Children in care
29 April 2002
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It is frequently, and sometimes incorrectly, assumed that children will return home under care orders when the local authority has said so in its care plan. The House of Lords has re-established that these decisions are for local authorities to make.
Unless and until a care order is made, it is the court that decides whether or not the children should return home. The court also determines whether the amount of contact with parents allowed by the local authority is reasonable. After a care order has been made, the court continues to have power to resolve disputes about contact, but it is then the local authority that decides whether the children can safely go home.
In some cases, there is a plan under the care order to return the children to their natural family. Parents may agree to care orders on the basis that packages of support, training, counselling and treatment necessary to make the plan to return them home viable will be available. Sometimes, for a variety of reasons, things promised are not delivered and plans are changed after a care order has been granted. Key milestones required by the care plan are not met and parents are understandably left feeling cheated and misled, yet have little practical recourse. They can apply to have the care order discharged, for contact to be significantly increased, or for a residence order, but these steps usually fail because the essential concerns which led to the care order remain.
In May 2001, the Court of Appeal introduced a scheme in W and B  2 FLR 582 whereby the court could put off the transfer of responsibility to the local authority by making only interim care orders. Alternatively, the court could require the key milestones to be given a starred status. If events required by the care plan were not met within a specified timescale, the case could be brought back to court.
All this was arguably a great step forward, particularly for parents, but W and B was appealed. The House of Lords concluded that this innovative system was not permitted by the legislative framework. It was further said that the starring system would impose additional strains on local authorities in the allocation of scarce financial and other resources and would affect authorities' discharge of their responsibilities to other children. There would have been a need to produce a formal report whenever a care plan was significantly departed from and then parties would have to await the outcome of any subsequent court proceedings. Supervision by the court would encourage 'drift' in decision-making, a perennial problem in children cases - some care cases take years to resolve.
The House of Lords decision returns us to the position that once a care order has been made, the court has no supervisory role in monitoring the local authority's discharge of its responsibilities.
The House of Lords has invited Parliament to consider the serious problems identified and whether some degree of court supervision of local authorities' discharge of their parental responsibilities would bring about an overall improvement in the quality of child care provided. Neither the debate nor any change is likely to happen soon. Change itself will be expensive. While the Budget has commendably increased funding to combat child poverty, no significant increase is apparent for local authority child care departments. We rightly regard children as being important. Damaged children are losses to society, often resulting in wider and chronic problems. We spend large sums on the court process and yet fail some of our most vulnerable children for lack of funds to provide something which has been assessed by all concerned to be in their best interests.
In the absence of change, courts and practitioners need to take special care in ensuring, without being overzealous, that the local authority will be able to deliver what has been agreed. Local authorities must be ready to say that there can be no guarantees. Parents need to be advised that if they agree to a care order on the basis of rehabilitation, the plan may unavoidably be altered, resulting in the children not going home. All concerned must minimise possible problems by anticipating them and addressing them in advance through careful negotiation.