Care plans, adoption and placement applications

Emma Greenhalgh and Joanne Oakes look at a recent Court of Appeal decision where it was submitted that a judge was wrong to make a final care order in circumstances where the court did not have a complete care plan before it to underpin the final care order that it made.

Re J (Care Plan for Adoption) [2024] EWCA Civ 265  is an interesting case that draws our attention to where the local authority is stating that their plan is one of adoption but they have not yet filed and served their placement application.

Background and orders made

The background to this matter was succinctly summarised by Baker, LJ as follows:

1) J has four older siblings. Children’s services have been involved with the family for over a decade because of allegations of child neglect, physical abuse, and the adults’ drug abuse. In January 2023, when the mother was pregnant with J, the local authority started care proceedings in respect of her four older children after an allegation that the mother had assaulted one of the children in the street. A psychologist’s assessment and a parenting assessment by the local authority each concluded that the parents could not safely care for any of the children.

2) Immediately after J’s birth in July 2023, the local authority initiated proceedings and the baby was made subject to an interim care order and, on discharge from hospital, placed in foster care. The initial social work statement in the proceedings proposed that there should be a further parenting assessment to consider whether the parents could care for J on his own. In the event, however, no further assessment was carried out. We were told that, at a case management hearing before HH Judge Kushner in August 2023, the judge indicated that no further assessment was necessary. In the following weeks, hair strand toxicology tests were carried out on the parents which in the mother’s case detected opiates and cocaine but not other drugs. According to the local authority, the parents’ attendance at contact visits with J was erratic.

3) The proceedings in respect of J were listed for f inal hearing alongside those relating to the older children. At a case management hearing on 5 October, the judge abridged the time estimate for the final hearing to one day. The local authority filed f inal care plans in accordance with its obligations under section 31A of the Children Act 1989. In the case of the four older children, the plan was for long-term foster placements but, in the case of J, “for him to achieve permanency through adoption”.

4) The local authority’s intention was for an application for a placement order in respect of J to be considered at the final hearing of the care proceedings. An application for a placement order was prepared but at the date of the final hearing it had not been filed, apparently because the local authority did not have a copy of J’s birth certificate and without it was unable to upload the application onto the online portal.

5) At the conclusion of the final hearing on 2 and 3 November 2023, the judge made care orders in respect of all five children and gave directions for the listing of the placement order application in respect of J later that month. An application on behalf of the mother for permission to appeal in respect of the order relating to J was refused by the judge.

The recital to the final care order read as follows:

“AND UPON the Court concluding proceedings in respect of the child by endorsing the Local Authority’s care plan for J to be placed outside of his family and making a final Care Order in favour of the Local Authority and listing the matter for a placement order hearing.”

In her judgment, the judge set out the issue relating to J at paragraph 27 and then went on to clarify:

“I think I have got to bite the bullet, frankly. It is not something– if I am wrong, then I am wrong, and somebody else will tell me. I am going to make the care order and I stand by what I say in terms of, essentially, the care plan which I approve is one of a permanent placement outside the family, I will hear the placement application and it is at that point that I will consider all the matters under both the Children Act checklist and indeed the Adoption Act checklist and consider the issue of consent. So there is further opportunity for the parents to make submissions at that particular point, or to argue that there should be–you know, all the arguments that you can make in that respect. I am not going to go through what they can and cannot do, it is the full spectrum, and I will consider it at that particular point. But, of course, I have given a judgment in the care proceedings, and that stands and is available for appeal if that is what is wanted, but will also inform various decisions going forward whatever they are.”

The appeal

The matter was appealed and Baker LJ recorded the five grounds of appeal as follows:

“19. …

1) T he judge was wrong to make a final care order in circumstances where the court did not have a complete care plan before it to underpin the final care order that it made.

2) The judge erred in her welfare and proportionality evaluation which was flawed and unfair because the judge adopted a linear, as opposed to holistic, approach, whereby the mother’s case and the other options available were argued, considered and evaluated under the Children Act only, and not on the basis of the heightened test for adoption (that ‘nothing else will do’) as summarised by Baroness Hale in Re B (A Child) (Care Proceedings: Threshold Criteria) UKSC 33.

3) The judge failed properly to consider the mother’s case that (a) it was wrong to proceed in the absence of a placement order application and (b) there was not sufficient evidence for a final care order to be made where there had been no assessment of the parents’ capacity to care for J alone.

4) The manner in which the judge expressed herself in her judgment was unfair to the parents.

5) The judge’s decision was unjust because of serious procedural or other irregularities in the proceedings. Her conduct of the case and behaviour towards the parties and counsel was unreasonable and bordered on the oppressive.

Baker LJ gave a helpful summary of the relevant law (not repeated here) and stated in terms of consideration of the care plan:

“31. … Where an application is made on which a care order might be made, section 31A of the 1989 Act requires a local authority to prepare a care plan for the future care of the child. Following amendments to the 1989 Act introduced by the Children and Families Act 2014, the degree to which the court is required to scrutinise the care plan is limited. Section 31(3A) and (3B) provide as follows (so far as relevant to this appeal):

“(3A) A court deciding whether to make a care order

(a) is required to consider the permanence provisions of the section 31 plan for the child concerned …

(3B) For the purposes of subsection (3A), the permanence provisions of a section 31A plan are

(a) such of the plan’s provisions setting out the long-term plan for the upbringing of the child concerned as provide for any of the following:

(i) the child to live with any parent of the child’s or with any member of, of any friend of, the child’s family;

(ii) adoption;

(iii) long-term care not within sub-paragraph (i) or (ii);

(b) such of the plan’s provisions as set out any of the following:

(i) the impact on the child concerned of any harm that he or she suffered or was likely to suffer.

(ii) the current and future needs of the child (including needs arising out of that impact);

(iii) the way in which the long-term plan for the upbringing of the child would meet those current and future needs.””

Baker LJ concluded as follows:

“42. In fairness to the judge, her instinct at the end of her judgment was to make an interim care order but in subsequent submissions she was persuaded to take a different course. She was understandably anxious to bring the proceedings to an end as soon as possible. She did not have the benefit of the legal analysis put before us by leading counsel, nor the time for reflection available to this Court but not to hard-pressed judges sitting at first instance. But the regrettable fact is that she made an order which was not open to her in law and which must therefore be set aside.”

The appeal was allowed on grounds one and two

In respect of ground three the mother was open to renew her application for independent assessment at the case management hearing.

In respect of grounds 4 and 5 Baker LJ made the following observation:

45. I propose to say nothing about the other grounds of appeal, save for the following brief observations about ground five. Ms Reynolds was plainly in a difficult position. The judge was faced with an extremely heavy list and presented with submissions which she found unattractive. There were some robust exchanges in which the judge said things which, on reflection, she might conclude could have been expressed differently. We have not heard a recording of the hearing so have not heard the tone in which the judge addressed counsel nor confirmed counsel’s assertion that the judge banged the desk. It is difficult to envisage circumstances in which it is ever appropriate for a judge to bang the desk. But reading the transcript as a whole, I did not consider that the judge conducted the hearing unfairly or in a way which led to an unjust outcome, save for the errors identified in grounds one and two on the basis of which I would allow this appeal.

This is an important reminder as to the care planning process. The care plan must be a properly reasoned decision and in no circumstances should a local authority run a final hearing for a placement order when the application has not yet been made.

Emma Greenhalgh and Joanne Oakes are barristers at 9 St John Street.