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 removing the children from the foster home in which the local authority had placed them. The mother appealed against the making of the injunction, and local authority appealed against the judge’s refusal to make a care order. The judge had said: ‘I have to ask the question, what on earth are we to do where a local authority refuses to be persuaded by what, in my judgment, is absolutely overwhelming evidence to the effect that their plan is flawed? They have had ample opportunities to review their stance. It would have been no discredit to them at all had they decided to review the position in the light of what has been said. They have chosen not to.
I cannot make a care order. These two children in my judgment, cannot be allowed to remain in the care of their mother. That must be prevented if it can.’
Held: Both appeals were allowed. Balcombe LJ: ‘The Judge is therefore faced with the dilemma with which this Judge was faced that, if he makes a care order, the local authority may implement a care plan which he or she may take the view is not in the child or children’s best interests. On the other hand, if he makes no order, he may be leaving the child in the care of an irresponsible, and indeed wholly inappropriate parent.
It seems to me that, regrettable though it may seem, the only course he may take is to choose what he considers to be the lesser of two evils. If he has no other route open to him – and certainly the route chosen by the Judge in this case was one which, in my judgment, was not open to him – then that is the unfortunate position he has to face.
I have to say that this is not a position to which Judges who exercise jurisdiction in the family courts are unaccustomed. There is very rarely a right answer in relation to children – it is usually a case of trying to decide which is the less wrong one.
It is an unhappy position, where there is a dispute between all those whose professional duty it is to have the best interests of the children at heart, if they cannot reach agreement. But in those particular circumstances, as I see it, the Judge really has no alternative. He has to choose what he believes to be the lesser of two evils. That may be making a care order with the knowledge that the care plan is one which he does not approve, or it may be making no order with the consequences to which I have already adverted.’
Judges:
Balcombe LJ
Citations:
[1995] 1 FCR 626
Statutes:
Jurisdiction:
England and Wales
Cited by:
Cited – B (Minors) CA 27-Nov-1996
The case concerned applications for care orders. Four young girls would be separated from their elder sister and their mother, who sought interim contact. The judge disagreed with the care plan proposed by the local authority. His powers were, . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Children
Updated: 12 December 2022; Ref: scu.182947