’s) life”. He also noted that they had, for many years, cared for the mother’s first child, now aged 10. As we have already stated, and as the judge found, they were unable to cope with the care of all three children in the autumn of 2005. They had also, the judge found, been led by the local authority to believe that the placement of CO with Mr and Mrs W was unlikely, and had thus become resigned to the local authority’s plan for all three children to be separately adopted. In these circumstances, they had not put themselves forward as carers, preferring to revert to the role of grandparents.

In relation to CO, Ms B’s view, supported by the guardian, was that Mr and Mrs W would not be able to meet his complex needs. That view had been confirmed by an assessment from an independent agency worker, DW, who advised that Mr and Mrs W should not be approved as long term carers for CO. We do not think it necessary for the purposes of this judgment to go into the detail of DW’s report. Suffice it at this point to say that up until the meeting of the fostering panel on 18 December 2006, the view of the local authority, supported by the guardian and the independent professional evidence gathered in the case was that the three children should be placed in three separate adoptive households.

The cases of CH and L had been placed before the adoption panel earlier in 2006. Adoption outside the family in separate placements was approved by the panel in both cases.

CO’s case was placed before the fostering panel on 20 November 2006. The panel had before it DW’s report. The judge records what happened in paragraph 21 of his judgment:-

We pause in out recital of the facts to say that we have serious doubts about the advice given to Mrs S. The view expressed by the judge, which we have already set out in the preceding paragraph, and with which we agree, is that the local authority was not bound by the decision of the fostering panel. We were not referred to any “present regulations” which supported the advice given, and the argument that the local authority was bound by the panel’s decision is, in our judgment, wholly undermined by its decision not to pursue the care plans for CH and L, both of whom had been before the adoption panel and approved for separate adoptive placements.

Furthermore, we wholeheartedly endorse the first two sentences of the following paragraph of the judge’s judgment:-

We also take the view that the judge was full entitled to reach the conclusions expressed in the final two sentences of this paragraph.

The judge was plainly of the view – also held by Ms B and the guardian, that the needs of the children required all three children to be placed in separate adoptive families, and that the local authority’s change of care plan was unwarranted. In our judgment, this was a conclusion which he was plainly entitled to reach, and his decision to invite the local authority to reconsider its care plan for CO was not only manifestly open to him, but one which was necessary if he was to fulfil his duty to make orders which he believed to be in the best interests of the children. The judge then completes his judgment with a detailed exposition of why the children required separate placements. For the purposes of this judgment it is unnecessary for us to repeat his reasoning.

PA gave evidence to the judge. The judge dealt with her evidence in paragraph 33 of his judgment:-

The judge then went on to read into his judgment the whole of Ms B’s statement prepared for the fostering panel. He accepted her assessment of CO. He then dealt in detail with the evidence of Mr and Mrs W and the guardian. His conclusion was that it was just not in CO’s best interests to be placed with Mr and Mrs W. He needed carers who could be matched to deal with his special needs. “Good enough” parenting of the type that could be provided by Mr and Mrs W was insufficient. The revised care plan for CO was not in his interests and could not be approved.

The judge then considered and rejected the proposal that he should adjourn his adjudication in relation to CO and L to allow the maternal grandparents to be assessed as carers for them. He found himself unable to take that course, even though it was the guardian’s fallback position if the local authority was unwilling to alter its care plan for CO, and indeed was supported, albeit at a very late stage, by the local authority itself. The judge stated:-

Having expressed respect for the maternal grandparents’ effort to hold the family together, the judge explained that he was not prepared to delay his decision in relation to CH and L, and made both care and placement orders in relation to them. The final paragraph of his judgment relates to CO, and states:

We have reviewed the judgment in some detail. It is, however, sufficient for our purposes to say that, had the local authority not changed its care plan for CO, any appeal against the judge’s decision to make care orders and placement orders designed to achieve separate adoptive placements for each child would have stood absolutely no prospect of success. As it is, the only reason that we have felt obliged to intervene is the conduct of the local authority since the hearing before the judge, to which we now turn.

In accordance with paragraph 3 of the reasons given by Wall LJ in directing the oral hearing in his court (set out in paragraph 17 of this judgment) we invited counsel for the local authority to provide us with documentary evidence of the outcome of the local authority’s reconsideration of CO’s care plan. With some difficulty, we extracted from the local authority what turned out to be a redacted note of a conference with their counsel, Mrs Gosling, held on 18 January 2007, three days after the judge had given judgment, at which, of course, the transcript of the judge’s judgment was not available.

In the interests of time, we did not debate the local authority’s right to redact the document in order to exclude from consideration by this court matters said to form the basis of a plea of legal professional privilege. We note in passing, however, that the local authority had not hesitated to tell the judge that the reason it felt constrained to follow the advice of the fostering panel was legal advice that “under present regulations, the adoption panel would conclude that if a kinship placement was approved, there was a duty on the local authority to place within the family” – see paragraph 21 of the judgment set out at paragraph 60 above. However, whether or not the local authority could sustain that position in proceedings for judicial review in which the lawfulness of their decision making process was in issue is a matter which we leave open to be decided, if necessary, by the judge taking the re-hearing.

We have to say, however, that wesimply do not understand why, in the light of paragraph 3 of Wall LJ’s reasons set out in paragraph 20 above, the local authority had not come to court fully prepared to explain its position to the court. Effectively, the only reason these appeals have been allowed, and a re-hearing ordered is because of the fresh evidence and behaviour of the local authority following the judge’s order. Yet no attempt was made to seek permission to adduce fresh evidence, and is apparent from what follows, this court was treated with undisguised discourtesy.

The minute of the conference, which is described as a draft, shows that it was attended by a number of local authority personnel, comprising the county manager, children’s services; the locality manager of children’s services; the team manager and the social worker (Ms B) for the local children and families team; the senior manager, family and youth; the team manager of the family placement team; the independent reviewing officer and the local authority’s solicitor and its acting senior child care solicitor. It is notable that the conference was not attended by the Director of Social Services or the person whom we were later told fulfils this function, namely the Director of Children’s Services.

The conference began with a summary of what had occurred before the judge. It was reported that the local authority had sought leave on the first day of the hearing to withdraw its final written care plans in relation to CH and L on the basis that it wished to carry out an assessment of the maternal grandparents as suitable carers for CH and L. The local authority had sought an adjournment to enable this to be carried out. The judge had refused leave to the local authority to withdraw the care plans and to adjourn the applications for care and placement orders. It was also reported (erroneously) that the judge had “adjourned the proceedings in respect of (CO) until such time as the local authority changes its care plan”. It was also reported (again erroneously) that because the maternal grandparents would not be able to fund an appeal, they would be “dependent upon the local authority for any further action”. It was reported that the judge’s stance had been supported by the guardian.

There is then a redacted passage which contains counsel’s advice. It is, however, plain from other unredacted passages that her advice to the local authority was to appeal the judge’s decision.

Having adjourned to read the draft minute of the conference with counsel, it was abundantly plain to us that it did not fulfil the terms of paragraph 2 of the judge’s order. First and foremost, of course, the transcript of the judgment was not available. But even allowing for that deficiency, there was no discussion of the judge’s reasoning, and no re-evaluation of the local authority’s position in the light of what the judge had said. He was simply thought to be wrong, and his decision, as a consequence, should be appealed.

We therefore enquired of Mrs Gosling what further consideration had been given to the matter once the transcript had become available. We asked to see the minute of the further meeting which had taken place to discuss CO’s care plan in the light of the judgment. We were initially told that there had been a meeting, but that it has not been minuted. After taking further instructions, Mrs Gosling informed us that there had not been another meeting, merely an exchange of view. She was, however, quite unable to tell us when, where or between whom the exchange of views had taken place; what the actual decision was; and what the reasoning process behind it was. All that she could say was that it confirmed the local authority’s decision to appeal. We find everything we have set out in this paragraph unacceptable, indeed deplorable.

After further probing, we were told that there was a statement from JF, the local authority’s director of children’s services. As we have already pointed out, JF had not been present at the conference with counsel on 18 January. Her statement, which was dated 28 February 2007 (the date of the hearing in this court) was faxed to the court on the morning of the hearing, and arrived after we had sat. Whilst we appreciate that the case had been ordered into our list at short notice, we find this latest manifestation of the local authority’s attitude to the court equally unacceptable.

We were told by Mrs Gosling that the local authority did not have a director of social services, and that JF, as director of children’s services, was the relevant senior officer in the local authority, and the person to whom the judge’s request for reconsideration of CO’s care plan was properly addressed. Even accepting this to be the case for present purposes, we find JF’s statement both inadequate and unsatisfactory.

The first substantive paragraph of the statement reads: -

We have difficulty in understanding what JF is referring to in this sentence. We have considered setting out the whole of the two page document in order to demonstrate its manifest inadequacies. We have decided that it is unnecessary to do so. Suffice it for present purposes to say that, apart from the bare assertion in the first paragraph that she had complied with paragraph 2 of the judge’s order, not only is there no discussion of the judge’s judgment anywhere in the statement: it does not even rate a mention. Nor is there any discussion of the judge’s decision, and the reasons he give for it. The document is nothing more than a bland re-statement of the local authority’s position. It is patently not a compliance with either the judge’s order or paragraph 3 of Wall LJ’s reasons. It seems to us to demonstrate, yet again, this local authority’s total misunderstanding of its relationship with the court, and its responsibilities to the children in relation to whom it has taken care proceedings.

What makes the matter even worse, however, is that the statement nowhere reveals what Mrs. Gosling told us on instructions, which was that the local authority had not only taken the decision to reassess the maternal grandparents as carers for CH and L on 4 January 2007, but that they had already begun the process of re-assessment, which started on 1 February 2007 and was to be completed by the end of March. Counsel added that so far the assessment was extremely positive.. We are astonished that JF did not see fit to say anything about this in her statement. All that is there is the cryptic paragraph: -

It is, we think apparent by this point that the only reason we are interfering with the judge’s perfectly proper order is because of the unprincipled conduct of the local authority. We have no more power than the judge to compel the local authority to re-amend its care plans. What, however, is plain is that the local authority is determined not only to place CO with M and Mrs W, but also to press ahead with its reassessment of the maternal grandparents as carers for CH and L. Thus, if we leave the judge’s order undisturbed, we would be leaving in place care and placement orders for CH and L based on care plans which the local authority has no intention of implementing. We do not think that Parliament intended such an outcome when it passed the Children Act 1989.

In our judgment, therefore, what has happened since the hearing makes it inevitable that the care proceedings must be reheard. Furthermore, we are unhesitatingly of the view that in addition to any further assessment which the local authority may wish to carry out (and which this court has no power to prevent) it is essential that there are wholly independent assessments of Mr and Mrs W and the maternal grandparents by professionals whose stature and competence is recognised on all sides. To put the matter brutally, this local authority had demonstrated (Ms B apart) that its decision making processes are flawed, and that its judgment cannot be trusted.

We very much hope that when the matter comes before the allocated High Court judge for directions the local authority will have reflected carefully on this court’s judgment, and will agree that all further assessment should be carried out independently and on joint instructions. That, however, is the only guidance which we can properly offer to the allocated judge. That matter is plainly urgent. There has already been very substantial delay. We express our gratitude to the children’s foster parents, whom we direct should be shown a copy of this judgment and the judgment given by the judge, for their agreement to care for the children pending the outcome of the rehearing. We would also like to congratulate them on the care they have been able to give the children, in what have been very difficult and stressful circumstances.

We direct that the case should be heard by a judge with authorisation to sit in the Administrative Court because the guardian made clear her determination to seek judicial review of the decision of the fostering panel and, if necessary, the local authority’s decisions; (1) to change the care plan in relation to CO; (2) not to implement the care plans in relation to CH and L; and (3) its refusal properly to reconsider when invited to do so by the judge. We were pleased that Mrs Gosling was able to agree that permission to apply for judicial review would not be disputed by the local authority, and that there was an arguable case for it. This will undoubtedly speed up the process.

We have already made the point that it would be wholly undesirable to have separate proceedings under Part IV of the 1989 running concurrently with proceedings for judicial review in relation to what is essentially the same subject matter. There is abundant authority this is a course against which this court has set its face: - see, in particular, Re V (a child) (care proceedings: human rights claims)[2004] EWCA Civ 54, [2004] 1 WLR 1433; its sequel Re V (Care Birth Actions)[2004] EWCA Civ 1575, [2005] 1 FLR 627 and Re J (a child) (care proceedings: fair trial)[2006] EWCA Civ 545, [2006] 2 FCR 107 – see, in particular, the judgment of Wilson LJ at paragraph [30].

This court’s view remains very firmly that whilst care proceedings are pending, any ECHR issue which arises falls to be dealt with in the care proceedings, not in separate proceedings under the Human Rights Act 1998 (HRA 1998). The same applies where judicial review is concerned. Thus it is, for example, misconceived for a guardian or parent to seek judicially to review a care plan in proceedings separate from the pending care proceedings themselves. Any consideration of the care plan and its appropriateness can and should normally be dealt with within the care proceedings.

The highly unusual circumstances of this case may make it appropriate for the guardian to consider seeking judicial review of the decision making processes of both the local authority and the fostering panel. If that is the case, it must be done either within the care proceedings or in proceedings for judicial review which are consolidated with the care proceedings and heard at the same time by the same judge.

Finally, we revert to Re S; Re W. That case, of course, concerned possible remedies available to parents after final care orders had been made, and the court which had made them no longer had any role under Part IV of the 1989 Act. The case is nonetheless helpful, however, because it demonstrates that where an action under HRA 1998, (or, in our judgment, proceedings for judicial review) are available to parents (or, in the instant case, the children’s guardian) the actions of the local authority can be controlled by the remedies available to the court under HRA 1998 and judicial review. Thus an unlawful decision of a local authority can be quashed : - see the decision of Holman J in Re M (Care: Challenging decisions by Local Authority)[2001] 2 FLR 1300, approved by Lord Nicholls of Birkenhead in paragraph 46 of his speech in Re S; Re W. Lord Nicholls reverts to the point in paragraph 62 of his speech, where he says:-

Although Lord Nicholls is discussing possible actions after the making of a final care order, his words seem to us equally apposite to pending care proceedings. The circumstances in which applications for judicial review will be appropriate in pending proceedings will, we think, be highly unusual, and we remain of the view that in the overwhelming majority of cases, ECHR considerations will fall to be dealt with under Part IV without recourse to an action under HRA 1998 or proceedings for judicial review. However, on the particular facts of this case, where the care proceedings are to be reheard, and the local authority’s decision making process is a key issue, we take the view that judicial review proceedings are not only appropriate but may be necessary in order to protect the children from removal from their present foster carers without the court’s approval pending the final determination.

We retain the hope that the local authority, after further reflection, will agree that the only proper way forward is to leave the children in their current placement under interim orders, and for the court to give directions for the filing of appropriate independent professional evidence designed to promote the best interests of all three children. This is not, of course, to say that the local authority is not entitled to form a view about the children’s future and put it before the judge: of course it is. What is impermissible, in our judgment, is the local authority’s apparent belief that it can ignore the court’s views, and change its care plans for the children at will and without reference to the guardian or the court.

For the guardian, Miss Julia Cheetham helpfully drew our attention to the decision of Munby J in Re X; Barnet London Borough Council v Y and Z[2006] 2 FLR 998. That was a case in which the judge refused to endorse a local authority’s care plan, and invited the local authority to reconsider. It duly did so: - see [2006] 2 FLR 998 at 1048 (paragraph 162). Miss Cheetham did not appear before the judge, but we are surprised and disappointed that this decision does not appear to have been drawn to his attention by any of the other advocates appearing before him.

We would also wish to associate ourselves with the views of Munby J in paragraph 104 of the same case [2006] 2 FLR 998 at 1030, when he criticises the local authority for taking an important decision in pending care proceedings without any warning to the guardian and without involving her in any way. We have already expressed our agreement with a similar sentiment expressed by the judge in the instant case. Plainly, issues as to the independence of the guardian will arise if the local authority seeks to involve the guardian in pending care proceedings in its decision making process for the child or children in question. That, however, is an entirely separate issue from the need to keep the guardian in the picture, to seek the guardian’s views on a proposed course or action and to inform the guardian about what is happening or what is proposed, all of which are tasks which, as a matter of good practice, the local authority should perform as a matter or routine.

In the instant case, the local authority’s misunderstanding of the guardian’s role is disturbing. One of the clearest manifestations of this misunderstanding is the local authority’s failure to respond to an entirely proper letter written on the guardian’s behalf seeking to know the outcome of the local authority’s reconsideration of its position following the judgment, and asking to see a minute of the meeting in question. This local authority needs, we think, to be reminded that the guardian is appointed by the court as the children’s representative, and that one of the guardian’s functions is fearlessly to protect the children concerned against local authority incompetence and maladministration, as well as poor social work practice. These are duties which a local authority should respect and facilitate.

These, accordingly, are our reasons for the course we resolved to take on 28 February. We will make a copy of this judgment available to both the President of the Family Division, and to the Family Division Liaison Judge for the Midland Circuit, McFarlane J so that the former can allocate an appropriately qualified judge to give directions and to hear the case as soon as possible.