Cheshire County Council and others v DS (Father) and others: CA 15 Mar 2007

The court granted an appeal in care proceedings, but examined the relationship between the court and local authorities. There had been a late change in the proposed care plan and an application by grandparents to be made party. Some in the authority, and the guardian, wanted a stranger adoption, but the authority and the family proposed care with family members. The judge had not made an order he did not feel was in the child’s best interests, but called on the authority to reconsider its proposal.
Held: The authority’s appeal failed. The court could not get around the fact that ‘whatever course of action this court took, the local authority had expressed itself as determined to maintain its changed plans to place all three children within the family. ‘ The matter should be re-heard in the family division by a judge also authorised to sit in the Administrative Court. This would allow the court to make further orders as required. Responsibility for making care orders is on the court, not the local authority which brings the proceedings. A local authority must prepare a care plan and keep that care plan under review and revise it when necessary. Once the court has made a final care order, responsibility passes to the local authority and neither the court nor the children’s guardian has any further role in the children’s lives. However ‘not only does the court have the duty rigorously to scrutinise the care plan and to refuse to make a care order if it does not think the plan in the child’s best interests; the court also has the right to invite the local authority to reconsider the care plan if the court comes to the conclusion that the plan – or any change in the plan – involves a course of action which the court believes is contrary to the interests of the child, and which would be likely to lead the court to refuse to make a care order if the local authority were to adhere to the care plan it has proposed. ‘
Care proceedings are only quasi-adversarial. There is a powerful inquisitorial element. They are proceedings in which the court and the local authority should both strive to achieve an order which is in the best interests of the child. There needs to be mutual respect and understanding for the different role and perspective which each has in the process. The shared objective should be to achieve a result which is in the best interests of the child.
The court was seriously disappointed at the failure of the authority to explain its actions. It had failed to reconsider its position as ordered: ‘the only reason we are interfering with the judge’s perfectly proper order is because of the unprincipled conduct of the local authority. ‘
Whilst care proceedings are pending, any ECHR issue should be dealt with in the care proceedings, not in separate proceedings under the Human Rights Act. This applies also for judicial review. It is misconceived for a guardian or parent to seek judicially to review a care plan in proceedings separate from the pending care proceedings themselves. Any consideration of the care plan and its appropriateness can and should normally be dealt with within the care proceedings.


Thorpe LJ, Wall LJ, Hooper LJ


Times 30-Mar-2007, [2007] EWCA Civ 232




Children Act 1989


England and Wales


CitedRe S and D (Child Care Powers of the Court ) CA 1995
The court considered the powers of the court in care proceedings where it did not approve the authority’s proposed care plan. The judge had made supervision orders in relation to both children coupled with an injunction restraining the mother from . .
CitedC v Solihull Metropolitan Borough Council FD 1993
The court allowed a limited period of ‘planned and purposeful delay’ before making a care order. Ward J: ‘We have heard much, as we have prepared for the implementation of the Children Act 1989, about partnership. One of those partnerships is the . .
CitedC-H (a Minor) (care or interim order) CA 1998
Thorpe LJ said: ‘The interdisciplinary character of the family justice system emphasises the co-operation that should exist between the court and public authority. It is, from my perception, inconceivable that there should not be reciprocal respect . .
CitedRe S (Children: Care Plan); In re W and B (Children: Care plan) In re W (Child: Care plan) HL 14-Mar-2002
The Court of Appeal had imposed conditions upon the care plan to be implemented by the local authorities, identifying certain ‘starred’ essential milestones. The local authorities appealed.
Held: This was not a legitimate extension of the . .
CitedIn Re J (Minors) (Care: Care Plan) FD 1994
The judge had found that the threshold criteria in section 31 had been met, but the authority changed the care plan immediately before the final hearing. The guardian now appealed a final order, having proposed an interim order.
Held: Once the . .
CitedIn re V (a Child) (Care proceedings: Human Rights Claims) CA 4-Feb-2004
In a hearing where the threshold standard was at issue, a party challenged the compliance with Human Rights law of the 1989 Act. The court adjourned the case for transfer to the High Court.
Held: The correct court to hear such suggestions was . .
CitedIn re V (a Child) (Care: pre-birth actions) CA 12-Oct-2004
Immediately after a child was born, the social worker began proceedings for it to be taken into care. The judge severely criticised the actions of the social worker before the birth. The local authority now appealed against an order at the . .
CitedRe M (Care: Challenging Decisions by Local Authority) FD 2001
Local authorities involved in care proceedings will infringe the rights of parents and other individual parties to them under both Article 6 and Article 8 of the Convention unless they conduct themselves with integrity, transparency and . .
CitedNJ v Essex County Council and Another; In re J (Care: Assessment: Fair Trial); Re J (a child) (care proceedings: fair trial) CA 11-May-2006
The family complained that the local authority had, in assessing the need for a care order, failed to follow the guideliens set down in In Re L, leading to an infringement of their human rights.
Held: Neither in the lower court nor here had . .
CitedRe X; Barnet London Borough Council v Y and Z FD 2006
The judge refused to endorse a local authority’s care plan, and invited the local authority to reconsider it. He criticised the local authority for taking an important decision in pending care proceedings without any warning to the guardian and . .
Lists of cited by and citing cases may be incomplete.

Children, Litigation Practice, Human Rights

Updated: 10 November 2022; Ref: scu.250038