Care Orders and Home Placements: removal and the public funding conundrum | Michael Jones, 15 Winckley Square Chambers | FAMILY LAW WEEK | 7 July 2014
Michael Jones, barrister, of 15 Winckley Square Chambers considers the lessons to be learned from Re DE (A Child) when care plans provide for placements at home with the family.
The Re B and Re B-S effect
The decisions in Re B  UKSC 33 and Re B-S (Children)  EWCA Civ 1146 have had a massive impact upon the long-term care planning of local authorities. It is generally accepted amongst practitioners that the recent line of case law has made it increasingly difficult for local authorities to obtain the court’s approval of adoptive care plans in respect of subject children. This is due to the fact that the degree of analysis and evaluation needed within the local authority evidence in order to support a care plan of adoption is now much higher in the post Re B-S landscape; the bar has been raised and the court must be satisfied that “nothing else will do”. One of the ramifications of the decision in Re B-S is that, in the medium to long term, practitioners have experienced – and will more than likely continue to, experience – an increase in the number of care orders being made by the courts, accompanied by care plans for the placement of the subject child at home within the family.
Local authorities will inevitably issue care proceedings and, on occasion, find themselves in a position where it is simply not possible to provide the court with the necessary evidence in order to justify the argument that nothing else will do save for placement outside the birth family. From the perspective of a local authority, this leaves a situation where the local authority continues to be responsible for the child whilst he or she remains in the care of their parents. For parents, the obvious positive is that they will remain living with their child, albeit, with the local authority sharing parental responsibility. The problem, from the perspective of a parent, comes in circumstances where, at a later date following the conclusion of care proceedings, the local authority makes the decision to remove the child from their care.
Children Act 1989, section 33
The law in this area is clearly set out at section 33(1) of the Children Act 1989:
“Where a care order is made with respect to a child it shall be the duty of the local authority designated by the order to receive the child into care and to keep him in their care while the order remains in force.”
Section 33(3) of the Act reads:
“While a care order is in force with respect to a child, the local authority designated by the order shall –
(a) have parental responsibility for the child; and
(b) have the power (subject to the following provisions of this section) to determine the extent to which
(i) a parent, guardian or special guardian of the child; or
(ii) a person who by virtue of s.4(a) has parental responsibility for the child,
may meet his parental responsibilities for him.”
Following on from this, under section 33(4), it is stated that:
“The authority may not exercise the power in subs.(3)(b) unless they are satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare.”
Accordingly, the law states that, in circumstances where a child is placed at home under a care order, the designated local authority may not remove that child from the care of the parents unless it is satisfied that such a step is necessary in order to safeguard or promote the child’s welfare.
Protection of human rights
Importantly, the Children Act also states at section 39(9) that:
“The power in subs.(3)(b) is subject (in addition to being subject to the provisions of this subsection) to any right, duty, power, responsibility or authority which a person mentioned in that provision has in relation to the child at his property by virtue of any other enactment.”
This, therefore, encompasses the human rights element set down by The European Convention for the Protection of Human Rights and Fundamental Freedoms and incorporated into domestic law by the Human Rights Act (HRA). Under article 8 of ECHR,
“(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There should be no interference by a public authority with exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country for the prevention of disorder or crime, for the protection of health of morals, or the protection of the rights and freedoms of others.”
Under section 6(1) of HRA, it is unlawful for a public authority to act in a way which is incompatible with the ECHR; a local authority must therefore not act in a manner which would infringe the article 8 rights of either a child or a parent. The case of Re S (Minors)(Care Order: Implementation of Care Plan): Re W (Minors)(Care Order: Adequacy of Care Plan)  UKHL 10 confirms that the court, when dealing with care proceedings, may invoke its jurisdiction under section 8(1) HRA 1998 and grant appropriate relief to a victim of an unlawful act. Under section 7(1) of the HRA, any parent who claims that a local authority has acted, or is proposing to act, in a way that is made unlawful by s6(1) may either bring proceedings under the HRA or rely on the Convention right in any other legal proceedings under s8(1). A parent who is facing the removal of their child by a local authority following the making of a care order can, therefore, apply to the court to invoke its jurisdiction and grant an injunction, preventing the local authority from instigating the removal.
Re DE (A Child) 
The matter of removal following the conclusion of care proceedings has recently arisen in the case of Re DE (A Child)  EWFC 6. This was an appeal heard by Baker J, in relation to the decision of a district judge, dismissing the father’s application for injunctive relief in order to prevent the removal of his child. The facts of this case were that the child, D, had been made subject of a care order with a care plan being that of a home placement with both of his parents. Later, following the conclusion of the care proceedings, the local authority formed the view that it was no longer manageable or safe to allow D to remain at home and sought to remove him from the care of the parents. The father applied to discharge the care order and also sought an injunction preventing the removal. Baker J allowed the appeal on the basis that the district judge’s decision to refuse the application for injunctive relief was plainly wrong; importantly the court also set down some general guidance for future cases which conclude with a child remaining at home under a care order and where a local authority later seeks to remove the child from the home. The problem for any parent facing this situation is that any local authority that shares parental responsibility under a care order, does not of course have to return the matter to court in order to remove the child from a placement with the birth family. Unfortunately, the only realistic way for a parent facing this situation to return the matter to the court arena is to apply for a discharge of the care order and, as any family practitioner in the public law arena is aware, this brings to the fore the overarching issue of obtaining public funding for such an application; there is no automatic entitlement to the same.
What is of great importance within the judgment in Re DE, is that Baker J noted the decisions in Re B and in Re B-S and how these cases have “changed the landscape” in respect of decision making in relation to children who are subject to care proceedings. After referring to the fact that, in light of the aforementioned authorities, any local authority and any court making the decisions about the long-term future of children must address all realistic options and conduct a global and holistic analysis before reaching a conclusion, the judge stated:
“To my mind, where a care order has been granted on the basis of a care plan providing that the child should remain at home, a local authority considering changing the plan and removing the child permanently from the family is obliged in law to follow the same approach. It must have regard to the fact that permanent placement outside the family is to be preferred only as a last resort where nothing else will do. Before making its decision, it must rigorously analyse all the realistic options, considering the arguments for and against each option. This is an essential process, not only as a matter of good practice, but also because the local authority will inevitably have to demonstrate its analysis in any court proceedings that follow the change of care plan, either on an application for the discharge of the care order or an application for placement order under the Adoption and Children Act 2002. This process of rigorous analysis of all realistic options should be an essential feature of all long-term planning for children. And, as indicated by Munby J in Re G, the local authority must fully involve the parents in its decision-making process.
“While this process is being carried out, the child should remain at home under the care order, unless his safety and welfare requires that he be removed immediately. This is the appropriate test when deciding whether the child should be removed under an interim care order, pending determination of an application under s.31 of the Children Act: Re L-A (Children)  EWCA Civ 822. The same test should also apply when a local authority’s decision to remove a child placed at home under a care order has led to an application by the parents to discharge the order and the court has to decide whether the child should be removed pending determination of the discharge application. As set out above, under s.33(4) of the 1989 Act, the local authority may not exercise its powers under a care order to determine how a parent may exercise his or her parental responsibility for the child unless satisfied it is necessary to do so to safeguard or promote the child’s welfare. For a local authority to remove a child in circumstances where its welfare did not require it would be manifestly unlawful and an unjustifiable interference with the family’s Article 8 rights.” (paras 34 and 35)
This section of the judgment makes clear that the rigorous analysis required in light of Re B-S applies not only to care proceedings but also in circumstances where a care order has been made and the child remains residing with the parents (it is an essential feature of “all” long-term care planning for children). A local authority cannot simply make a decision to remove a child without being able to fully justify it in line with the principles set down by Re B-S, Re B and Re L-A; there must be a detailed analysis weighing up all possible placement options and fully justifying removal on the basis that the child’s safety requires immediate separation from the parents. Any local authority that removes a child from a home placement under a care order and fails to evidence the required degree of assessment and analysis resulting in removal, may well find itself facing injunctive relief under the Human Rights Act at the first hearing of any discharge application.
G v N County Council 
Another case of note in the context of removal of children from the family under the auspices of a care order is G v N County Council  EWHC 975 (Fam),  1 FLR 774. Within the G v N judgment, McFarlane J, as he was then, stated the following:
“The issue is the approach a local authority should take to changing the care plan under the care order and, whilst the established level of concern and background established by the care order is there, the previously proportionate plan of having a child at home, if it is to be changed, has to be changed after a proper consideration and assessment of all of the available evidence and in a way that meets the child and the mother’s human rights as described in the earlier decisions.
“In my view, the quality of decision-making and the consequences of it in the context of a case such as this are just as important and have consequences which are just as likely to be long term as is the case under an EPO. In fact, given the existence of emergency protection order and, in contrast, the limited options available to a parent in a case such as this, the human rights considerations require that the quality of the process should be at least as high, if not higher, as that in an emergency protection order case.
“It is not the function of this court to lay down restrictions as to the sort of assessment work that should be put in place before a radical change of care plans such as this, but it does seem that some formal assessment, whether it is called a core assessment or otherwise which draws together all of the evidence in a considered way rather than simply at LAC meetings or other professional gatherings, and give the parent a chance to contribute to that process, and then take stock of all of that material in the way that a core assessment would do, is the level of intervention and planning that should be brought to bear before a change of care plan as draconian as this takes place.” (paras 30-32)
This judgment pre-dates that of Re B-S and, as discussed above, any assessment work prior to removal of a child under a care order should now comply with the analytical guidance set down by Re B-S. The interesting point to be taken from G v N are the comments in relation to the quality of the decision making process being at least as high, if not higher, than that in the case of an emergency protection order.
Re G (Challenge to local authority’s decision) 
A further case of interest in respect of the decision making process following the making of a care order can be found in Re G (Challenge to local authority’s decision)  EWHC 551, where Munby J, as he then was, stated the following:
“In a case such as this, a local authority, before it can properly arrive at a decision to remove children from their parents, must tell the parents (preferably in writing) precisely what it is proposing to do. It must spell out (again in writing) the reasons why it is proposing to do so. It must spell out precisely (in writing) the factual matters it is relying on. It must give the parents a proper opportunity to answer (either orally and/or in writing as the parents wish) the allegations being made against them. And it must give the parents a proper opportunity (orally and/or in writing as they wish) to make representations as to why the local authority should not take the threatened steps. In short, the local authority must involve the parents properly in the decision-making process. In particular the parents (together with their representatives if they wish to be assisted) should normally be given the opportunity to attend at, and address, any critical meeting at which crucial decisions are to be made.”
Munby J clearly set out the correct decision making process which must be undertaken by any local authority seeking to remove a child who is subject to a care order. In the event that the local authority has failed to follow such a procedure, save in cases of a justifiable emergency, it could be argued that the procedure has been plainly inadequate and unfair.
Baker J’s general guidance in Re DE
In Re DE, Baker J concluded by setting out the following general guidance in respect of cases where a local authority seeks to remove a child that is subject to a care order. This guidance was seen and approved by the President of the Family Division:
(1) In every case where a care order is made on the basis of a care plan providing that a child should live at home with his or her parents, it should be a term of the care plan, and a recital in the care order, that the local authority agrees to give not less than fourteen days notice of a removal of the child, save in an emergency. Fourteen days is an appropriate period, on the one hand to avoid unnecessary delay but, on the other hand, to allow the parents an opportunity to obtain legal advice;
(2) ?Where a care order has been granted on the basis of a care plan providing that the child should remain at home, a local authority considering changing the plan and removing the child permanently from the family must have regard to the fact that permanent placement outside the family is to be preferred only as a last resort where nothing else will do and must rigorously analyse all the realistic options, considering the arguments for and against each option. Furthermore, it must involve the parents properly in the decision-making process;
(3) In every case where a parent decides to apply to discharge a care order in circumstances where the local authority has given notice of intention to remove a child placed at home under a care order, the parent should consider whether to apply in addition for an injunction under s.8 of the HRA to prevent the local authority from removing the child pending the determination of the discharge application. If the parent decides to apply for an injunction, that application should be issued at the same time as the discharge application;
(4) When a local authority, having given notice of its intention to remove a child placed at home under a care order, is given notice of an application for discharge of the care, the local authority must consider whether the child’s welfare requires his immediate removal. Furthermore, the authority must keep a written record demonstrating that it has considered this question and recording the reasons for its decision. In reaching its decision on this point, the local authority must again inter alia consult with the parents. Any removal of a child in circumstances where the child’s welfare does not require immediate removal, or without proper consideration and consultation, is likely to be an unlawful interference with the Article 8 rights of the parent and child;
(5) On receipt of an application to discharge a care order, where the child has been living at home, the allocation gatekeeper at the designated family centre should check whether it is accompanied by an application under s.8 of HRA and, if not, whether the circumstances might give rise to such an application. This check is needed because, as discussed below, automatic legal aid is not at present available for such applications to discharge a care order, and it is therefore likely that such applications may be made by parents acting in person. In cases where the discharge application is accompanied by an application for an order under s.8 HRA, or the allocation gatekeeper considers that the circumstances might give rise to such an application, he or she should allocate the case as soon as possible to a circuit judge for case management. Any application for an injunction in these circumstances must be listed for an early hearing;
(6) On hearing an application for an injunction under s.8 HRA to restrain a local authority removing a child living at home under a care order pending determination of an application to discharge the care order, the court should normally grant the injunction unless the child’s welfare requires his immediate removal from the family home.
The lessons learned
The first thing any practitioner representing a parent in the case of a planned removal of a child under a care order must do is to ensure that the local authority have followed the correct process. Save for emergency situations, 14 days notice should have been provided to the parents and there should be a full analysis, ideally in assessment format (the comments of Munby J in Re G specifically refer to reasoning justifying removal, preferably being in writing), evidencing the need for removal in accordance with the relevant authorities (Re B, Re B-S). In any case where a discharge application is made on behalf of a parent, consideration must also be given to making an application for injunctive relief under section 8 of the Human Rights Act, in order to attempt to prevent removal prior to the court having had the opportunity to fully consider the discharge application; this then gives the court the option to list the matter for a contested interim hearing in respect of the injunction application if necessary. It is notable that Baker J’s guidance clearly states that the court should normally grant the injunction unless the child’s welfare requires immediate removal.
From the perspective of local authorities, it is crucial that, save in cases of an emergency, the appropriate process set out in the guidance above is followed and that ideally a full, detailed and analytical social work assessment is carried out prior to the notice of the decision to remove the child being provided to the parents; any such assessment must comply with the guidance set down by Re B-S and justify any plan for immediate removal on the basis that the child’s safety requires the same. There is no legal requirement for such a written assessment but it appears quite plain from the relevant case law that it is good practice to make such a document available to the parents and their representatives in anticipation of any decision to remove. All parties to care proceedings which conclude with a home placement under a care order will also have to have in mind that it should be included within the care plan and recited on the final order, that the local authority agrees to give 14 days notice prior to the removal of the child, save for in an emergency.
Public funding of proceedings
The main problem however, is surely that of funding. In the case of Re DE the only reason the father’s application for discharge was brought before the court was due to the fact that his solicitor had agreed to represent him on a pro bono basis. The fact of the matter is that currently a parent facing an application by a local authority for a care or supervision order (neither of which necessarily entail the actual removal of a child) is automatically entitled to public funding. However, a parent facing the imminent removal of their child in a case where a care order has been granted, has no automatic entitlement to such funding; it is difficult to see how it can be right that a parent facing such a scenario has no recourse to public funding despite the potentially huge ramifications of the removal of their child and the significant interplay of human rights issues. It is notable that in Re DE the father lacked litigation capacity and was still not eligible for public funding to support his discharge and injunction applications; there is little doubt that the lack entitlement to public funding in such circumstances is arguably a human rights issue in itself. The question is whether, in a new landscape where the number of cases which conclude with children being placed at home under care orders will increase and where local authorities later seek to remove children from these family placements, there will be any reform of the current rules in respect of the eligibility to public funding in such cases. One would expect that there has to be in order to ensure that the human rights of children, as well as those of parents, can be protected.
26 Nov 2016 – The District Judge disagreed and decided that a care order should be made. … and the decision of Baker J in Re L-A (Children)  EWCA Civ 822, … Fifthly, a care order will last (unless it is discharged) for the whole of a …
29 Jun 2015 – This was the mother’s application to discharge the care order on her son …. the Care Order should be discharged and simultaneously on the LA …
http://www.frg.org.uk › Parents’ discussion topics › Do you have a child in care?
To successfully discharge a care order, you would need to show that there … of the court which willgive the reasons for the care order being made. … We did contact the LA around 18 months after the final hearing to be told …
If your child is taken into care because of a care order, your council will share … guardianship; the court lifts the order (this is called ‘discharging‘ the order).
5 Aug 2014 – home throughout the proceedings albeit under interim care orders. … improvement/worsening of home conditions, there should be care orders at ….. discharge of the care, the local authority must consider whether the child’s.
3 Aug 2016 – The Local Authority can provide services under section 17 Children Act …. A Care Order can only be discharged by the court on the application …
Plans are then to be considered and put in place to discharge the Care Order as soon as it is feasibly possible. This will only be done if it is in the child or young ..