(1) W & B (Children) v (2) W (Children) [2001] EWCA Civ 757

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

(1) ON APPEAL FROM PLYMOUTH COUNTY COURT

(HER HONOUR JUDGE SANDER)

(2) ON APPEAL FROM LUTON COUNTY COURT

(HIS HONOUR JUDGE HAMILTON)

[2001] EWCA Civ 757

Case No (1) B1/2000/3480 (2) B1/2001/0094

Venue Royal Courts of Justice, Strand, London WC2A 2LL, Wednesday, 23 May 2001

Between

(1) W & B (Children)

(2) W (Children)

Before

Lord Justice Thorpe

Lord Justice Sedley

Lady Justice Hale

(1) ALLAN LEVY QC and CATRIONA DUTHIE (instructed by Messrs Hooper & Wollen of Torquay TQ1 1BS) appeared on behalf of the appellant.

(1) ANNA PAUFFLEY QC and CLAIRE ROWSELL (instructed by Torbay Council Legal Services of Torquay TQ1 3DS) appeared on behalf of the local authority.

(1) ROBIN TOLSON (instructed by Messrs Woolcombe Beer Watts of Newton Abbot TQ12 2QP) appeared on behalf of the guardian ad litem.

(1)+(2) NEIL GARNHAM and CAROLINE GIBSON (instructed by Office of the Solicitor, Department of Social Security of London WC2A 2LS) appeared on behalf of the Secretary of State for Health.

(2) IAN PEDDIE QC and SARAH FORSTER (instructed by Messrs Motley & Hope of Biggleswade SG18 0AT) appeared on behalf of the appellant.

(2) LEE ARNOT (instructed by Bedfordshire County Council Legal Services of Bedford MK42 9AP) appeared on behalf of the local authority.

Date 23 May 2001

LORD JUSTICE THORPE:

Introduction

[1]In these two appeals the appellants contend that if the Children Act 1989 is not to be held incompatible with the European Convention on Human Rights pre-existing case law governing the interpretation and operation of the Act must be modified in order to achieve compatibility. Of course the facts in each appeal are very different and there are very different merit considerations but since each raises the same fundamental contention directions were given for the two appeals to be listed together. By agreement at the Bar Mr Levy QC presented his submissions for the appellant in Re W & B followed by Mr Peddie QC for the appellants in Re W . Miss Pauffley QC then responded on behalf of the local authority in Re W & B followed by Mr Arnot for the local authority in Re W. Mr Tolson representing the guardian ad litem in Re W & B then made his submissions followed by Mr Garnham who represented the Secretary of State for Health in both appeals. Finally Mr Peddie and Mr Levy replied. The Facts and the Submissions - W & B

[2]In these proceedings the mother Miss S had three children, the eldest being P born in 1987. His father played little or no part in his life until after the commencement of care proceedings in 1999. His effective father was Mr B whom Miss S met in 1987 and with whom she cohabited from 1989. Of their relationship two children were born, M in 1991 and J in 1992. Serious problems emerged in May 1999 when P ran away from home and refused to return. He said that he had been repeatedly beaten by Mr B and that he was frightened of him. The local authority arranged a foster placement. Mr B denied the charge and Miss S supported him. They united to reject and isolate P. At a case conference in November 1999 Mr B behaved appallingly. He was arrested for threatening behaviour, charged and subsequently sentenced to community service. That prompted the local authority to issue an application for a care order in respect of P and for supervision orders in respect of M and J. In May 2000 P told a fuller story. He described how he had been buggered by Mr B on several occasions. The usual investigations followed. Again Mr B denied the allegations with Miss S's support. P was further rejected and isolated. M and J were taken into care and placed with foster parents. In July Mr B and Miss S separated tactically to improve Miss S's case for the return of the two younger children. The paediatric examinations of the three children were inconclusive but Mr Herron, an expert in the field of sexual abuse of children, reported in September his conclusion that the allegation against Mr B was well founded and that Miss S was incapable of protecting the children from him. For her he recommended therapy. At that stage it seems that Miss S's separation from Mr B became real and permanent.

[3]As a consequence of all these developments the local authority founded their applications on physical abuse, sexual abuse and emotional abuse. Mr B was identified as the perpetrator and Miss S was charged with a failure to protect the children as a consequence of her dominance by Mr B and resulting passivity. The local authority sought care orders in respect of all three children, although their care plan for the younger two was rehabilitation to Miss S. Their case was fully supported by the children's guardian Mrs Moseley. The applications were tried by Her Honour Judge Sander sitting in the Plymouth County Court. She heard a good deal of evidence in October and delivered her reserved judgment on 1 November. She found against Mr B that he had sexually abused P and that he had repeatedly beaten the children with a slipper. She found that Miss S had failed to protect the children. She found that both parents had emotionally abused the children, particularly in their response to P's pleas for help. Once those factual findings were made all agreed that there should be a care order in respect of P. However there was considerable contention as to what orders should be made in respect of M and J. During the course of the final hearing Miss Duthie for the mother had effectively negotiated a series of evolutions of the care plan to emphasise the local authority's commitment to rehabilitation and to increase the package of support and treatment to make that possible. In consequence by the time of judgment the judge was able to record:

"Rehabilitation of them to her care is at the heart of the plan. When this will happen depends, the local authority says, on mother's commitment to her permanent separation from Mr B and to the essential work on parenting and protection which to her credit she wishes to undertake. The parenting work will take place two days a week in Halswell House. Ms Frendo has agreed to undertake the therapeutic work recommended by Mr Herron. This will start in November, continue until March and a report will be prepared in April. Contact to M and J is to take place twice per week."

[4]However Miss Duthie sought for her client some guarantee of performance alternatively some safeguard against breach. She argued that it would be wrong for the judge to make a care order which would pass all power and responsibility to the local authority and which would disempower the guardian ad litem. Furthermore she submitted that a care order would breach the mother's human rights since it was not necessary or proportionate to the end to be achieved. Miss Duthie was not supported in this submission by Mr Tolson for the guardian ad litem, whose position had been explored during the course of her evidence. During the course of her cross examination Miss Duthie posed the question:

".... What confidence do you consider, as guardian of the overall picture here, that the court might have in the local authority properly now operating its amended care plan? A - Obviously I have spoken to the local authority and the undertaking is that they will do this piece of work and I hear what you say that things were not done in the past, but the care plan as it stands now, if they keep to the care plan, there is no reason why all the work that is offered should not be done."

When pressed by Miss Duthie she said at the end of her next answer:

"You know, they have given an undertaking and we have to respect that the local authority will do their work."

[5]When questioned by Miss Rowsell for the local authority this was put to her:

"Q - Given the package of support, assessment and help and the local authority's view that these children should, if possible, be reunited with their mother, as the guardian ad litem you would be aware that there are a number of people who are going to help this mother are there not? They are an independent reviewing officer, practice supervisor, social worker, team manager, Nicky Frendo, Hillside, SATTS, and children and family guidance, so on top of that there would be you and the solicitor. She has a lot of support there anyway has she not? A - There would not be me or the solicitor if there was a full care order. Q - No, but what I am saying is that there being a full care order, that is a large packet of support for mother."

[6]The judge rejected Miss Duthie's plea for interim care orders during the implementation of the care plan. She said:

"I accept that the guardian ad litem will drop out of the picture however I am confident that Mrs Luscombe and Mrs Allen will carry out the care plan and will carefully review the work, therapy and progress that everyone hopes Miss S will make. It was unfortunate that both social workers were only appointed about the time of P's June interview so they had not had the opportunity to get to know the parties or the children before these proceedings got under way. However I am satisfied that they have both responded positively to the discussions before and during this hearing in amending the care plans and arranging for the agreed help and support for Miss S. I am sure they will ensure the work progress in the same spirit and review it in accordance with their statutory duty to do so. Miss Duthie for mother referring to the Human Rights Act argued that a care order was not necessary or proportionate to the end to be achieved. I cannot agree with that submission. Sadly I have found that Miss S has shown that she is unable to parent or protect the children adequately. The future for M and J is uncertain at present and depends on Miss S's response to the programme of work and therapy the local authority have offered her in support of her wish for the children to be returned to her care. The local authority's plan, if it can be done safely, is to return the children to her care. At present it would not be safe to do so. In these circumstances I am satisfied having approved the care plan that it is necessary for there to be care orders, that it is proportionate to the needs of the children and that it is in the best interest of the children Miss Duthie also submitted that Miss S would be prejudiced by the making of a care order in that she would have no remedy if the local authority did not adhere to its care plan. Were those circumstances to arise I believe that Miss S could restore the matter to the court either by an application for increased contact or by applying to discharge the care order. I do not see the difficulties which Miss Duthie put forward preventing Miss S from taking one of these courses of action which needless to say I hope will not arise."

[7]Mr Levy's application for permission to appeal was granted by Ward LJ at an oral hearing. Mr Levy contends that even on the application of the authority of this court prior to the commencement of the Human Rights Act 1998 the judge's rejection of Miss Duthie's submission was erroneous. Alternatively he submits that the advent of the Human Rights Act 1998 obliges this court to redefine the role of the trial judge after finding that the section 31 threshold has been crossed and after accepting the local authority's care plan. In the further alternative he submits, if he has to, that he is entitled to a declaration of incompatibility. That is of course only the baldest summary of the skeleton argument presented to support the application for permission. Of great significance is the accompanying application to adduce fresh evidence. The application is not contentious, indeed both the local authority and the guardian ad litem seek to introduce their independent accounts of subsequent developments. In summary during the four and half months since judgment there has been what Mr Tolson rightly described as a 'striking and fundamental' failure to implement the care plan. Most of the assurances given by the social workers and accepted in turn by the guardian ad litem and the judge have proved vain. This seems particularly surprising and regrettable given the extent to which all parties concentrated on the evolution of the care plan and the support package during the course of the trial. This is not a case of bad faith. The most that could be said against the local authority is that they too readily promised support at trial for which the recipient mother subsequently proved to be ineligible. The principal cause of these serious failings has been a financial crisis within the unitary authority leading to substantial cuts in the social services budget. The detail of the local authority's failings is the subject of a schedule prepared by Miss Duthie upon which both Miss Pauffley and Mr Tolson have commented. I will summarise the principal heads: i) Reunification within six to nine months . The appellants simply say nothing has happened. Miss Pauffley says that her clients remain committed to rehabilitation although she accepts that the prerequisites to ensure safety will take longer than stated to the judge. Mr Tolson enters his caveat to Miss Pauffley's response. ii) The family therapy . The appellants point out that the SATTS work has not happened. Miss Pauffley says that since it is court directed work it will be afforded priority and should commence shortly. Mr Tolson points out that it is not court directed work. iii) An adult social worker for the mother . This is perhaps the appellant's most serious illustration of breakdown. Only after the trial was it discovered that the mother did not meet the criteria set by the department for adult social services. Equally another department concluded that their learning disability service did not appear suitable for the mother's needs. Obviously it is unsatisfactory for services to be promised without a single enquiry to ensure that they are available. iv) Hillside Family Centre . Here the appellant complains of gross delay which Miss Pauffley has to concede. However she states that the twelve week programme commenced on 5 March and there is no reason to suppose that it will be interrupted. Mr Tolson feels unable to share her confidence. v) Therapy for the mother . Here the appellant points out that Ms Frendo cancelled her work with the mother because of the failure of the other necessary parts of the support package. Miss Pauffley says that now that the Hillside Family Centre programme has commenced Miss Frendo should be able to resume. Mr Tolson is doubtful and in any event says that a more extensive programme with Miss Frendo than was first budgeted may now be required.

[8]This summary of a sad history of potentially disastrous failure fully vindicates the line taken by Miss Duthie at trial. Miss Pauffley has presented the council's response with characteristic realism and economy. She tells us that the social services department has itself been the victim of swingeing and unforseeable cuts. She submits that: i) the judge was clearly right to make the choice for a full care order; ii) all the rights and remedies afforded to parents and children after the making of a full care order render the Act fully compliant with the European Convention on Human Rights; and iii) the clear boundary drawn by this court between the powers and responsibilities of the trial judge and the powers and responsibilities of the local authority require no revision in response to the Human Rights Act 1998.

[9]Mr Tolson too seeks the dismissal of the appeal. However he fixes upon the many breaches of the care plan within the brief interim and submits that the local authority are arguably in breach of their duty towards the children under section 6 of the Human Rights Act 1998 and seeks a direction for trial under section 7 by a judge of the Family Division to establish the nature and extent of those breaches, if any. The Facts and the Submissions - W

[10]The history in this appeal contrasts sharply and I will summarise it briefly. The mother is American and in her late 30's. The father is English and in his mid 40's. They married in 1988 and were seemingly on the verge of settled and secure middle class family life. Two boys were born, J in 1989 and A in 1991. However the marriage and family life have been equally disrupted largely as the result of the mother's mental health. It is beyond question that she suffers from bi-polar affective disorder which is now properly treated and controlled but which in the earlier years of the marriage seems to have been insufficiently treated and insufficiently acknowledged by the mother. The father's reaction seems to have been to develop an emotional detachment from the mother and the children. Throughout the marriage the years of separation outnumbered the years of cohabitation. In the mid 90's the mother and the two boys spent more than two years with her parents in Arkansas. As an added complication in 1997 J developed Perthes disease for which he has required hospital and operative treatment and which leaves him with some disability. Although there has been some social services involvement since 1992 the first application for care orders in respect of the two boys was issued by Bedfordshire County Council on 2 September 1999. The boys moved to foster carers a few days later and there were unfortunately a number of unsatisfactory placements prior to their arrival on 18 February 2000 with Mr and Mrs F. At a relatively early stage the case was transferred to the Luton County Court and Dr Glaser was instructed as the expert in the field of child and adolescent psychiatry. There were many other experts in the case. There were the doctors and the psychiatric social worker responsible for the mother's treatment. There were others reporting on J and A. There was the family therapist working with the parents on their marital relationship and supporting the reconciliation and resumption of cohabitation which commenced last summer. There was a hearing before His Honour Judge Hamilton sitting in the Luton County Court on 12 and 13 June. Clearly the case was not ready for conclusion and it was adjourned on terms for further assessments and for the parents to demonstrate that with the advantage of the various treatments and supports they were able to offer the boys a safe home. The judge had the case again in July and in September when contact arrangements were varied. The final hearing took place over eleven days culminating in a judgment delivered on 11 December. The judge at the beginning of his judgment noted the assumption that at the June hearing the only proper disposal would have been a full care order. He then set himself the following course. First to test whether as at May 2000 the only realistic disposal would have been long term foster care. If that conclusion were justified on the evidence, as he found that it was, the only remaining question was whether in the interim, as a result of their reconciliation and the improvement in the mother's mental health, it would be safe to return the children to their parents immediately or in the very near future. Over the course of the following 100 pages the judge reviewed the evidence and particularly cited at length from the many reports that had been filed, since it was a case in which he considered that the answer must lie in the expert opinion on the question he had formulated. At the conclusion of his review of the expert evidence he expressed himself in the following terms:

"Can the boys go back yet? I ask the question deliberately in that form because, in my judgment, there is no question at all of ruling these parents out long-term. The evidence does not begin to justify it. I have to say that I can see some real hope for the future. In J's case, and one has to consider this question both from the view of the context of the boys and also the parents, the answer sadly is plainly no. All the professionals are in agreement. J himself has said that he does not want to go back yet. A has consistently said that he does want to go home but, until the very last letter, he has always qualified that wish with expressions of concern. The possibility of his separate return has been canvassed, but Dr Glaser, in particular, had reservations, as has been seen, and is firmly of the view that, as with J, A should not return yet .... It would be too much of a risk to allow the boys to return home on the basis of any phased return now. Certainly one would therefore have to say that, realistically, their return is ruled out for the next twelve months or so. Regretfully, therefore, I cannot order their return now. Possibly, or even probably, it may be appropriate in twelve to eighteen months, but not now."

[11]The judge then referred to the fact that the boys could not remain with Mr and Mrs F for more than six to twelve months and that any move from the F's might be strongly detrimental to their welfare. The next conundrum was the ability of the maternal grandparents, Mr and Mrs S, to relocate from Arkansas to Biggleswade. They were certainly willing to come and their offer of primary care for the boys was generally acceptable. But as the judge said, 'the information, however, as to their ability to come is exiguous in the extreme'. He summarised all the uncertainties thus:

"There are a number of wholly unanswered questions on the broader spectrum. For example: 1. What is required by way of further assessment and eventual therapy for the boys? How long will it take? What are the chances of success? In particular, even Dr Glaser does not know what J might need. There will have to be a further assessment. 2. What will be the final outcome of the marital work for the parents? The progress that has been made is very encouraging. Will it go on to the stage where Mr Lafon will say, 'yes, the time has now arrived'? 3. What improvements can be made with the mother's personality trait.? 4. Will the S's be coming at all? (A practical question). Although these questions of necessity remain unanswered, any objective view of further potential significant improvement, certainly so far as the parents are concerned, must, in my judgment, be a positive and optimistic one. The care plan can only be described as inchoate - at its height the submission of a search for the least bad alternative. The local authority's objective in the proceedings is as clear as could be. As the social worker said, candidly and frankly in her evidence, the desire of the social work team is to get the court to make the decision for a care order now so that we can take a decision as to what is to happen if the S proposal breaks down, and not have to bring it back to court."

[12]The judge then proceeded to a review of the relevant case law contrasting C v Solihull Metropolitan Borough Council

[1993] 1 FLR 290

with Re J (Minors: Care Plan)

[1994] 1 FLR 253

, approved in Re L (Sexual Abuse: Standard of Proof)

[1996] 1 FLR 116

and Re CH

[1998] 1 FLR 402

. However he then recorded the submission made by Mr Peddie QC that Articles 6 and 8 of the European Convention on Human Rights required the reconsideration of the principles developed in those relevant cases. He dismissed Mr Peddie's submission saying:

"Since, as I made clear during the hearing, the role of the court of first instance is to follow existing and binding authority until a higher court has reconsidered the position in the light of the Human Rights legislation. Accordingly, I have no choice, as I see it, but to follow the existing authority and in particular, Re J ."

[13]The application of that authority to a conclusion that rehabilitation was not on the cards for twelve to eighteen months compelled a full care order. Although the terms of the judgment are unclear, Mr Peddie tells us that the judge expressed his reluctance to let go, alternatively his anxiety as to the local authority's future performance, by directing that he receive a transcript or a minute of future statutory reviews. Mr Arnot has doubted whether that was the judge's intention but counsel for the guardian in a written submission seems to share Mr Peddie's understanding and consequently submitted with force that the judge had no jurisdiction so to direct in the light of this court's decision in Re T

[1994] 2 FLR 423

[14]Mr Peddie subsequently obtained permission to appeal at an oral hearing at which directions were given for the appeal to be united with the pre-existing appeal of W & B . At that hearing Mr Peddie acceded to the suggestion that he too should bring in the Department of Health and it was finally agreed that the guardian would not be represented but would file a report and an amended skeleton argument in support of the local authority. In the event the guardian elected not to file a skeleton but helpfully gave us an account of developments since trial. She reported that the S's applications for residence and work permits were being very slowly processed and that Mrs F had suffered an accident necessitating the boy's temporary move to another family.

[15]Mr Peddie in support of his appeal adopted the submissions made by Mr Levy. He criticised the judge for failing to afford his clients their convention rights, seemingly holding that he was bound by pre Human Rights Act authority unless and until disapproved by a higher court. He submitted that his client's convention rights required the judge at a minimum to withhold absolute control from the local authority until the many uncertainties were resolved, including, of course, his client's continuing progress to readiness as well as the outcome of the S's application for rights of residence. The Secretary of State

[16]Mr Garnham for the Secretary of State was, of course, the only counsel common to both appeals. He submitted that the construction which this court had put upon the architecture of the statutory scheme after the making of a final care order was perfectly compatible with the requirements of the Convention and the Act. Like the other respondents he stressed the continuing rights of application to the court held by parents and children, their entitlement to participation in statutory reviews, the independence of those reviews as well as the additional safeguards and services introduced by many local authorities. He submitted that if any authority nevertheless in an individual case acted in breach of its convention obligations sections 6-8 of the Human Rights Act 1998 afforded ample remedy to those whose rights might have been infringed. If the court did not accept those submissions his alternative submission was that the obligation under section 3 of the Human Rights Act 1998 to construe the Children Act 1989 in such a way as to be compatible with the convention permitted the court to extend the boundary of the judicial function to enable judges to use interim care orders as a means of retaining some continuing control in exceptional cases where there was particular uncertainty or anxiety. He emphasised that the present boundary was judge made and was not to be found in the statute itself. Since it was only the product of judicial construction it was open to this court to adopt an alternative construction to meet any complaint of incompatibility. However he emphasised that there was nothing in the European jurisprudence that required a court to exercise a supervisory control of a statutory authority. The courts as well as the local authorities were equally limbs of the state and it was perfectly lawful for the state to delegate child care and protection to one such limb unsupervised by the other providing that the limb upon which responsibility was cast discharged that responsibility with due regard to its convention obligations and without breach or denial of convention rights.

[17]Before framing the questions that arise for decision in these appeals, still less attempting answers, it is necessary to sketch in some degree of historical background. The Historical Background

[18]Although the powers of the Family Division judge in wardship were limited, particularly after the decision of the House of Lords in A v Liverpool City Council

[1982] AC 363

, one of the undoubted characteristics of that regime was the ability of the local authority to share with the judge the responsibility for decisions that were either agonisingly difficult or that would be acutely painful to the parents. Having practised through that era both as an advocate and as a judge of the Division I am in no doubt that there were many authorities which in many cases found the availability of the judge as the decision maker supportive not only at the point of trial but also in the subsequent implementation of the judgment reached at trial. The radical departure introduced by the Children Act 1989, whilst based on very sound policy considerations, required a major adjustment to be made not only by judges but also local authorities, guardians ad litem and forensic experts. As these groups grew used to working with the new tool there is no doubt that the general reception was one of profound appreciation. However the most general concentration of misgiving, certainly in the minds of judges, guardians and forensic experts, was the absence of any overriding mechanism for intervention in those cases where the care plan approved at trial was frustrated by unforeseen change of circumstance, lack of resources, neglect or by any other factor. There were equal concerns of unaccustomed frustration at the earlier stage of trial where the application for a care order was proved to the hilt but where the judge conceived that the care plan advanced by the local authority was not best calculated to promote the welfare of the child. It may be that the care plan opted for long term fostering when the judge (and perhaps the guardian ad litem) were convinced that adoption had more to offer: or vice versa. An even more acute instance would be the admittedly rare case where the local authority proposed under the auspices of a care order to return a child to parents who the judge concluded to be inherently dangerous. If the views of the judge and the local authority conflicted the judge could order rehabilitation (by refusing the care order) but he could not prevent it. Certainly in 1996 the President's Interdisciplinary Committee, a committee upon which all the disciplines profoundly involved with the work of the family justice system are represented together with the relevant government departments, chose this difficult area as the focus for its biennial residential conference to be held in September 1997. Other voices were expressing the possible need for adjustment. Lord Irvine during the course of a debate on the 11 December 1996 said:

"Next, the Children Act. One problem I identify is its failure to trust the judges sufficiently .... I understand that the court should not be an appeal tribunal on day to day decisions in relation to the care of the child, but the absolute refusal to permit the judge any say at all in the child's future may well be wrong. An incoming government will wish to give serious consideration to, and consult on, restoring to our judges the ability to tailor court orders to meet the justice of the particular case."

[19]Lord Mackay of Clashfern in his lecture on 4 March 1999 to the National Council for Family Proceedings said:

"Before I leave the Children Act, I should mention an aspect which, in the light of eight years experience, it may be right to re-visit. The Act was predicated on the view that where a care order is made the responsibility for the child's care is with the local authority rather than the court. I was of the opinion that it was wise to delineate clearly the boundary of responsibility in this aspect. However, I can see that experience may suggest that critically important aspects of the care plan may be worthy of supervision by the court and that, for example, if key dates in the plan are not attained, the local authority should be obliged to contact the guardian ad litem. If the crisis is not resolved, perhaps the guardian ad litem should be able to bring the matter to the court for consideration."

[20]In May 1997 the President's conference for the Family Division liaison judges and the designated judges of the Children Act care centres expressed grave concern. Officials of the Lord Chancellor's Department and the Department of Health were of course at the conference and agreed to embark upon a collaborative review of the desirability of reintroducing a limited role for the guardian ad litem as well as for the court in cases where the local authority had embarked on the implementation of a final care order. The option that they developed was presented to the September conference of the President's Interdisciplinary Committee by Mr Arran Poyser of the Department of Health. It provided a useful foundation for the ensuing debate. There is no doubt that those present at the conference were generally agreed that the operation of the statute would be strengthened by creating some limited function for the guardian after the making of a final care order. Of course the need would only arise in exceptional cases. But it was thought that the identification of the exceptional case could be achieved by a number of developments. First the development and adoption of the foundation care plan should be achieved more collaboratively with opportunity afforded to the guardian ad litem and to the forensic experts to contribute to its evolution during the interlocutory stages. Then in its final form its principal milestones would be starred on the basis that the subsequent failure of the local authority to achieve a star milestone would trigger the re-entry of the guardian ad litem with a right of application, again only in exceptional circumstances, to the court that made the care order. It was speculatively estimated that, if this additional safeguard were introduced, it would be invoked in approximately 200 cases a year throughout the jurisdiction. The debate and the tentative conclusions reached at the conference were subsequently disseminated widely by the publication of Divided Duties (1998 Jordan Publishing Limited). Mr Garnham has stated on instructions that the introduction of such a revision to the operation of the statute was never discussed or adopted by ministers. That I cannot gainsay but there can be no doubt that senior officials in both departments were open to the case for reform as is demonstrated by the work which they did in designing a possible mechanism.

[21]Of course one less adventurous solution to what many of those with greatest experience of the operation of the statute believed to be an imperfection was to improve the quality of the care plan itself. Care plans that were profoundly researched and carefully reflected in advance of adoption were arguably less likely to collapse in implementation. This less controversial approach found expression in the Department of Health circular LAC (99) 29 dated 12 August 1999 requiring, amongst other things, that future care plans should be endorsed by one or more relevant senior officers within the local authority. However the need to go further on the advent of the Human Rights Act was widely speculated. Thus it is not surprising that the challenge reaches this court within the first six months of the life of the statute. The Division of Powers

[22]Before turning to the law I pose the question does the balance between the role of the judge and the role of the local authority struck by the 1989 Act, operate so as to deny justice to the participants? It is useful to consider the question at each of three stages in the process: first preparation for trial work and the trial itself, second the judgment upon the evidence and submissions and third the period after the judgment making the care order. The first of these stages presents no difficulty. Although no doubt there is always room for improvement, judges and magistrates have developed much expertise in case management and do their best to ensure that preparation proceeds efficiently and without unnecessary delay. Legal representation for parents and other family members joined is generally effective and could be more so were there a wider recognition that this is specialist work. The children within the proceedings have received a service of high excellence. Local authorities ensure that their cases are properly prepared and presented. The importance of the work of preparing the care plan is well recognised and the circular LAC (99) 29 has rightly required a higher degree of responsibility for its adoption. Designated judges in some care centres are ensuring that there is a sufficient opportunity for other professionals to contribute to its evolution.

[23]Difficulties first arise, in my opinion, at the stage of judgment. The judge's statutory obligation under section 1(1) of the 1989 Act is to make the child's welfare his paramount concern. But how does he discharge this duty in the instances that I have cited above where his evaluation of what is best for the child conflicts with the outcome to which his order will almost certainly lead? All parties to the proceedings in which he gives judgment are equally entitled to a disposal which, at least in the estimation of the experienced specialist judge, is most likely to promote the welfare of the child. How is that entitlement delivered when the judge declares that he is obliged to make an order against his better judgment?

[24]Equally difficulties arise at the final stage. I accept that the statutory rights of the adult respondents, emphasised by Miss Pauffley, Mr Arnot and Mr Garnham, provide sufficient remedy in those cases where, for whatever reason, there is a fundamental failure to implement the care plan. But I am not satisfied that the child is sufficiently protected in that eventuality. For any one of many reasons the parents may not be available to exercise their rights or they may be unable or unwilling to do so. The guardian must drop out on the making of the care order. Children's officers or advocacy services for children have neither the locus nor the funds to apply to the court. Of course older children can, with the aid of such services, be referred to a solicitor who can then return the case to court. But the children who are most vulnerable to breakdown and delay are the very young whose healthy future development may depend upon forming a sound psychological attachment in time. Although the good faith, commitment and expertise of social service departments is not in question I am in no doubt that cases do arise where the welfare of the vulnerable child would be protected or advanced had the responsibilities of the guardian continued and, in some instances, had the guardian's options included a return to court. The ECHR and the Human Rights Act 1998

[25]I have had the advantage of reading in draft the judgment of Hale LJ and am in broad agreement with her analysis of the ECHR and the Human Rights Act 1998 upon these problems. We have also reached similar conclusions as to the changes required to previous law and practice under the Children Act 1989.

[26]First there is no fundamental incompatibility between the Children Act 1989 and the Human Rights Act 1998. The application for a declaration of incompatibility has not been pressed, even by Mr Levy who had initiated the application in his notice of appeal. Mr Peddie had followed suit but largely I suspect as a matter of form. In oral submission neither suggested that that application was an essential ingredient of their respective cases.

[27]The court is under a duty to construe earlier statutory provisions in a manner compatible with the Convention. As Mr Garnham submitted such difficulties as these appeals illustrate are created not by the provisions of the Act but by what is perceived to be its underlying philosophy, policy and objectives. The judges discerning those features have then construed and applied the statute in a way that now exposes it to the Human Rights Act challenge. In some instances, for example those postulated in paragraphs 23 and 24 above, there may be a breach of the right to respect for family life by interference or by a failure to take necessary steps, either to protect the child or to advance the child's life in limbo from its family of birth to an alternative family. Equally in certain circumstances there may be a breach of the right of access to the courts where the young child is deprived of the guardian ad litem whose primary function is to ensure the child's representation.

[28]Such breaches or risks of breach may in my judgment be avoided or safeguarded by two major adjustments and innovations in the construction and application of the Children Act 1989.

[29]First the judge at trial should have a wider discretion to make an interim care order where the care plan seems inchoate or where the passage of a relatively brief period seems bound to see the fulfilment of some event or process vital to planning and deciding the future. The authority of Re L (Sexual Abuse: Standard of Proof)

[1996] 1 FLR 116

and Re CH

[1998] 1 FLR 402

, endorsing the judgment of Wall J in Re J (Minors: Care Plan)

[1994] 1 FLR 253

, must be revisited. In an appropriate case, and I lay great emphasis on that phrase, a judge must be free to defer making a care order until he is satisfied that the way ahead is no longer obscured by an uncertainty that is neither inevitable nor chronic.

[30]Second the greater concentration on the quality of the care plan should extend to a collaborative assessment of its essential milestones which must then be elevated to starred status. If the parties cannot agree this detail the judge can decide. Thereafter a failure to achieve a starred milestone within a reasonable time of the date set at trial must reactivate the interdisciplinary process that contributed to the creation of the care plan. At a minimum the local authority must inform the guardian ad litem of the failure. Either the guardian or the local authority should then have the right to apply to the trial court for further directions. If for any reason the original guardian is not available then the local authority must apply to the court for directions.

[31]I appreciate that this second safeguard is more radical than the first and seems to breach the fundamental boundary between the functions and responsibilities of the court and the local authority. But in advancing it I would stress these considerations: i) First it has been the subject of detailed interdisciplinary debate at the President's Interdisciplinary Conference in 1997 and some degree of more general consultation in the subsequent publication of Divided Duties . ii) The number of judges with jurisdiction to make care orders throughout the jurisdiction is restricted to less than 200. Of course the professional judiciary decide the most difficult cases but the Family Proceedings Court take many cases not complex for the purposes of trial but requiring great care in the oversight of the care plan. In my opinion an application for directions following the failure to achieve a starred milestone should be made not to the Family Proceedings Court that made the care order but to a judge of the care centre to which its cases are transferred. Clearly there must be a considerable responsibility on the courts to ensure that any extension of function is used sparingly and collaboratively and not for the revival and perpetuation of adversarial issues. iii) The number of cases in which the duty to report and the power to review will arise should prove to be comparatively rare, certainly in relation to the number of applications for care orders that are issued. Obviously there would be a need to monitor the advent of this development to test the reliability of the speculation that only 200 applications a year would result.

[32]The responsibility on the courts in the exercise of extended or additional powers is of course to ensure that they are used only to avoid or prevent the breach of an Article 6 or Article 8 right of one of the parties. If no actual or prospective breach of right is demonstrated the power does not arise. Those who take the decision to initiate an application must keep this consideration to the fore as must courts in reviewing any application. Even if the application is well founded the court must always be mindful of its limitations and at the same time respectful of the responsibility and function of the local authority. It is essential that the court should be acquainted with the services and resources of the local authority or authorities whose applications it regularly lists. The court should equally be aware of any budgetary constraints or staff shortages by which the authorities are currently affected. Courts must refrain from opinionated criticism as well as endeavours to achieve the unachievable. Any continuing interaction between the court and the local authority must be as far as appropriate collaborative and with no other objects than to promote the welfare of the child and to ensure for the child and the other parties to the proceedings their Convention rights.

[33]The Lord Chancellor has approved in principle the creation of an interdisciplinary structure for the family justice system akin to the Criminal Justice Consultative Council. A public consultation document on the shape of the structure is about to be published. Once it is in place it should make a significant contribution to the development of good practice in this new territory.

[34]In addition to these revisionary applications of the Children Act itself there are the remedies within the Human Rights Act 1998 stressed by Mr Tolson in his written and oral submissions. Once an application for a care order is issued the proceedings thus constituted can be said to be in continuing existence for the purposes of section 7(1)(b) of the Human Rights Act 1998 despite the fact that there has been a seeming disposal by the making of a care order supplemented by an order under section 34. If that premise is technically flawed, proceedings can always be initiated under section 7(1)(a). In either instance the claim advanced will be 'that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1)'. As a matter of practice it seems highly desirable for such an application to be made where practicable to the judge that decided the issues under the Children Act 1989. Of course if the Children Act proceedings were in the Family Proceedings Court then the Human Rights Act application should be brought either in the county court to which it transfers its cases or in the Family Division if the gravity or complexity of the circumstances warrant. The statutory right conferred by section 7 and the matching power conferred by section 8 (to grant such relief or remedy, or make such order, within its powers as it considers just and appropriate) seems sufficiently widely framed to cover any of the illustrations given in paragraphs 23 and 24 above. But the court's power is dependant on 'a person' bringing proceedings or relying on the Convention right in any existing proceedings: see section 7(1)(a) and (b). In many instances there will be no person there for the child. The parents may have disappeared or may be too disabled or disinterested. The guardian will have been discharged if the care order has been made. Thus the section 7 remedy on its own requires supplementing by the introduction of the duty to report and the power to review. Conversely where the parents remain deeply involved and deeply aggrieved there is an obvious risk that the right conferred by section 7 may be abused with the consequence that local authority resources are directed to meeting complex claims for damages involving a critical review of decisions taken in good faith over what may be years of shared parental responsibility. Clearly there will be both law and practice to be evolved in the light of experience. What is here proposed has been read by the President and has her concurrence. Outcome in the Appeal - W & B

[35]In my opinion the outcome of this appeal is finely balanced. The local authority's failures are extreme and occurred almost immediately after judgment. On the other hand this was a care plan that was evolved collaboratively during the trial. Thereafter the issue for the judge's decision was created by the mother's anxiety that she would not receive the support and assistance crucial to her prospects of success. Perhaps in such circumstances in future the trial judge might adopt the mechanism of an interim care order or a full care order secured by starred items on the care plan. But it must equally remain open to a judge to repose and express his confidence in a local authority's intent and capability by making a full care order uncomplicated by any obligation to report future failure. The order made by Her Honour Judge Sander was clearly right on the authorities developed before the arrival of the Human Rights Act and I would not disturb it. The children may have remedies under the Human Rights Act 1998 identified by Mr Tolson. Outcome in the Appeal - W

[36]Here it is clear that the care plan was insufficiently mature and that Judge Hamilton wanted more time to await developments. It was only the authorities that constrained him to make the full care order. The only possible criticism of the judge is his failure himself to apply the Human Rights Act 1998. It may be that he was mindful of the fact that the power to make a declaration of incompatibility only lies at a higher level in the system. I would therefore set aside the care order and replace it with the interim care order that the judge clearly would have made had he felt free to do so.

[37]Accordingly I would dismiss the appeals in W & B and allow the appeal in W , replacing the care order with an interim care order and remitting the case to Judge Hamilton for his further determination in the light of developments in the interim. LORD JUSTICE SEDLEY:

[38]I am in agreement both with the disposals proposed by Thorpe and Hale LJJ and with their reasons. I add my own reasons for agreeing with what is perhaps the most radical of their conclusions, namely that in the light of the Human Rights Act 1998 a duty rests upon the local authority to return to the court if a significant element in the care plan has failed or is threatening to fail. I do so, notwithstanding their unrivalled expertise in this field, partly because the impact of the European Convention on Human Rights is new and perhaps merits a third point of view, but partly also because of what I encountered some years ago as chairman of the panel which inquired into the death of a child in care (see Whose Child? , London Borough of Lambeth, 1987).

[39]Tyra Henry was killed by her father at a time when she was in the care of the local authority because there was strong evidence that he had already maimed her older brother. But although the care order had been made on the basis of a care plan involving Tyra's grandmother as her principal carer, the plan had been allowed to fall apart. Tyra drifted back first to her mother and then into the reach of her father. The first of our recommendations was:

"a change in the law so that the means by which an authority seeking a care order proposes to implement it is placed before the court in summary form and, if approved, is annexed to the care order so as to form part of it. If then any significant change is proposed it will require the authority of the court, given at a further hearing."

[40]While the two cases before this court are of a quite different order of gravity, the law's procedures have to be apt both for them and for the catastrophic case of which Tyra Henry's is not the only example in modern times. The need of vulnerable children for society's protection varies in degree but not in kind.

[41]The duty to afford this protection, which the United Kingdom has always recognised, is now underpinned by the positive obligation immanent in

article 8 of the European Convention on Human Rights

. In principle it is for each state to decide which of its limbs is to furnish the necessary protection. But this is by no means the same thing as Mr Garnham's submission, on behalf of the Secretary of State for Health, that the Convention is indifferent as to which limb of the state discharges the article 8 duty; so that, for example, a system of periodic in-house review with an outside chairman, with a fallback on s.7 if things go wrong, is an adequate discharge of the state's duty. It is precisely because the Convention is not indifferent about this that the state is in my view under certain constraints.

[42]The European Court of Human Rights in McMichael v UK

(1995) 20 EHRR 205

, para.91, has described the distinct but linked roles of articles 6 and 8 in care proceedings:

"[T]he court would point to the difference in the nature of the interests protected by Articles 6(1) and 8. Thus, article 6(1) affords a procedural safeguard, namely the 'right to a court' in the determination of one's 'civil rights and obligations; whereas not only does the procedural requirement inherent in article 8 cover administrative procedures as well as judicial proceedings, but it is ancillary to the wider purpose of ensuring proper respect for, inter alia, family life. The difference between the purpose pursued by the respective safeguards afforded by articles 6(1) and 8 may, in the light of the particular circumstances, justify the examination of the same set of facts under both articles."

[43]If, then, article 6(1) guarantees the right to a court in care cases, article 8(2), for its part, postulates an irreducible minimum of legal control by such a court. It does so in two ways: first by the requirement of legality as a precondition of intervention in the child's private or family life; and secondly by the need, spelt out by the Court's jurisprudence, for any such interference to be proportionate in the specific sense described by Hale LJ.

[44]Taking legality first, it is almost certain that a statute which gave the local authority power to make legally binding care orders would fall foul of this requirement because - to borrow the words of Lord Shaw of Dunfermline in Scott v Scott

[1913] AC 417

, 477 - to remit the maintenance of right to the region of discretion would be to shift the foundations of freedom from the rock to the sand - a proposition as true of a shift (as in Scott ) from legal right to judicial discretion as it is of a shift from forensic judgment to administrative discretion. The Children Act would in my judgment be incompatible with the Convention if it did not require care orders to be made by courts of law.

[45]Turning to proportionality, the continuing presence of a legitimate aim cannot be taken for granted simply because a final care order has been duly made. As Mr Tolson, for the Torbay guardian ad litem, pointed out, a care order of which no good at all is coming cannot sensibly be said to be pursuing any legitimate aim. It must follow, as Mr Levy submitted it does, that a care order which keeps a child away from its family for purposes which, as time goes by, are not being realised will sooner or later become a disproportionate interference with the child's primary article 8 rights. And if one turns to the worst kind of case, a care order which is turned on its head by letting the child drift back into the dangerous family from which he or she has been rightly removed is an order which has become drained both of legality (having regard to articles 2 and 3 as well as 8(1)) and of proportionality.

[46]If then the making of care orders is a judicial function of the state while their implementation is an executive function, what articulates the two? The answer has to be the care plan. Without an acceptable care plan the judicial role in making a final care order cannot be discharged. Equally, without an accepted care plan the local authority cannot know what is expected of it by the court. The reason why implementation is the task of the local authority is that, even if the care plan runs well, specialised day-to-day decisions have to be taken to keep it on course. But what if it runs so badly that its principal purposes are not being fulfilled? As Thorpe LJ has pointed out, such things can and generally do happen without anybody's fault; though they have also been known to happen when a change of personnel or of policy or - in the worst cases - a major administrative breakdown has overtaken the care plan. In such cases, as it seems to me, the court's order is being frustrated; and it is not consistent with the rule of law that the child whom the court's order was designed to protect should be left adrift in a situation which departs materially from the purposes for which the order was made. Neither legality nor proportionality is being respected in such a situation.

[47]I do not accept the submission of Miss Pauffley, for Torbay council, that the court in the present state of practice is the "scrutineer" of the local authority 's decisions. In so far as the decision is to remove the child, the court is the author of it; and once a final care order has been made, the court loses sight of it. It is only at the point of making or declining to make a final care order that the court has before it, and can critically appraise, the care plan which spells out what the local authority has decided can best be done for the child. But - and this is the key problem for us - the power of scrutiny evaporates once the final care order is made, unless and until a party with the necessary locus and relevant information chooses to restore the case.

[48]These, in essence, are the reasons why I welcome and respectfully endorse the opinion of the other two members of the court that nothing in the Children Act 1989 prevents our giving effect to the European Convention on Human Rights, as required by the Human Rights Act 1998, in the way proposed by Thorpe LJ in paragraph 29 of his judgment and by Hale LJ in paragraphs 79 and 80 of hers. Like them, I would dismiss the appeals in the Torbay case but allow the appeal in the Bedfordshire case to the extent of substituting an interim care order for the full care order which was made.

LORD JUSTICE HALE:

[49]The question raised in these appeals is whether the implementation of the Human Rights Act 1998 requires any adjustment to the division of responsibilities between courts and local social services authorities in care cases under the Children Act 1989. Before embarking on that question, there are two important caveats to mention.

[50]First, the Human Rights Act 1998 was carefully designed to promote the search for compatibility, rather than incompatibility, between primary legislation and the Convention rights. None of the parties wishes us to declare any part of the Children Act 1989 incompatible with the Convention. The appellants regard that as a last resort. Indeed, they found it quite difficult to identify particular provisions of the 1989 Act which might be declared incompatible: the problem is more with what the Act does not say than with what it does. All parties wish us, if possible, to interpret or apply the Act in such a way that it is compatible with the Convention. They differ only in the extent to which that might involve departure from existing case law or the development of new procedures.

[51]Secondly, we are well aware of the body of opinion among judges, guardians ad litem and other professionals which was reflected in the discussions at the President's Inter-disciplinary Conference on Family Law in 1997 and in the resulting publication, Divided Duties (1998, Family Law). There is concern that the 1989 Act removed the power of the High Court and the divorce court, when committing a child to care in wardship or matrimonial proceedings, to give directions to the local authority as to the exercise of their powers relating to the child's accommodation and welfare: see Family Law Reform Act 1969, s 7(2) and (3), Matrimonial Causes Act 1973, s 43. In practice, that power was exercised in three main ways: to require the local authority to arrange contact between the child and his family: see Re Y (A Minor)(Child in Care: Access)

[1976] Fam 125

; to keep the progress of the case under periodic review; and to permit (rather than to require) the local authority to place the child 'with long term foster parents with a view to adoption'. The court would not normally direct the local authority to find a particular placement for the child or provide other kinds of services for him or his family. Despite the concerns raised in Divided Duties , this is a complex issue upon which there are also divided opinions. We must beware the temptation to use the Human Rights Act 1998 and this litigation to find solutions to problems which raise serious policy issues which are the province of Parliament. Our role is only to ask ourselves what might be necessary to secure compliance with the Convention rights, and in particular the 'right to respect for family life' protected under Article 8.

[52]Respect for family life is fundamental to the philosophy underpinning the European Convention on Human Rights. It is also fundamental to the philosophy underpinning the Children Act 1989. The Review of Child Care Law (1985, HMSO) put it this way, at para 2.13:

' . . . "the child is not the child of the state" and it is important in a free society to maintain the rich diversity of lifestyles which is secured by permitting families a large measure of autonomy in the way in which they bring up their children. This is so even, or perhaps, particularly, in those families who through force of circumstances are in need of help from social services or other agencies. Only where their children are put at unacceptable risk should it be possible compulsorily to intervene. Once such a risk of harm to the child has been shown, however, his interests must clearly predominate.'

A care order is a serious interference with the right to respect for family life, not only of the parents, but also and more importantly of the child. It becomes more serious still if only minimal contact is permitted between them or if the local authority are given permission under section 34(4) of the 1989 Act to refuse it altogether. The most serious interference is an adoption order, which finally and irrevocably brings to an end, not only the parents' parental responsibility for the child but also the legal relationship between the child and the whole of his family of birth. On the other hand, not to interfere where interference is called for may also violate the child's Convention rights: see Z v United Kingdom , European Court of Human Rights, 10 May 2001.

[53]These interferences are committed by two separate and independent public authorities: the court which makes an emergency protection order, interim care order, care order, permits denial of contact, or makes an adoption order and the local authority which decides how to implement them. Indeed, a far wider range of actions by local authorities may amount to interference. The most obvious examples are failing to arrange the contact which the court has ordered or which has been contemplated in the care plan, placing the child a long way from home without making proper contact arrangements, or changing a long standing placement in which the child has developed family ties with the foster carers.

[54]Such an interference can only be justified under Article 8.2 if three conditions are fulfilled: i) It must be 'in accordance with the law'. This means more than that it must have a basis in domestic law; the domestic law must also be adequately accessible and formulated so that it is reasonably foreseeable; and there must be adequate and effective safeguards in that law to protect against arbitrary interference: see Sunday Times v UK

(1979) 2 EHRR 245

; Silver v UK

(1983) 5 EHRR 347

; Malone v UK

(1984) 7 EHRR 14

; and Halford v UK

(1997) 24 EHRR 523

. Subject to that, however, the need for flexibility and discretion are also recognised, particularly in child care cases: see Olssen v Sweden (No 1)

(1988) 11 EHRR 259

, para 61; Eriksson v Sweden

(1989) 12 EHRR 183

, paras 59, 60; Andersson v Sweden

(1992) 14 EHRR 615

. ii) It must be in pursuit of one of the legitimate aims provided for in the Article: compulsory measures of care can be justified for the protection of health or morals or for the protection of the rights of the child. The rights of a child are not confined to his Convention rights and in this context include his interests: see Hendricks v Netherlands

(1983) 5 EHRR 223

; Andersson v Sweden

(1992) 14 EHRR 615

; Johansen v Norway

(1996) 23 EHRR 33

. iii) It must be 'necessary in a democratic society': that is to say, the reasons given for the interference must be 'relevant and sufficient'. It must correspond to a 'pressing social need' and be 'proportionate' to the legitimate aim pursued: see Olsson v Sweden (No 1)

(1988) 11 EHRR 259

. Thus, at least where there is no question of adoption, the care decision should be 'regarded as a temporary measure, to be discontinued as soon as circumstances permitted, and any measures of implementation should have been consistent with the ultimate aim of reuniting the . . . family' (para 81). The more serious the intervention, the more compelling must be the justification: see Johanssen v Norway

(1996) 23 EHRR 33

. The most important question in most care cases is therefore whether the proposed interference with the right to respect for family life is proportionate to the need which makes it legitimate.

[55]In my view, there is another way in which a public authority may act incompatibly with the Convention rights in a care case. This is by failing to take adequate steps to secure for a child who has been deprived of a life with his family of birth a life with a new family who can become his new 'family for life' to make up for what he has lost. This notion is not, so far as I am aware, spelled out in any of the ECHR jurisprudence to date. Certainly it is not spelled out in any of the cases to which we have been referred. But it can be readily inferred from the concept of positive obligations inherent in Article 8.

[56]These go back to the seminal case of Marckz v Belgium

(1979) 2 EHRR 330

' . . . the object of the Article is "essentially" that of protecting the individual against arbitrary action by the public authorities. Nevertheless, it does not merely compel the State to abstain from such interference: in addition to this primary negative undertaking, there may be positive obligations inherent in an effective "respect" for family life.'

[57]This concept was applied, for example, in X and Y v Netherlands

(1985) 8 EHRR 235

, where the state was obliged to provide more effective means of protection against sexual abuse of the mentally disabled. In the recent case of Z v United Kingdom , 10 May 2001 (one of the cases following up from X v Bedfordshire County Council

[1995] 2 AC 633

), the Government conceded that the failure to protect children who had been subjected to prolonged and serious ill-treatment and neglect at home from inhuman and degrading treatment was a breach of the positive obligation under

Article 3 of the Convention

: there was therefore no need to consider whether there had also been a breach of the positive obligation in Article 8. Furthermore, while the failure of the law of tort to offer a remedy in damages was not a breach of the right to a fair hearing under Article 6, the failure to offer any effective remedy for the breach of Convention rights was a breach of Article 13. (As will later be seen, section 7 of the Human Rights Act 1998 is designed to provide such a remedy.)

[58]These cases are concerned with the failure of the state's institutions, the machinery of civil and criminal law, to provide proper protection for the physical and moral integrity of all its citizens. The threshold for invoking that duty has to be a high one. Further, the state's duty is to take 'reasonable and appropriate measures' to secure that protection. A fair balance has to be struck between the competing interests of the individual and of the community as a whole: this is so whether the claim is analysed as a breach of the positive or the negative obligations in Article 8 and the legitimate aims in Article 8.2 remain relevant: cf Lopez-Ostra v Spain

(1994) 20 EHRR 277

, para 21; Cossey v UK

(1990) 13 EHRR 622

. I note that Sedley LJ took a similar view of the scope of the positive obligation under Article 8 in Re F (Adult: Court's Jurisdiction)

[2000] 1 Fam 38

, at p 57:

'The family life for which Article 8 requires respect is not a proprietary right vested in either parent or child: it is as much an interest of society as of individual family members, and its principal purpose, at least where there are children, must be the safety and welfare of the child. It needs to be remembered that the tabulated right is not to family life as such but to respect for it. The purpose, in my view, is to assure within proper limits the entitlement of individuals to the benefit of what is benign and positive in family life. It is not to allow other individuals, however closely related or well-intentioned, to create or perpetuate situations which jeopardise their welfare.'

[59]Here we are discussing a person who has already been deprived of a large part if not all of that family life which is entitled to respect. He is particularly vulnerable, partly because of the reasons which brought him into care, and partly because of the risks inherent in the care experience. Where the state has had to deprive someone of their family life, it seems to me that there is a corresponding positive obligation to take reasonable and appropriate steps to fill the gap. There is an analogy here with the American development of a philosophy of entitlement to proper psychiatric treatment for those who have been compulsorily incarcerated because they are in need of such treatment: see L.O. Gostin, 'The Ideology of Entitlement: the Application of Contemporary Legal Approaches to Psychiatry' in P. Bean (Ed), Mental Illness: Changes and Trends (1986).

[60]This cannot mean that all failures in implementing the care plan are a breach of this positive obligation towards the child. Only the fundamental failure to make good that which has been taken away could possibly qualify. Even that is limited by what is reasonable and appropriate. Local social services authorities have many demands upon their resources. (Small unitary authorities like Torbay may find it harder to cope with the comparatively rare difficult care case than will a larger county authority such as Bedfordshire.) They may not be able to do what they would like to do for every child in their care. This is one powerful reason why courts must hesitate to make care orders unless satisfied that this is indeed the best option for the child. Even in a well-resourced authority with a wide range of good facilities, courts should beware a rosy tinted view of what can be achieved. Finding appropriate placements for children is getting more and more difficult. Foster placements are in short supply and there are fewer, and fewer types of, residential placements. At the same time, the needs of the children being placed are becoming greater. The more children are able to stay at home, with appropriate help and support, the more needy will be those who cannot do so. Finding foster placements, let alone adoptive families, for them is correspondingly difficult.

[61]What then is the role of the courts in cases where there is or may be a breach of these Convention rights? The Review of Child Care Law , in para 2.20, adopted a clear demarcation between the role of courts and the role of local authorities in care cases:

'One of our guiding principles has been that the court should be able to determine major issues such as the transfer of parental rights and duties where there is or may be a dispute between parents and local authorities, while the management of the case should be the responsibility of the local authority.'

This followed the view of the House of Commons Social Services Committee, in its Report on Children in Care (Session 83-84, HC 360), at para 67, that ' . . . the courts should make long term decisions impinging directly on the rights and duties of children or their parents, and that the local authority or other welfare agency should make decisions on matters which, although they may be of equal or greater importance, are not susceptible to clear and unambiguous resolution.'

[62]Thus courts decide who shall have or share parental responsibility and what contact must be allowed between the child and members of her family. The Children Act 1989 gave them much wider powers than they had before: all transfers of parental responsibility now require a court order, on the same grounds and with the same procedure and legal effect; all courts have power to decide what contact with the family and others will be in the child's best interests; others such as grandparents may participate in the proceedings if they wish to offer the child a home. Courts do not decide exactly where a child should be placed, or what additional services should be offered to the child, still less what services should be offered to the family.

[63]The Review of Child Care Law , at paras 2.23 to 2.24, also rejected the idea of regular review by the court:

'The expertise of a court lies in its ability to hear all sides of the case, to determine issues of fact and to make a firm decision on a particular issue at a particular time, in accordance with the applicable law. It cannot initiate action to provide for the child, nor can it deliver the services which may best serve the child's needs. . . . It is not only important that the reviewing body should itself have the power to deliver the care which it considers best for the child: it is also necessary that the body with day to day responsibility for the child should have a positive duty to "take a grip on" the case and make firm and early decisions without the temptation to pass responsibility to another body. The encouragement of positive attitudes and practices, as well as subjecting them to informed scrutiny, is more important than what could only ever be a limited form of judicial review.'

[64]That is why the 1989 Act, in section 26, provides both for regular reviews by local authorities and for formal complaints machinery in which an independent person must take part. The details are contained in the Review of Children's Cases Regulations 1991, SI 1991 No 895 and the Representations Procedure (Children) Regulations 1991, SI 1991 No 894, and guidance is given by the Department of Health, in The Children Act 1989, Guidance and Regulations, Volume 3, Family Placements (1991), chapters 8 and 10. Among the matters which must be considered at any review are whether or not to apply for the discharge of a care order (reg 5, sched 2, para 1) and whether plans need to be made to find a permanent substitute family for the child (para 9). The authority also has to explain to the child any steps which he may take under the Act, including his own right to apply for orders such as the discharge of the care order and to invoke the complaints procedure (reg 4(4), sched 1, para 5). The authority then has a duty to arrange for the review's decisions to be implemented (reg 8).

[65]That is also why the Children Act 1989 did not replace the previous powers to give directions in wardship and matrimonial (but not other) proceedings when committing children to care. Hence this court concluded in Re T (A Minor)(Care

[66]It may be helpful to consider the different ways in which the problem may arise. The easiest of these is where the court making the care order is of the view that the care plan involves or may involve a disproportionate interference in family life. This is most likely to arise where the child is still living at home or is likely to return there in the near future. It is unlawful for the court, as a public authority, to act in a way which is incompatible with a Convention right: 1998 Act, s 6(1). It is therefore incumbent upon the court to find another solution. As this court has said, in the case of Re O (a child) (supervision

[67]Similarly, where it is clear that the child will have to stay away from home at least for a while, but the court considers that the aim should be to reunite the family and that the local authority plan for a permanent substitute home will involve a disproportionate interference, the court will have to consider how this can be prevented. The court can exercise some control through its powers over contact, to ensure that the child's links with his family are preserved and encouraged rather than curtailed and discouraged. Usually, therefore, the right course will be to negotiate a change in the care plan before the care order is made. Only in the rare case where the court and the local authority remain at odds over the overall objective of the plan should it be necessary for the court to decline to make the care order and to retain control of the case by means of a series of interim care orders. This is an inconvenient and artificial solution. Where it is clear that the local authority does need to share parental responsibility with the parents and to look after the child for the time being, a care order reflects the reality of the situation and allows everyone to get on with helping the child and his family much better than does the continuation of the proceedings. A solution which allows the court to make a care order earlier than it might otherwise do, because it has some means of bringing the case back to court should things go wrong, might achieve the best of both worlds.

[68]Thus in the Bedfordshire case, where the judge was not only dissatisfied with the care plan but lacking in some important information about it, he should have declined to make a final order. Although there was a real need for the children to be in care, there was also a real risk of a disproportionate response to those needs. However, in my view, there can be no possible criticism, whether under the Human Rights Act 1998 or otherwise, of the care order made by HHJ Sander in the Torbay case. A comprehensive and appropriate care plan had been hammered out at court with some care. It was clearly necessary for the local authority to have parental responsibility for, and to provide accommodation for, the children while the mother's ability safely to resume their care at some time in the future was assessed and contingency plans for their future made if she could not do so.

[69]The problem in that case is that the excellent care plan has not been implemented. A similar problem arises when a care plan which appeared right at the time no longer appears right in the light of later developments. The local authority obviously have to have power to adapt their arrangements to cater for change, whether in the child's or any other circumstances. Children grow and their needs change. Minor alterations in the accommodation or services provided are one thing. But what is to happen if there is a fundamental change: for example, from a plan aiming to preserve family links and reunite the children with their parents as soon as this may safely be done, to a plan aiming to limit or even sever those links and find a permanent substitute home for the child? Such cases give rise to a major sense of injustice, whether or not there are good reasons for the change. It should not, of course, be forgotten that we are concerned here with families where there is a 'relevant and sufficient' reason for the children to be living away from home. There are limits to how long and how intensively the aim of reunification can be pursued without doing even more harm to the child than has already been done.

[70]This situation arose in Scott v UK

[2000] 1 FLR 958

. The mother was an alcoholic who was unable to look after her baby from the age of four and a half months. But she made some efforts to recover and the local authority continued to pursue a plan to reunite them should she succeed. A care order was made on that basis. Soon afterwards the local authority abandoned their attempts and pursued an adoption plan. A year later, the child was freed for adoption. The European Court of Human Rights declared the mother's application inadmissible. The decision was justified on the merits. The interference was justified under the Convention. The decision making process gave the mother ample opportunity to make her views known to the local authority and to resort to the court.

[71]Even if it turns out to be wholly justified on the merits, a fundamental change of plan such as this could be otherwise than 'in accordance with the law' unless there is some way of examining the merits so that an effective remedy against arbitrary and unjustified interventions can be provided. And there is always the risk that a change is not justified on the merits but the result of inefficiency or lack of resources. The question is, therefore, what opportunity is there under the present law to resort to the court where a local authority may have acted, or may propose to act, in breach of Convention rights? There are two possible routes to a solution.

[72]Section 7(1) of the Human Rights Act 1998 provides:

'A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may - a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act.'

Under section 8(1) of the 1998 Act:

'In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.'

[73]There is no definition of 'the appropriate court or tribunal' for the purpose of section 7(1)(a). The amended Practice Direction to Part 16 of the Civil Procedure Rules requires any party who seeks to rely on the Human Rights Act to state that and give certain particulars in his statement of case. A claim against a local authority under section 7(1)(a) might therefore be brought as an ordinary civil claim in the county court or High Court. In those proceedings, the court would clearly have power to grant injunctions and award damages.

[74]Alternatively, a parent or a child could invoke the existing procedures in the Children Act 1989 to get the matter back before the care court and then rely upon section 7(1)(b). A parent can always apply for a contact order or for the discharge of a care order (unless debarred under s 91(14) to (17)). Even if discharge is unlikely to be practicable, a radical change of plan is likely to involve changes in the contact arrangements. In those proceedings, however, the court can only regulate contact or discharge the care order (or make a residence order with the same effect).

[75]In practice, we need a combination of these two procedures. Where the decision as to what is, or is not, unlawful in terms of section 6(1) depends crucially upon the facts and merits of the case, it is much more appropriate for the case to be brought in a court which is used to deciding such cases and evaluating the evidence. Furthermore, whereas only certain judges can exercise the care jurisdiction, all judges sitting in the county courts or the High Court can grant injunctions and award damages. We need a court which can grant all the available remedies. The proceedings should be 'specified proceedings' under section 41 of the 1989 Act, so that the child can be represented by a guardian ad litem. Applications under section 7(1)(a) should therefore be made, in the first instance, to the court which made the original care order (unless that was a Family Proceedings Court where no remedies other than those under the 1989 Act are available). For my part, I would not require a separate claim to be made under the CPR and then consolidated with the Children Act application. I see no need to read the words 'in the proceedings' after the words 'within its powers' in section 8(1) of the 1998 Act. County courts must now be able to exercise their powers to grant injunctions to prevent a local authority acting unlawfully under the 1998 Act even in a care case.

[76]It may sometimes be necessary to transfer a county court case to the High Court. The High Court can grant not only those remedies but also the remedies available in judicial review or under the inherent jurisdiction of the High Court in relation to children. It is not possible for a child to be both the subject of a care order and a ward of court: see 1989 Act, ss 91(4) and 100(2)(c). Nor can the High Court use its inherent jurisdiction in relation to children in order to require that a child be placed in care, under supervision or accommodated by a local authority or to confer upon a local authority the power to determine any aspect of parental responsibility for a child: see 1989 Act, s 100(2)(a),(b) and (d). The principle is that it should not be used as an alternative to the criteria, procedures and powers provided for under the 1989 Act. Local authorities, in particular, cannot invoke it in order to achieve a result which could be achieved by an order under the Act: see s 100(3) to (5). But that does not mean that others cannot invoke it in order to secure compliance with the Convention rights.

[77]All of this applies equally where it is the child who wishes to complain that his Convention rights have been breached. A very real difficulty is in those cases where there may be a breach of Convention rights but no-one to bring it before the court. The local authority may be in breach of their positive obligations towards the child, for example where the care plan for a young child has always been adoption, but this has not been properly and effectively pursued. The child cannot apply for himself. The parents may have accepted, however reluctantly, that a care plan for a permanent substitute home is inevitable and even for the best. There is no application which they wish to make or which if made could stand a real chance of success.

[78]Ideally, the matter should be picked up and dealt with in the review process within the local authority, as the regulations provide. The problem is that this does not always happen: see SSI report, Someone Else's Children - Inspections of Planning and Decision Making for Children Looked After and the Safety of Children Looked After . There are some cases where the court has a legitimate concern that the assumptions upon which it made the care order will not be fulfilled. Sometimes the court has been persuaded to prefer the option of a care order with a view to adoption, usually for a young child, on the basis that a home can be found quite quickly. If the placement would take time or cannot be found, the best solution for the child may not be so clear: sometimes the child would be better off retaining important links with the birth family.

[79]Where elements of the care plan are so fundamental that there is a real risk of a breach of Convention rights if they are not fulfilled, and where there is some reason to fear that they may not be fulfilled, it must be justifiable to read into the Children Act a power in the court to require a report on progress. In effect, such vital elements in the care plan would be 'starred' and the court would require a report, either to the court or to the guardian ad litem (in future to CAFCASS), who could then decide whether it was appropriate to return the case to court in the way discussed earlier. This would only be appropriate if there was good reason to believe that Convention rights had been or were at real risk of being breached.

[80]There is nothing in the Children Act 1989 to prohibit this. Simply, there is nothing there to allow it. The courts have so far been true to the division of responsibility underlying the 1989 Act and declined to introduce it. But when making a care order, the court is being asked to interfere in family life. If it perceives that the consequence of doing so will be to put at risk the Convention rights of either the parents or the child, the court should be able to impose this very limited requirement as a condition of its own interference. If the care plan is reunification, then the court should be able to ask to be informed if this does not take place within the timescale envisaged in the care plan. Usually it will not need to do this because by definition the family will still be heavily involved and should be able to act if the need arises. If the plan is 'permanency' outside the birth family, again the court should be able to ask to be informed if this has not happened within a reasonable timescale. The report should be addressed to whether there is such good reason to believe that the Convention rights of the child or any other person are, or are proposed to be, broken that it is appropriate to invoke the powers of the court to remedy it.

[81]Such a limited process, in such limited circumstances, should not place an undue strain upon resources or drive a coach and horses through the careful division of responsibility established by the 1989 Act. The object is simply to seek to secure that the care system is operated in such a way as to comply with the Convention rights.

[82]To conclude, I would dismiss the mother's appeal in the Torbay case. I would also dismiss the guardian's appeal on behalf of the children, because there has now been sufficient progress to make a referral to the High Court an unnecessary distraction from the main business of getting on with the plan. But I have made it clear that such an application could be made on behalf of the child if the situation become grave enough to warrant it. I would allow the parents' appeal in the Bedfordshire case and substitute an interim for a full care order. This was either a case for the judge to insist on more information before making the care order, or a case for him to insist on a report back if things did not turn out as expected. Given the nature of the problems, the progress made by the mother, and the increasing involvement and understanding of the father, there was a real choice to be made. This means that the case must inevitably return to the judge for further consideration.

Order

Conditions)

[1994] 2 FLR 423

, that there was no power to impose conditions in a care order (in that case that the local authority would place the child at home). The court's role is to determine whether the threshold criteria are met and what order, if any, will best serve the paramount consideration of the child's welfare. In doing this, as Wall J explained in Re J (Minors)(Care: Care Plan)

[1994] 1 FLR 253

, it will need to scrutinise the local authority's plans for the child with some care. It should not pass responsibility over to the local authority until it has all the information needed to make its decision. But it should beware the danger of 'using an interim care order as a means of resurrecting the now defunct supervisory role of the court' and be alert to the prejudicial effects of delay. The question raised by these appeals is whether the implementation of the Human Rights Act 1998 makes any difference to this approach. order: future harm) [2001] 1 FCR 289 , there are cases where the proportionate solution is a supervision order and it is then the responsibility of everyone, court, local authority and parents, to make it work. There is no reason why, in an appropriate case, the court should not use the same sanctions for failure to comply with the requirements of a supervision order as it is prepared to use, albeit as a last resort, for failure to comply with other orders under the 1989 Act. ORDER: Appeal in W & B (Children) dismissed. Appeal in W (Children) allowed. Public funded costs assessments. Permission to appeal refused. (Order does not form part of approved Judgment)

Cited in 17 later judgments

and 8 more of the most senior