Care proceedings involve a two stage legal test

As we discussed in another post about ‘threshold criteria’,  a court can only make a care or supervision order if it is satisfied it has passed both parts of a two stage test –

First – that the necessary ‘threshold criteria’ must be found proved on the balance of probabilities  in order to show that the child has suffered or is at risk of suffering significant harm.

Second – is it is in the best interests of the child to make a care or supervision order?

This second stage is often called ‘the welfare stage’ because the court has to focus on what order would best meet the child’s interests; or in other words, what does the child’s welfare require the court to do?

It used to be called the ‘disposal stage’ but it was soon noticed that this was an unpleasant way to refer to children’s proceedings. ‘Welfare stage’ is a much more appropriate way of signposting that the focus should now be on what the child needs.

Therefore, even if the court is satisfied a child has suffered significant harm, a care order and removal from the parents does not automatically follow. For example, if the parents have engaged with the LA and are working to change things for the better, the court may make no order or only a supervision order.

Or the court may make a child arrangements order (previously ‘residence order’) or Special Guardianship order in favour of another family member, which may mean the parents can carry on having direct contact with the children after the final hearing.

 

What does the court need to consider when looking at the ‘welfare stage’ ?

The fundamental principle behind the Children Act 1989 can be found in Part 1, section 1. This states that when the court is determining a question with regard to a child’s upbringing:

The child’s welfare shall be the paramount consideration

We need to unpick what is meant by that. Section 1(2) reminds the court of the principle of ‘no delay’ i.e there is an assumption that any delay in making a decision is likely to harm the child’s welfare. You can argue that ‘planned and purposeful’ delay could actually be a good thing for the child – for example, you need more time to finish assessments of family members who could care for him. But you will need to remember the impact of the new Public Law Outline which sets a strict 26 week timetable for care proceedings to finish.

Section 1(5) sets out the ‘no order principle’ – the court should only make an order if this would be better for the child than no order at all. This is in line with the principle of ‘least intervention’ and the requirements of Article 8 of the ECHR.

Section 1(3) is very important as this sets out the ‘welfare checklist’ which is a reminder to the Judge of all the things he or she needs to show have been considered in the judgment. If a Judge makes a decision about a case but can’t show how the welfare checklist was considered, this could make the judgement vulnerable to an appeal.

 

The Welfare Checklist under the Children Act 1989

• the ascertainable wishes and feelings of the child concerned (considered in light of his age and understanding)
• his physical, emotional and educational needs
• the likely effect on him of any change in his circumstances
• his age, sex, and background and any characteristics of his which the court considers relevant
• any harm which he has suffered or is at risk of suffering
• how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs
• the range of powers available to the court under this Act in the proceedings in question

 

The welfare checklist under the Adoption and Children Act 2002

When the court is considering placement or adoption orders, the court must also consider a similar checklist in section 1(4)(a) to (f) of the 2002 Act

• the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding)
• the child’s particular needs
• the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person
• the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant
• any harm (within the meaning of the Children Act 1989 (c. 41)) which the child has suffered or is at risk of suffering
• the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including
  • the likelihood of any such relationship continuing and the value to the child of its doing so
  • the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs
  • the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.

 

The warnings from Re B-S (Children) [2013]

The recent case of Re B-S (Children) [2013] contained stern warnings from the Court of Appeal about the importance of good clear analysis about what was in a child’s best interests, particularly when the court was thinking about endorsing a care plan that would lead to adoption. 

The key points of the judgment can be summarised as:

• Adoption is the ‘last resort’ [para 22]
• the starting point needed to be consideration of the law around Article 8 of the European Convention and the fact that this imposes a positive obligation upon States to try to keep families together [paras 18]
• the least interventionist approach is to be preferred [para 23]
• The child’s interests are paramount, but the court must never lost sight of the fact that these interests include being brought up by his/her natural family [para 26]
• There must be proper evidence from the LA and the Guardian that addresses all options which are realistically possible and must contain an analysis of the arguments for and against each option.[para 34]
• The court then ‘must’ consider all available realistic options when coming to a decision; [para 27, 44]
• That the court’s assessment of the parents’ capacity to care for the child should include consideration of what support was available to help them do so [ para 28]
• The LA cannot press for a more drastic form of order because it is unable or unwilling to support a less interventionist form of order; it is their obligation to make the court order work [para 29]
• The Court of Appeal made it clear that it was ‘essential’ that a decision was made after a proper and thorough analysis of  all relevant evidence. There was a real danger of not making the right decision if the court took a ‘linear’ approach to the options, i.e rejecting option A, then moving on to option B etc.

They said at paragraph 44 of the judgment:

“We emphasise the words “global, holistic evaluation”. This point is crucial. The judicial task is to evaluate all the options, undertaking a global, holistic and (see Re G para 51) multi-faceted evaluation of the child’s welfare which takes into account all the negatives and the positives, all the pros and cons, of each option.”

The court also made it clear that proceedings could take longer than 26 weeks if more time was needed to resolve a case justly. See paragraph 49.

Suesspicious minds offers a good analogy to show us why  ‘linear evaluations’ of evidence can be so dangerous in this blog post