Care Plans: The Court of Appeal Speaks Out

15 Dec

Appearing before Her Honour Judge Black in Portsmouth is one of the few pleasures I have in life, particularly since she accommodates my failing hearing by shouting at me whenever I come within 50 yards of her court. I may not like what I hear her saying but at least I can hear what she’s saying. When you reach my advanced state of decrepitude, you take comfort where you can find it.

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Appearing before Her Honour Judge Black in Portsmouth is one of the few pleasures I have in life, particularly since she accommodates my failing hearing by shouting at me whenever I come within 50 yards of her court. I may not like what I hear her saying but at least I can hear what she’s saying. When you reach my advanced state of decrepitude, you take comfort where you can find it.

During a recent 2-day roller-coaster ride of thrills and spills in Court 5, Her Honour graciously turned the volume up to 11½ and helpfully directed me to CM v. Blackburn and Darwen Borough Council [2014] EWCA Civ 1479.

This case concerned a little girl, M, aged 5. M was cared for by her mother until 9th June 2011 when she was placed in foster care. On 29th May 2012, a special guardianship order was made in favour of the maternal grandmother who was already looking after 2 of M’s cousins.

Unfortunately, M’s grandmother allowed mother and the father of M’s cousins (a schedule 1 offender who had been convicted of sexual offences against children) to have unsupervised contact with her. On discovering this, the local authority obtained an interim care order and M was again removed into foster care. On 14th March 2013, HHJ Singleton QC made a placement order in relation to M. Neither mother nor M’s grandmother put themselves forward as carers for M.

The 2 options available to the learned judge were therefore either adoption or long-term foster care.

The care plan that was ultimately approved by the learned judge said that the local authority would seek an adoptive placement for M for the 6 months immediately following the hearing. Thereafter, it would search for either an adoptive placement or a long-term foster placement for her.

In reaching her decision to dispense with mother’s consent and make the placement order, HHJ Singleton QC performed the required Re B/Re B-S analysis.

On appeal, the learned judge’s Re B/Re B-S analysis was not criticised and mother submitted instead that:

(i) The learned judge’s conclusion that adoption was the most appropriate placement could not satisfy the proportionality test when long-term fostering became an appropriate option within 6 months of the final hearing.
(ii) It would be a distortion of language to measure an option described as being a last resort where nothing else will do if something else will do in as little as 6 months.
(iii) The decision of the Court of Appeal in Re P (Children)(Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625 (which gave guarded approval to ‘twin track’ care planning in cases such as this) could not survive the decision in Re B and so need to be reconsidered.

In dismissing the appeal, Ryder LJ (who gave the leading judgment of the court) noted that the wording of the care plan that was being complained about was not information that the Care Planning Regulations required to be included in the local authority’s care plan for M.

At paragraph 28, His Lordship said:
In summary, therefore, it is no part of a court’s function to fix a timetable within which a local authority is to undertake the functions that are exclusively within its responsibility and operative discretion once a full care order and/or a placement order has been made.  Such a direction would fall outside the jurisdiction of the court. 

There is no requirement in the regulations which prescribe the content of a Care Plan that a timetable for a placement search to be contained on the face of that plan.

Ryder LJ continued that ‘nothing else will do’ did not mean that there could be no other realistic option on the table for the child because the very nature of placement proceedings meant that there would be alternative options that might be at least hypothetically feasible and which may have some merit.

The fact that, after consideration, of the evidence the court had chosen adoption over another option did not mean that adoption was tainted because the other option might have been reasonable and available.

Ultimately, His Lordship answered questions posed by mother’s counsel in this way:
a) The judge’s methodology was right.  She conducted a fact-finding exercise, a welfare analysis of each realistic option, a comparative welfare evaluation and a proportionality evaluation.
b) The statutory tests are not re-drawn by Re B and Re B-S.  ‘Nothing else will do’ is the conclusion of a proportionality evaluation after a process of deductive reasoning not a new presumption and not a standard of proof.
c) It is not necessary to have a contingency in a care plan although it is desirable.  A timetable within which a local authority have to implement a substantive order once proceedings have concluded is beyond the jurisdiction of the court and is not part of the prescribed content of a care plan.
d) Recognising the possibility of failure by a contingency plan is appropriate.  That is quite different from deciding that something other than adoption is required.
e) There is no objection in principle to dual planning in an appropriate case.  This case was appropriate because the placement decision was neither conditional upon the happening of an event nor the success of some extraneous process such as therapy.  It was not a decision that one of two options would do.
The upshot of CM v. Blackburn therefore appears to be that:
(a) A court at first instance is not permitted to consider the mechanics of a care plan.
(b) We’re all to calm the heck down about ‘nothing else will do.’

Graeme Harrison

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