C. and D. and S. and OTHERS v. THE UNITED KINGDOM
Inadmissible
Matti Pellonpää;Nicolas Bratza
The applicant S., in application no. 34593/02, is a United Kingdom national born in 1964 and resident in Torbay. She brings this application on her own behalf and on behalf of her children, A., born in 1991, and B. born in 1992, also United Kingdom nationals. She is represented by Ms N. Mole, of the AIRE Centre, London. The applicants in application no. 34407/02, C. and D., born in 1992 and 1989, are represented by their guardian and solicitor, Mr P. Perusko, a solicitor practising in Bedford and are also United Kingdom nationals. The facts of the case, as submitted by the parties, may be summarised as follows. S. met the father of A. and B. in 1987. They started to cohabit in 1989. She already had a son P. from a previous relationship. In 1991 A., a boy, was born and B., a girl, was born in 1992. Serious problems emerged in the family in May 1999 when P ran away from home. He alleged that his stepfather, the father of A. and B., had repeatedly beaten him. Torbay Council arranged a foster placement. The father denied the allegations and S. supported him. At a case conference in November 1999, the father was arrested for threatening behaviour. He was subsequently charged and sentenced to community service. Torbay Council issued applications for a care order in respect of P. and supervision orders in respect of A. and B. In May 2000, P. made allegations of sexual abuse against his stepfather. A child protection investigation followed. The stepfather denied the allegations, supported by S. On 7 June 2000, A. and B. were taken into care pursuant to an emergency protection order and placed in foster care. In July 2000, S. separated from A. and B.’s father. While the paediatric examinations of A. and B. were inconclusive, an expert reported that the father presented an unacceptable risk to them and that S., their mother, was unable to protect them. He recommended therapy for the mother. Torbay Council sought care orders for all three children. Its care plan for P. was that he should remain in care. The care plan for A. and B. was to attempt to rehabilitate them with S. On 1 November 2000, after a hearing, the County Court judge found that the father had sexually abused P. and beaten the children with a slipper. She also found that S. had failed to protect them. While it was agreed that there should be a care order in respect of P., there was some debate as to the orders to be made in respect of A. and B. S. and the children’s guardian elicited assurances from Torbay Council on the package of support and treatment available to the family which was needed to make rehabilitation viable. S.’s counsel sought some guarantee of performance, or a safeguard in respect of breach. She argued, inter alia, that it was neither necessary nor proportionate for a care order to be made on the footing that all power and responsibility should pass to Torbay Council. S. was sceptical, on past experience, whether Torbay Council would carry out the care plan for A. and B. She contended that only interim care orders should be made while the children’s guardian sought final care orders. The judge made final care orders in respect of all three children expressing confidence that Torbay Council would implement the care plan. The applicant appealed. The care plan had envisaged reunification within 6-9 months. Within the four and a half months which followed between the orders and the appeal hearing, little happened. Meetings occurred between S. and the social worker assigned to A. and B. None of the planned family therapy work took place. No social worker was provided to assist S. The Hillside Family Centre programme was not started until March 2001. No therapy was started for the mother. The Court of Appeal later called this a “striking and fundamental failure” to implement the care plan and noted that most of the assurances given by the social workers and accepted by the guardian ad litem and judge had proved vain. It found that this was not a matter of bad faith and that the principal cause of the failings was a financial crisis within the authority leading to substantial cuts in the social services budget. The sad history of potentially disastrous failure fully vindicated the line taken by S.’s counsel at trial. The two brothers, C. and D., were born in 1989 and 1991 respectively, to an American mother and British father. The parents had a volatile relationship with periods of separation. Concern arose as to the parents’ ability to meet the children’s needs centring on the parents’ relationship and the mother’s mental health. In 1999, anxiety deepened. The mother made allegations about the father which were not substantiated. The mother’s conduct deteriorated. Her medical history included diagnoses of borderline personality disorder and bipolar disorder. There was concern about the children’s emotional development. On 2 September 1999, Bedfordshire County Council (“the Council”) applied for care orders and moved the children into foster care under an emergency protection order. The Council’s final care plan was that the children should be placed with the maternal grandparents with continuing direct contact for both parents. The grandparents who lived in the USA agreed to move to England. The children were to remain in foster care until they arrived. The children’s guardian supported this placement. During the period leading up to the hearing, both parents showed significant progress in understanding their own problems and those of the children and made efforts to work with the various doctors and experts engaged in the case. The mother, now conclusively diagnosed as having bipolar disorder and a personality trait, had come to accept her mental illness and the need for treatment and medication. The parents were living together again and wished to have the children returned. On 20 November 2000, the County Court commenced hearing evidence on the care applications. In his judgment on 11 December 2000, the judge stated that there was no question of ruling the parents out in the longterm but, for the present and near future, concluded that the children were unable to return safely to their parents: “possibly, or even probably, it may be appropriate in 12 to 18 months, but not now.” All the parties agreed that the maternal grandparents would be suitable carers, although the evidence that they would in fact be able to move to England was “exiguous in the extreme”. The judge described the care plan as inchoate because of all the uncertainties involved, not only concerning the grandparents but also the outcome of further assessment and therapy for the boys, the final outcome of marital work for the parents and the possibility of improvements with the mother’s personality traits. Nonetheless, the judge made care orders for both children. The parents applied for and obtained permission to appeal, submitting that the judge had erred in granting a final care order when so many issues were uncertain. Meanwhile, there was delay in the maternal grandparents obtaining residence and work permits and the boys were moved due to their foster mother suffering an accident. The Court of Appeal heard appeals in both cases together. In its judgment of 23 May 2001, the Court of Appeal proposed adopting a new approach to meet the situation where the judge’s evaluation of what was in the best interests of a child risked conflicting with events as they occurred after a final care order had been made. It was noted that while the parents might have the right to apply to the courts under section 7 of the Human Rights Act 1998 alleging a fundamental failure to implement a care plan, there was no person to act for a child if the parent did not choose to act. The guardian would have ceased to act and would no longer have any supervisory authority. First, the court enunciated guidelines intended to give trial judges a wider discretion to make an interim care order, rather than a final order. Second, in an innovation described by the House of Lords as “radical”, the Court of Appeal propounded a new procedure for the period after the making of a care order by which at trial the essential milestones of a care plan would be identified and elevated to a “starred status”. If a starred milestone was not achieved within a reasonable time after the date set at trial, the local authority would be obliged to “reactivate the interdisciplinary process that contributed to the creation of the care plan”. The local authority would at least have to inform the child’s guardian. Either the guardian or the local authority would then have the right to apply to the court for further directions. As regarded the Torbay case, the Court of Appeal considered the outcome finely balanced and declined to disturb the judge’s order. It was noted that the children might have remedies under the Human Rights Act if necessary but that meanwhile there had been sufficient progress in the case to make further referral to the High Court an unnecessary distraction in the case. As regarded the Bedfordshire case, it was clear that the care plan was insufficiently mature and that the judge had wanted more time to await developments but had been constrained by case-law to make the full care order. The judge should have insisted on more information before making the order or on a report back if matters did not turn out as expected. It allowed the appeal in that case, replacing the final care order with an interim one and remitting the case to the judge for further consideration. S. appealed in the Torbay case while the Secretary of State and Bedfordshire Council, supported by Torbay Council, appealed against the reasoning of the Court of Appeal, although not against the substantive orders made. Meanwhile, on 2 July 2001, the judge in the Torbay case starred various items in the final care plan: a parenting assessment was to be completed by 6 July 2001, a course of therapy for S. was to be completed by 7 September 2001 and a decision about the immediate goals of the care plan (reunification with S. or long term foster care) was to be made by 7 September 2001. She directed Torbay Council to provide a progress report to the children’s guardian, or in the absence of the guardian, to the court if a starred element was not achieved within 14 days of the specified dates. By the time of the House of Lords hearing, it was stated that the starred plan was working well and the children’s interests were being met. In the Bedfordshire case, setting aside the final care order had the unfortunate consequence of augmenting uncertainty. The maternal grandparents were reluctant to move to England without a final care order. On 24 October 2001, the judge made a final care order with the consent of the guardian and without any opposition from the parents. The care order was not starred. The agreement attached to the care order which was intended to supplement the care plan, indicated that the children would be in the care of the Council, that the maternal grandparents would be encouraged to move to the area as soon as possible and that it was in the best interests of the children for the legal proceedings to end. It was recorded that the parents believed that the family would be rehabilitated within two years and that the parents would apply to discharge the care order in the event that the children had not been placed with the grandparents by 31 March 2002, the grandparents became unable to care for the children or the children were not rehabilitated to the parents’ care within two years. It was further agreed that the Council would convene a statutory review in October 2003 at which the issue of rehabilitation would be specifically considered. In its judgment of 14 March 2002 (Re S (Minors) Care Order: Implementation of Care Plan) and Re W (Minors) (Care Order: Adequacy of Care Plan) [2002] 1 FLR 815), the House of Lords rejected S.’s appeal and allowed the appeal of the local authority. The headnote of the reported case summarised the judgment as follows: “(1) Parliament had set out its clear intention in the Children Act 1989 that once a care order had been made, the responsibility for the child’s care thereafter lay with the authority, not with the courts, and the courts were not empowered to intervene. The division of responsibility was a cardinal principle of the Act. The introduction of a system which gave the court a supervisory role following the making of a care order went beyond the bounds of the court’s judicial jurisdiction because it involved a substantial departure from one of the cardinal principles of the Act. Section 3 of the Human Rights Act 1998 required primary legislation to be read and given effect in a way compatible with Convention rights, so far as was possible, but the judicial innovation of starred milestones passed well beyond the boundary of interpretation and would constitute amendment. The starring system could not be seen as a mere judicial remedy for victims of actual or proposed unlawful conduct by local authorities entrusted with the care of children, justified by ss 7 and 8 of the 1998 Act, as the proposed system would impose obligations on authorities in circumstances where there had been no finding of unlawful conduct and, indeed, no breach or proposed breach of the Convention ... (2) The Children Act 1989 was not itself incompatible with or inconsistent with Art 8 of the Convention. Infringement of the right to respect for family and private life was only likely to arise if a local authority failed properly to discharge its responsibilities under the Children Act 1989; those responsibilities were not themselves an infringement of rights under Art 8. It might be that there was a failure to provide an effective remedy against local authority infringements of rights under Art 8, as while parents would have an effective remedy in the judicial review process or through proceedings under s 7 of the Human Rights Act 1998, in practice a child with no parent to act for them might not always have such a remedy, but that was not in itself an infringement of Art 8. Under the Convention, failure to provide an effective remedy for infringement of a Convention right was an infringement of Art 13, but Art 13 was not a Convention right under the Human Rights Act 1998. Therefore, legislation which failed to provide an effective remedy for infringement of Art 8 was not, for that reason, incompatible with a Convention right within the meaning of the Human Rights Act 1998 ... (3) Circumstances might perhaps arise in which English law relating to some decisions by local authorities concerning care of children would not satisfy the requirements of Art 6(1) ... The failure to provide access to a court as guaranteed by Art 6(1) meant that English law might be incompatible with Art 6(1), but the absence of such a provision from a particular statute did not mean that the statute itself was incompatible with Art 6(1). The absence in the Children Act 1989 of effective machinery for protecting the civil rights of young children with no parent or guardian was a statutory lacuna, not a statutory incompatibility. The inability of parents or children to challenge in court care decisions, however fundamental, made by a local authority while a care order was in force, was a different matter. Judicial review apart, the opportunity to challenge such decisions in court would be in conflict with the scheme of the 1989 Act. The issue of whether in this respect the Children Act 1989 was incompatible did not arise in this case, as the parties concerned had not lacked a court forum in which to express their concern at the lack of progress ... (4) Interim care orders were not intended to be used as a means by which the court might continue to exercise a supervisory role over the local authority in cases in which it was in the best interests of a child that a care order should be made. Problems had arisen about how far courts should go in attempting to resolve the uncertainties within care plans before making a care order. Where an uncertainty needed to be resolved before the court could decide whether it was in the best interests of the child to make a care order at all, the court should finally dispose of the matter only when the material facts were as clearly known as could be hoped. Some uncertainties relating to the details of the care plan were suitable for immediate resolution, in whole or in part, by the court in the course of disposing of the care order application; other uncertainties could and should be resolved before the court proceeded, during a limited period of ‘planned and purposeful’ delay. Frequently the uncertainties involved in a care plan could only be worked out after the making of an order. Despite all the inevitable uncertainties, when deciding to make a care order the court should normally have before it a care plan which was sufficiently firm and particularised for all concerned to have a reasonably clear picture of the likely way ahead for the child in the foreseeable future. The degree of firmness to be expected, as well as the amount of detail in the plan, would vary from case to case, but if the parents and the child’s guardian were 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. 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 were the responsibility of the local authority.” Lord Nicholls noted that the court would only ordinarily grant relief to a person who was victim of an actual and proposed breach of a Convention right. In the Torbay case, the problem had been essentially “drift” in the implementation of the care plan. In practice however, the mother, S., had not lacked a court forum in which to express her deep concern. Her appeal enabled her to raise these matters in the Court of Appeal and the intervention of that court appeared to have galvanised the local authority into taking the necessary action, if belatedly. He went on to state: “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 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 this case have performed a valuable service in highlighting the need for such an examination to be conducted without delay.” In the Torbay case, the Council had decided that long term reunification should be the stated goal of the care plans of A. and B. S. had continued to receive therapy after September 2001, in particular regarding her re-instigation of contact with the children’s father. Contact was suspended in November 2001 as a result of S.’s renewed contacts with the father but resumed after Christmas 2001 and ad hoc overnight stays had taken place by 6 February 2002. The care plans were amended in light of changed circumstances so as to state that shared care (between S. and a children’s home or foster family) was the immediate goal. By February 2003, the children were regularly staying with S. at weekends. The most recent review meeting in August 2003 recorded that the care plan was for shared care, with up to three nights per week with S., together with long term foster placements for A. and B. However, contact is currently less than that, due to difficult behaviour by A. and B. In the Bedfordshire case, the grandparents moved to the United Kingdom, with financial assistance, and the children were duly placed with them on 19 December 2001. They had contact with their parents two to three times a week. By March 2002, a dispute had arisen between the parents and the Council as to the appropriateness of overnight contact. The parents intimated that they might apply to the court under section 34 of the Children Act 1989 to increase their contact rights but did not do so. Contact gradually increased and overnight contact began on 17 August 2002. From September 2002, the children stayed alternate weekends with their parents and after a review in February 2003 this was increased to three weekends per month. At the end of May 2003, a dispute arose as to whether the children should return permanently, which the local authority considered could not yet occur due to lack of compliance with the relevant regulations, in particular that a written agreement be reached with the parents as to various matters. The parents again intimated that they might apply to the court for increased contact but did not do so. By 12-13 June 2003, the children had been formally placed with their parents. At a further review on 9 September 2003, the chairperson of the statutory review considered that an application should be made to discharge the care order although family support would continue. The Council however considered that there should be a further period of assessment. Under section 31 of the Children Act 1989 (“the 1989 Act”), on the application of any local authority or authorised person, the court may make an order placing the child in the care of a designated local authority (“a care order”). The preconditions under section 31(2) are that the court must be satisfied that the child is suffering, or likely to suffer, significant harm; and that the harm is attributable to the care given, or likely to be given, not being what it would be reasonable to expect a parent to give. There is no power under the Act for a care order to be made on terms, or accompanied by directions, whether in accordance with a care plan or otherwise. A care plan may be discharged (section 39(1)) or substituted by a supervision order (section 39(4)). An interim care order may be made under section 38(1) which lasts for eight weeks initially and if renewed for four weeks. The judgment of Lord Nicholls in this case is regarded as the leading authority on the scope for the granting of interim care orders, namely, as a temporary “holding” measure 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 the planning and deciding the future. An interim care order is not a means of exercising a supervisory role over the local authority’s implementation of its care plan but gives the court sufficient flexibility to defer making a final order until satisfied that the way ahead is no longer obscured by an uncertainty that is neither inevitable nor chronic. In deciding whether to make a care order, the court must have before it the details of the local authority’s proposed care plan. This is to be put on a statutory footing by new legislation. Section 121 of the Adoption and Children Act 2002 will insert a new section 31A in the Act requiring a care plan to be prepared by the local authority for the purposes of any application which may result in the making of an order. According to the Government, this was expected to come into force in September 2004. Once a care order has been made, a court retains jurisdiction over two aspects: under section 34, the local authority must allow the child reasonable contact with his parents and the court can adjudicate on any dispute as to what is reasonable contact or to vary or discharge any contact order; the court may entertain an application by the local authority, parent or child, to discharge the care order or substitute some other order e.g. a supervision order. Section 41 provides for the appointment by the court of a “Children’s Guardian” (an officer of the Children and Family Court Advisory and Support Service “CAFCASS”) for the purposes of specified proceedings e.g. applications for the making or discharge of care and supervision orders. CAFCASS’s primary function is to safeguard and promote the welfare of children. When the court rules on an application, the Guardian’s role comes to end. There is no statutory provision for Guardians to have a role outside active court proceedings. Section 118 of the 2002 Act provides for the appointment by the local authority of an “independent reviewing officer” (“IRO”). The IRO is independent of the line management involved in the child’s case and his/her role is to participate in statutory reviews, monitoring the authority’s functions and referring the case to CAFCASS if appropriate. Referral allows a Children’s Guardian to take any necessary action through the courts by acting for the child either in proceedings for judicial review or freestanding claims under the Human Rights Act 1998 (“HRA”). The IRO may also refer a child to a solicitor directly if legal assistance is considered more appropriate. An aggrieved party may appeal the making of a care order to the court on the basis that it was not justified in the circumstances e.g. that the order breaches the Article 8 rights of the parents or children (section 7(1)(b) of the HRA). Representations to the local authority may also be made by parents and children at the statutory reviews which take place after four weeks, three months and then every six months after the care order. The local authority is required to seek the views of all relevant parties. The local authority must also make available a complaints procedure, involving the participation of at least one person independent of the local authority (section 26 of the 1989 Act). Complaint may also be made to the Local Government Ombudsman if any interested party is unhappy about the discharge by a local authority of its functions under the Act. The Ombudsman can investigate complaints of maladministration (e.g. bias, neglect, incompetence, arbitrariness) and issue recommendations as to the steps which the authority should take to remedy the injustice to the person aggrieved (see the Local Government Act 1974). Applications may be made to the courts under the 1989 Act concerning contact arrangements or discharge of the care order. Any decision of a local authority in relation to a child in its care may be subject to judicial review in the Administrative Court. Judicial review does not provide an appeal on the merits of a decision. Grounds of challenge include illegality, irrationality, impropriety, material error of fact, acting for an improper purpose, failure to take into account relevant considerations, or taking into account irrelevant considerations. Judicial review proceedings may also include a complaint of breach of Convention rights, pursuant to section 7(1) of the HRA. The HRA also confers a free-standing right of complaint in the ordinary courts where it is alleged that a local authority has breached Convention rights in its decision-making in relation to a child in its care.