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CARE PROCEEDINGS: Re S and W (Care Proceedings) [2007] EWCA Civ 232
Date:20 MAR 2007

(Court of Appeal; Thorpe, Wall and Hooper LJJ; 15 March 2007)

In a case that demonstrated the difficulties that could arise in care proceedings when there was a late change of stance by the local authority, the Court re-stated the relationship between court and local authority in care proceedings. Not only did the court have a duty rigorously to scrutinise the care plan and to refuse to make a care order if it did not think the plan in the child's best interests, the court also had the right to invite the local authority to reconsider the care plan, if the court had come to the conclusion that the plan, or any change in the plan, involved a course of action contrary to the interests of the child and would be likely to lead the court to refuse to make a care order. The 'lesser of two evils' test, when choosing between making no order or approving the care plan, did not come into play until after the local authority had been given every opportunity to reconsider the plan, in the interests of the child. Although the judge had been entitled to act as he had, the local authority's subsequent unprincipled conduct had made a re-hearing inevitable; the authority should bear in mind that it was not entitled to implement whatever placements it thought appropriate pending the re-hearing. Any attempt to implement the changed care plans without the express approval of the court would not only be unprincipled in the context of the relationship between the court and the authorities, it would also be irrational and likely to be struck down by a court exercising the power of judicial review. The decision-making process of the local authority was strongly criticised; in particular the local authority should not have considered itself bound by the decision of the fostering panel.