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Session 2001- 02
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Judgments - In Re S (FC) In Re S and Others In Re W and Others (First Appeal )(FC) In Re W and Others (Second Appeal) (Conjoined Appeals)


Lord Nicholls of Birkenhead Lord Mackay of Clashfern Lord Browne-Wilkinson Lord Mustill Lord Hutton








ON 14 MARCH 2002

[2002] UKHL 10


My Lords,

    1. These appeals concern the impact of the Human Rights Act 1998 on Parts III and IV of the Children Act 1989. The Court of Appeal (Thorpe, Sedley and Hale LJJ) made, in the words of Thorpe LJ, two major adjustments and innovations in the construction and application of the Children Act. The principal issue before your Lordships' House concerns the soundness of this judicial initiative.

The Torbay case

    2. The appeals concern four children, two in the Torbay case and two in the Bedfordshire case. The cases are factually unrelated. In the Torbay case the mother had three children: P, who is a boy born in August 1987, M, a boy born in January 1991, and J, a girl born in January 1992. The children are now 14, 11 and 10 years old. The appeal concerns the two younger children. The father of P, the eldest child, played no part in these proceedings. The mother met the father of M and J in 1987. They started to cohabit in 1989.

    3. Serious problems emerged in May 1999 when P ran away from home and refused to return. He said that his stepfather, namely, the father of M and J, had repeatedly beaten him and that he was afraid of him. Torbay Council arranged a foster placement. The father denied the charge and the mother supported him. They united to reject and isolate P. At a case conference held in November 1999 the father behaved appallingly. He was arrested for threatening behaviour, charged and subsequently sentenced to community service. This prompted Torbay to issue an application for a care order in respect of P and supervision orders in respect of M and J.

    4. In May 2000 P told a fuller story. He described how the father had buggered him on several occasions. A child protection investigation followed. Again the father denied the allegations. Again the mother supported him. M and J were then taken into care, pursuant to an emergency protection order of 7 June 2000, and placed in foster care. In July 2000 the mother and the father separated, apparently in order to strengthen the mother's case for the return of M and J. The paediatric examinations of the children were inconclusive. But an acknowledged expert in this field reported that the father presented an unacceptable risk to the children and that the mother was incapable of protecting them. He recommended therapy for her. At this stage the separation of the mother and father became permanent. The mother was then aged 36. The father was 31 years old.

    5. Torbay, the local authority, sought care orders in respect of all three children. Its care plan for P was that he should remain in foster care. The care plan for M and J was that an attempt should be made to rehabilitate them with their mother. After hearing much evidence, Her Honour Judge Sander, sitting at Plymouth County Court, made findings of fact on 1 November 2000. The father was found to have sexually abused P and beaten the children with a slipper. The mother had failed to protect the children. Both parents had emotionally abused the children, particularly by rejecting P.

    6. Everyone agreed there should be a care order in respect of P. There was contention over what order should be made regarding the two younger children. Discussions took place regarding the care plan for them. The mother and the children's guardian elicited assurances from Torbay on the package of support and treatment available to the family which was needed to make rehabilitation viable. Counsel for the mother, Miss Duthie, sought some guarantee of performance, or a safeguard in the event of breach. She submitted that a care order should not be made on the footing that all power and responsibility would pass to Torbay. This, she submitted, would constitute a breach of the human rights of the mother and the children. Such an order was neither necessary nor proportionate to the end to be achieved. Based on previous experience, of which evidence was given, the mother was very sceptical about whether Torbay would carry out the care plan for M and J. The mother contended that interim care orders should be made. Torbay and the children's guardian sought final care orders.

    7. The judge made final care orders in respect of all three children on 1 November 2000. She expressed confidence that Torbay would implement the care plan.

    8. Unhappily, this confidence proved to be misplaced. There was, as the Court of Appeal accepted, a 'striking and fundamental' failure to implement the care plan regarding M and J. Most of the assurances given by the social workers, and accepted by the children's guardian and the judge, proved vain. The mother's principal complaints were as follows. The care plan envisaged reunification within six to nine months. But in the four and a half months which had elapsed between the making of the care orders and the hearing of the appeal nothing had happened. The planned family therapy work had not taken place. A social worker was not provided to assist the mother. The Hillside Family Centre programme was not started until early in March. The therapy proposed for the mother was not under way.

    9. The Court of Appeal observed that this 'sad history of potentially disastrous failure' fully vindicated the line taken by Miss Duthie at the trial. The Court of Appeal acquitted Torbay of bad faith. The most that could be said against the council was that at the trial it had too readily promised support for which the mother later proved to be ineligible. The principal cause of 'these serious failings' was a financial crisis within the unitary authority leading to substantial cuts in the social services budget.

    10. The mother's primary contention in the Court of Appeal was that the judge had erred in rejecting her contention that interim care orders, as distinct from final care orders, were the appropriate relief regarding M and J. Torbay and the children's guardian opposed this contention. They submitted that the mother's appeal should be dismissed. The children's guardian also sought directions for trial under section 7 of the Human Rights Act by a High Court judge to establish the nature and extent of Torbay's breaches, if any, of its duty to the children under section 6 of that Act.

The Bedfordshire case

    11. The Bedfordshire case concerns two boys: J, born in May 1989, and A, born in August 1991. They are now 12 and 10 years old. Their mother, now aged 38, is American. Their father, aged 46, is British. The parents met in the United States and married in this country. Their children were born here. They have had a volatile relationship, separating and being reconciled on a number of occasions. They have spent significant periods living apart. Throughout their lives the children have had contact with their father. Until 6 September 1999 the children lived with their mother.

    12. At times, during much of the children's lives, there has been concern about their parents' ability to meet the children's needs. This has centred on the parents' relationship and the mother's mental health. In 1999 this anxiety deepened. The mother made allegations against the father. These were not substantiated. The mother's conduct deteriorated. There was concern about the children's emotional development, and the failure of the parents to acknowledge the extent of the problem.

    13. On 2 September 1999 Bedfordshire County Council applied for care orders. Pursuant to an emergency protection order and interim care orders, periodically renewed, the children were placed with foster parents. Bedfordshire's final care plan was that the children should be placed with the maternal grandparents, with continuing direct contact with both parents. The grandparents lived in the United States. They agreed to move to England to care for the children. The children were to remain in foster care until the grandparents moved here.

    14. The children's guardian also supported placement with the maternal grandparents. The final report of the guardian concluded that the parents had not made sufficient changes for the children to be returned safely to their care for the foreseeable future.

    15. The applications for care orders came before His Honour Judge Hamilton, sitting in Luton County Court, on 20 November 2000. He heard evidence over nine days, and gave judgment on 11 December. The judge concluded that the children were unable to return safely to the joint care of their parents: 'possibly, or even probably, it may be appropriate in twelve to eighteen months, but not now'. All the parties agreed that the maternal grandparents would be suitable carers, although the evidence that they would be able to come here was 'exiguous in the extreme'. The judge described the care plan as inchoate, because of all the uncertainties involved. In addition to uncertainty about the grandparents' position, the uncertainties included the outcome of further assessment and therapy for the boys, the final outcome of marital work for the parents, and the possibility of improvements with the mother's personality trait. The judge made care orders for both children.

The outcome in the Court of Appeal

    16. The Court of Appeal heard appeals in both cases together. The parties' arguments were wide-ranging as, indeed, they were before your Lordships' House. The Secretary of State for Health was joined as a party because of claims for a declaration that sections 31, 33(3), 38 and 100 of the Children Act are incompatible with the Convention for the Protection of Human Rights and Fundamental Freedoms.

    17. Stated shortly, the two innovations fashioned by the Court of Appeal were these. First, the court enunciated guidelines intended to give trial judges a wider discretion to make an interim care order, rather than a final care order. The second innovation was more radical. It concerns the position after the court has made a care order. The Court of Appeal propounded a new procedure, by which at the trial the essential milestones of a care plan would be identified and elevated to a 'starred status'. If a starred milestone was not achieved within a reasonable time after the date set at trial, the local authority was obliged to 'reactivate the interdisciplinary process that contributed to the creation of the care plan'. At the least the local authority must inform the child's guardian of the position. Either the guardian or the local authority would then have the right to apply to the court for further directions: see the judgment of Thorpe LJ ([2000] EWCA Civ 757, at paragraphs 29 and 30).

    18. The Court of Appeal regarded the outcome of the appeal in the Torbay case as finely balanced. The court declined to disturb the judge's order. The court also dismissed the application by the children's guardian for directions for trial under section 7 of the Human Rights Act. Progress had been sufficient to make referral to the High Court an unnecessary distraction from the main business of getting on with the care plan. An application for 'starring' of the care plan was referred to the judge.

    19. On 2 July 2001 Judge Sander starred various items in the final care plan. She directed that Torbay was to provide a progress report to the children's guardian or, in the absence of the guardian, the court if a starred element was not achieved within fourteen days of the specified dates. The House was told that the starred plan is working well and that the children's interests are now being met.

    20. As to the Bedfordshire case, the Court of Appeal held it was clear that the care plan was insufficiently mature and that Judge Hamilton had wanted more time to await developments. He had been constrained by the case law to make the full care order. The judge should have insisted on more information before making the order, or on a report back if things did not turn out as expected. The court allowed the appeal in this case, replacing the care order with an interim care order and remitting the case to Judge Hamilton for his further consideration.

    21. Later developments in the Bedfordshire case should be mentioned briefly. Setting aside the care order had the unfortunate consequence of augmenting the uncertainty about the children's home for the near future. The maternal grandparents were reluctant to come to this country to care for the children unless a final care order was made. On 24 October 2001 Judge Hamilton made a final care order with the consent of the children's guardian, and without any opposition from the parents. This care order was not starred. The parents stated they will apply for the care order to be discharged if the children have not been reunited with them by October 2003.

    22. Before your Lordships' House the Secretary of State for Health and Bedfordshire council appealed against the reasoning of the Court of Appeal on its two innovations, not against the substantive orders made. In the Torbay case the mother of the children appealed against the order made by the Court of Appeal. Torbay council supported the appeal of the Secretary of State and Bedfordshire council.

Starred milestones

    23. Two preliminary points can be made at the outset. First, a cardinal principle of the Children Act is that when the court makes a care order it becomes the duty of the local authority designated by the order to receive the child into its care while the order remains in force. So long as the care order is in force the authority has parental responsibility for the child. The authority also has power to decide the extent to which a parent of the child may meet his responsibility for him: section 33. An authority might, for instance, not permit parents to change the school of a child living at home. While a care order is in force the court's powers, under its inherent jurisdiction, are expressly excluded: section 100(2)(c) and (d). Further, the court may not make a contact order, a prohibited steps order or a specific issue order: section 9(1).

    24. There are limited exceptions to this principle of non-intervention by the court in the authority's discharge of its parental responsibility for a child in its care under a care order. The court retains jurisdiction to decide disputes about contact with children in care: section 34. The court may discharge a care order, either on an application made for the purpose under section 39 or as a consequence of making a residence order (sections 9(1) and 91(1)). The High Court's judicial review jurisdiction also remains available.

    25. These exceptions do not detract significantly from the basic principle. The Act delineated the boundary of responsibility with complete clarity. Where a care order is made the responsibility for the child's care is with the authority rather than the court. The court retains no supervisory role, monitoring the authority's discharge of its responsibilities. That was the intention of Parliament.

    26. Consistently with this, in Kent County Council v C [1993] Fam 57 Ewbank J decided that the court has no power to add to a care order a direction to the authority that the child's guardian ad litem should be allowed to have a continuing involvement, with a view to his applying to the court in due course if thought appropriate. In In re T (A Minor)(Care Order: Conditions) [1994] 2 FLR 423 the Court of Appeal rightly approved this decision and held that the court has no power to impose conditions in a care order. There the condition sought by the child's guardian was that the child should reside at home.

    27. This cardinal principle of the Children Act represented a change in the law. Before the Children Act came into operation the court, in exercise of its wardship jurisdiction, retained power in limited circumstances to give directions to a local authority regarding children in its care. The limits of this jurisdiction were considered by your Lordships' House in A v Liverpool City Council [1982] AC 363 and In re W (A Minor)(Wardship: Jurisdiction) [1985] AC 791. The change brought about by the Children Act gave effect to a policy decision on the appropriate division of responsibilities between the courts and local authorities. This was one of the matters widely discussed at the time. A report made to ministers by an interdepartmental working party 'Review of Child Care Law' (September 1985) drew attention to some of the policy considerations. The particular strength of the courts lies in the resolution of disputes: its ability to hear all sides of a case, to decide issues of fact and law, and to make a firm decision on a particular issue at a particular time. But a court cannot have day to day responsibility for a child. The court cannot deliver the services which may best serve a child's needs. Unlike a local authority, a court does not have close, personal and continuing knowledge of the child. The court cannot respond with immediacy and informality to practical problems and changed circumstances as they arise. Supervision by the court would encourage 'drift' in decision making, a perennial problem in children cases. Nor does a court have the task of managing the financial and human resources available to a local authority for dealing with all children in need in its area. The authority must manage these resources in the best interests of all the children for whom it is responsible.

    28. The Children Act, embodying what I have described as a cardinal principle, represents the assessment made by Parliament of the division of responsibility which would best promote the interests of children within the overall care system. The court operates as the gateway into care, and makes the necessary care order when the threshold conditions are satisfied and the court considers a care order would be in the best interests of the child. That is the responsibility of the court. Thereafter the court has no continuing role in relation to the care order. Then it is the responsibility of the local authority to decide how the child should be cared for.

    29. My second preliminary point is this. The Children Act has now been in operation for ten years. Over the last six years there has been a steady increase in the number of children looked after by local authorities in England and Wales. At present there are 36,400 children accommodated under care orders, compared with 28,500 in 1995, an increase of 27 percent. In addition local authorities provide accommodation for nearly 20,000 children under section 20 orders (children in need of accommodation). A decade's experience in the operation of the Act, at a time of increasing demands on local authorities, has shown that there are occasions when, with the best will in the world, local authorities' discharge of their parental responsibilities has not been satisfactory. The system does not always work well. Shortages of money, of suitable trained staff and of suitable foster carers and prospective adopters for difficult children are among the reasons. There have been delays in placing children in accordance with their care plans, unsatisfactory breakdown rates and delays in finding substitute placements.

    30. But the problems are more deep-seated than shortage of resources. In November 1997 the Government published Sir William Utting's review of safeguards for children living away from home. Mr Frank Dobson, then Secretary of State for Health, summarised his reaction to the report:

    'It covers the lives of children whose home circumstances were so bad that those in authority, to use the jargon, took them into care. The report reveals that in far too many cases not enough care was taken. Elementary safeguards were not in place or not enforced. Many children were harmed rather than helped. The review reveals that these failings were not just the fault of individuals - though individuals were at fault. It reveals the failure of a whole system.'

    31. In autumn 1998 the Government published its response to the children's safeguards review (Cm 4105) and launched its 'Quality Protects' programme, aimed at improving the public care system for children. Conferences have also been held, and many research studies undertaken, both private and public, on particular aspects of the problems. Some of the problems were discussed at the bi-annual President's Interdisciplinary Conference on family law 1997, attended by judges, child psychiatrists, social workers, social services personnel and other experts. The proceedings of the conference were subsequently published in book form, 'Divided Duties' (1998). The sharpness of the divide between the court's powers before and after the making of a care order attracted criticism. The matters discussed included the need for a care plan to be open to review by the court in exceptional cases. One suggestion was that a court review could be triggered by failure to implement 'starred' key factors in the care plan within specified time-scales. The guardian ad litem would be the appropriate person to intervene.

    32. This was the source of the innovation which found expression in the judgments of the Court of Appeal in the present appeals. The House was informed by counsel that the starred milestones guidance given by the Court of Appeal was not canvassed in argument before the court. This guidance appeared for the first time in the judgments of the court.

    33. The jurisprudential route by which the Court of Appeal found itself able to bring about this development was primarily by recourse to section 3 of the Human Rights Act. Hale LJ said, at paragraphs 79-80:

    '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. … the court would require a report, either to the court or to CAFCASS .., who could then decide whether it was appropriate to return the case to court. … [W]hen 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.' (My emphasis)

Section 3 of the Human Rights Act

    34. The judgments in the Court of Appeal are a clear and forceful statement of the continuing existence of serious problems in this field. In the nature of things, courts are likely to see more of the cases which go wrong. But the view, widespread among family judges, is that all too often local authorities' discharge of their parental responsibilities falls short of an acceptable standard. A disturbing instance can be found in the recent case of F v London Borough of Lambeth (28 September 2001, unreported). Munby J said, in paragraph 38 of his judgment, that the 'blunt truth is that in this case the state has failed these parents and these boys'.

    35. It is entirely understandable that the Court of Appeal should seek some means to alleviate these problems: some means by which the courts may assist children where care orders have been made but subsequently, for whatever reason, care plans have not been implemented as envisaged and, as a result, the welfare of the children is being prejudiced. This is entirely understandable. The courts, notably through their wardship jurisdiction, have long discharged an invaluable role in safeguarding the interests of children. But the question before the House is much more confined. The question is whether the courts have power to introduce into the working of the Children Act a range of rights and liabilities not sanctioned by Parliament.

    36. On this I have to say at once, respectfully but emphatically, that I part company with the Court of Appeal. I am unable to agree that the court's introduction of a 'starring system' can be justified as a legitimate exercise in interpretation of the Children Act in accordance with section 3 of the Human Rights Act. Even if the Children Act is inconsistent with articles 6 or 8 of the Convention, which is a question I will consider later, section 3 does not in this case have the effect suggested by the Court of Appeal.

    37. Section 3(1) provides:

    'So far as it is possible to do so, primary legislation … must be read and given effect in a way which is compatible with the Convention rights.'

This is a powerful tool whose use is obligatory. It is not an optional canon of construction. Nor is its use dependent on the existence of ambiguity. Further, the section applies retrospectively. So far as it is possible to do so, primary legislation 'must be read and given effect' to in a way which is compatible with Convention rights. This is forthright, uncompromising language.

    38. But the reach of this tool is not unlimited. Section 3 is concerned with interpretation. This is apparent from the opening words of section 3(1): 'so far as it is possible to do so'. The side heading of the section is 'Interpretation of legislation'. Section 4 (power to make a declaration of incompatibility) and, indeed, section 3(2)(b) presuppose that not all provisions in primary legislation can be rendered Convention compliant by the application of section 3(1). The existence of this limit on the scope of section 3(1) has already been the subject of judicial confirmation, more than once: see, for instance, Lord Woolf CJ in Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] 3 WLR 183, 204, para 75 and Lord Hope of Craighead in R v Lambert [2001] 3 WLR 206, 233-235, paras 79-81.

    39. In applying section 3 courts must be ever mindful of this outer limit. The Human Rights Act reserves the amendment of primary legislation to Parliament. By this means the Act seeks to preserve parliamentary sovereignty. The Act maintains the constitutional boundary. Interpretation of statutes is a matter for the courts; the enactment of statutes, and the amendment of statutes, are matters for Parliament.