Name of case (citation): T-S (Children)  EWCA Civ 742
Link to the judgment: https://www.bailii.org/ew/cases/EWCA/Civ/2019/742.html
Date: Hearing: 20 March 2019. Judgment: 1 May 2019.
Difference of opinion between the judge and the local authority between adoption and long term foster care.
On 20 November 2018, a 14 day final hearing concerning three boys (aged eight years, four years and 21 months) concluded with the eldest boy, B, being subject to a final care order and the youngest child, K, being subject to care and placement orders. There was substantial dispute concerning the care plan for the middle child, J, who is the only child subject to this appeal.
The Agency Decision Maker (ADM) concluded that J’s welfare would best be served by a long term fostering placement. The ADM placed substantial weight upon the evidence of the local authority social worker who evaluated the attachment between J and his older brother, B, as being of importance. In contrast the independent social worker and the guardian advised that J’s welfare required adoption.
The judge concluded that the social work assessment was ‘fatally flawed’, and stated that he preferred the evidence of the independent social worker and the guardian. As a result the judge extended the interim care order with respect to J to enable the local authority to reconsider its care plan for J.
At the subsequent hearing in December 2018, the local authority applied for permission to appeal the court’s decision of 20 November 2018. Permission to appeal was granted. The ADM remained of the view that adoption was not in J’s best interests, referring to an unamended balance sheet produced to the judge during the November 2018 hearing.
The Court of Appeal granted the appeal but stated that the local authority’s application to appeal was pre-emptive. In December 2018, the judge did not refuse to make a care order. Nevertheless the Court of Appeal ordered that the case concerning J be reheard.
Implications for practice:
S.31A of the Children Act 1989 requires the court to ‘consider’ the care plan, limited to the ‘permanence provisions’. Under the Adoption and Children Act 2002 only a local authority may apply for an order authorising them to place a child for adoption.
A cardinal principle embedded into the structure of the Children Act 1989 and the Adoption and Children Act 2002 is:
- The Family Court is responsible for the making of orders.
- The local authority determines the care plan to be followed for a child once an order has been made.
The Court of Appeal referred to the key authority of Re S and W (Care Proceedings)  EWCA Civ 232 ‘not only for the similarity of the position in that case with that reached in the present proceedings, but also for the clear statement of the law that it contains’.
Paragraph 30 of the judgment in Re S and W states: ‘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...’ Paragraph 35 continues: ‘...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.’
The Court of Appeal confirmed that it is not open to a local authority within proceedings to decline to accept the court’s evaluation of risk no matter how much it may disagree. A local authority could otherwise face an obvious risk of its decision being declared unlawful through judicial review.
The position reached by the court in November 2016 was deemed by the Court of Appeal to be ‘textbook working’. The judge invited the local authority to reconsider its care plan. The December 2018 hearing should have witnessed a re-joining of the judge and the local authority in a detailed analysis of the care plan, taking account of any new evidence, considering the ADM’s statement and hearing submissions from all parties. Where the focus is upon the care plan after the proceedings are concluded, the Court of Appeal emphasised the importance of mutual respect and engagement between the court and a local authority.