Care plans and dual planning

Mainstream iStock 000012829557XSmall 146x219The Court of Appeal has issued some gentle reminders for local authorites about care plans and given its explicit approval to 'dual planning'. In the first in a two-part series, Shaun Spencer explains the ruling.

On 18 November 2014 the Court of Appeal handed down judgement in the case of CM v Blackburn and Darwen Borough Council in which the court clarified the meaning of “nothing else will do” in relation to orders leading to adoption. In addition, the Court of Appeal took the opportunity to remind local authorities of what is and what is not required in care plans in Public Law Proceedings as well giving explicit approval to ‘dual planning’ in appropriate cases.

Facts

The mother appealed against the decision to make a placement order in relation to her daughter who was five years old. The mother did not appeal the making of a care order on the basis that she accepted that she would not be in a position to care for her child in the foreseeable future and no other family members were available to care for the child. The court at first instance therefore had to decide as between long term fostering or adoption for the child.

The court made a placement order and approved a care plan which provided for a six month exclusive search for an adoptive placement thereafter followed by searching for both an adoptive placement and a long-term foster placement (a “dual plan”).

Amongst the grounds of appeal, the appellant sought to argue that the approved care plan provided for two options as opposed to one option and one contingency option. This was argued on the basis that the timeframe of exclusive searching for an adoptive placement was so short as to be illusionary.

The Court of Appeal rejected this argument.

Contingencies and Time-Limits

In giving the lead judgment, Lord Justice Ryder took the opportunity to continue with his description of the duties and responsibilities of the court and of the local authority which he embarked upon in Re W (Care Proceedings: Functions of Court and Local Authority) [2013] EWCA Civ 1227. In Re W, the court gave details as to the responsibility for, and content of, care plans.

In CM v Blackburn Borough Council, the Court of Appeal reminds local authorities that in England the content of the section 31A plan is prescribed by the Care Planning, Placement and Case Review (England) Regulations 2010. That content does not require a timetable for any placement for adoption that it proposes. Put simply, it is not necessary for local authorities to state within any care plan the period of time it proposes to search for an adoptive placement before reverting to any contingency plan, such as long-term foster care.

Local authorities are under no obligation to even set out contingency plans within the care plan. This requirement previously arose by virtue of guidance issued by the Secretary of State under section 7 of the Local Authority Social Services Act 1970 as LAC (99) 29; however this guidance was impliedly withdrawn when the new regulatory regime was introduced. That said, the inclusion of a contingency plan might be seen as a matter of good practice.

As Ryder LJ stated in the appeal:

“It is accordingly relevant to observe that the words complained of in the care plan in this case need not have been there. Neither the timetable for the adoptive placement nor any contingency, in the event of the plan failing to be implemented, is a requirement of the regulatory scheme (see in particular regulations 9 and 11 and schedule 2 of the Regulations). Although by paragraphs 3(3)(c) of schedule 2 of the Regulations, the expected duration of a foster care placement has to be provided in a plan, that is only if the child is not in the care of the responsible (local) authority, a limit on the time taken to undertake an adoption search is personal to the welfare of the child concerned i.e. something based on the individual welfare needs of the child derived from the facts of the case rather than a general requirement. It is not a requirement placed upon an adoption agency by the Adoption Agencies Regulations 2005, as amended, which, like the 2010 Regulations, is silent about timescales”.

So where might timescales figure in the court’s considerations? In determining an application for a placement order the court is making a decision relating to the adoption of a child and therefore section 1 of the Adoption and Children Act 2002 applies. Within the considerations to which the court must have regard is the issue of delay. Delay being relevant to that decision because section 1(3) provides that in general any delay in coming to the decision is likely to prejudice the child’s welfare. Therefore, in determining whether to make a placement order the court may have regard to delay however, once a decision is made delay is a matter for the local authority’s adoption agency not the court.

This is made clear in the judgement at [28] and [29]:

“[28] In summary, therefore, it is no part of the court’s function to fix a timetable within which a local authority is to undertake the functions which are exclusively within its responsibility and operative discretion once a full care order and/or placement order has been made. Such a direction would fall outside the jurisdiction of the court. There is no requirement in the regulations which prescribe the content of a Care Plan that a timetable for a placement search to be contained in the face of that plan.

[29] There is an inevitable tension between a decision that adoption is required (in particular given the finality of the severance of the status of the birth family that such a decision involves) and the impact of delay on a particular child who is waiting for a placement. Once the court has decided that adoption is required, that tension is a matter for the local authority to consider, during its review processes. Ultimately, if an adoptive placement is not found the local authority should return to court to revoke the placement order.”

It therefore follows that during care proceedings it is open to the court to ask for information or evidence as to any potential delay which might be inherent in an adoptive care plan. This evidence can then be considered by the court in its determination as to whether to make a placement order or not. However, once the court has considered that evidence and decides to make the placement order it cannot bind the local authority to a timetable in which the local authority is to search for an adoptive placement before reverting to any contingency plan.

In practise this means that social workers may be asked to give evidence as to potential delay in finding adoptive matches, the court will factor that evidence into its determinations but if the order is made it will be for the local authority, as an adoption agency, to deal with and consider any actual delay which may occur. 

Shaun Spencer is a barrister at St Johns Buildings Chambers in Manchester.