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The forbidden territories

Sep 29, 2018, 22:11 PM
Family Law, oublic law children cases, court, local authority, decision-making, judicial review
Andrew Bainham's article in the September issue of Family Law ([2018] Fam Law 1150) explores the tension between the powers of the court and the statutory duties of the local authority in public law children cases. Just as the court must not enter the forbidden territory of the local authority, so the local authority must not trespass on the forbidden territory of the court. Hence there are two forbidden territories and the search is for where the border truly lies.
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Date : Aug 28, 2018, 06:31 AM
Article ID : 117357

Andrew Bainham's article in the September issue of Family Law ([2018] Fam Law 1150) explores the tension between the powers of the court and the statutory duties of the local authority in public law children cases. Just as the court must not enter the forbidden territory of the local authority, so the local authority must not trespass on the forbidden territory of the court. Hence there are two forbidden territories and the search is for where the border truly lies.

The author begins by looking at two Court of Appeal authorities, Re W (Care Proceedings: Functions of Court and Local Authority) [2013] EWCA Civ 1227, [2014] 2 FLR 431 and Re T (A Child) (Placement Order) [2018] EWCA Civ 650, [2018] FLR (forthcoming). These decisions establish that a local authority’s decision-making might be susceptible to judicial review where it fails to give effect to a court’s welfare decision. He argues that this falls short of providing any over-arching theory or guidance on the legitimate extent of the court’s scrutiny of and directions regarding care plans.

The key to a clearer understanding of the court’s role derives from the ‘permanence provisions’ in the Children Act 1989 as amended in 2014. The author is critical of the failure by local authorities to give speedy effect to courts’ decisions which are at odds with their own care planning. Transcripts of the courts’ welfare decisions should be more speedily and readily available to children’s services. The practice of ‘inviting’ local authorities to amend or replace care plans (as opposed to directing them to do so) is questionable. Judgments should be expeditiously followed without prevarication or unnecessary bureaucracy.


The full version of this article appears in the September 2018 issue of Family Law

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