Public Law Update – November 2018

Children – Public Law

20 November 2018


This Act received Royal Assent on 27.04.17 and, although most of it is not yet in force (except section 10 and Schedule 1, which deals with placement in secure accommodation outside England and Wales) Chapter 1, section 1 of the Act is a helpful reminder of the following “corporate parenting principles”:

  1. to act in the best interests, and promote the physical and mental health and well being, of those children and young people
  2. to encourage those children and young people to express their views, wishes and feelings
  3. to take into account the views, wishes and feelings of those children and young people
  4. to help those children and young people gain access to, and make the best use of, services provided by the local authority and its relevant partners
  5. to promote high aspirations and seek to secure the best outcomes, for those children and young people
  6. for those young children and young people to be safe, and for stability in their home lives, relationships and educational or work
  7. to prepare those children and young people for adulthood and independent living

Section 3 amends section 23 of the CA by obliging a local authority to give “care and support” to a care leaver, when that leaver expressly wishes it, until they are 25.

Section 8 tightens up the provisions of section 31 as to what needs to be set out in the care plan

Section 9 amends section 1(4) of the Adoption and Children Act 2002 to ensure that consideration is given to the relationship which the child has with prospective adopters as well as with “relatives and other persons….


  1. The Advocates Meeting.

A reminder that litigants in person are to be included.

Guardians and social workers should not be invited.

  1. Extension of the 26 weeks.

Although Section 32 (5) of the CA provides that a court may extend the 26 weeks needed to complete a case for up to 8 weeks (with further extensions under section 8) if “the court considers that the extension is necessary to enable the court to resolve the proceedings justly”, such extensions are not to be granted routinely and require specific justification.

Unfortunately, no other guidance is given.

Interestingly figures issued by the Ministry of Justice as at March 2017 show that only 56% of care cases were dealt with within 26 weeks.


P (A Child)[2018] EWCA Civ 1483

This is of interest because of the reference to FDAC.

Mother had severe alcohol addiction but had been abstinent for 13 months at the time of the final hearing and according to the expert psychiatrist had done everything she could. Judge refused to adjourn to give mother more time to prove herself and made care order and placement order, describing her improvement as “green shoots”.

Mother argued that had her case been dealt with in an FDAC court the result would have been different.

By the time of her appeal some months later mother was still abstinent.

Her appeal was allowed.

Re B-C (A Child)[2016] EWCA Civ 970

CJ refused LA’s application for an EPO. LA issued care proceedings but same CJ refused to list for a contested ICO on the basis that he had already heard the evidence.

Court of Appeal held that as there is no right of appeal from an EPO the decision not to list for a contested ICO hearing was wrong as it effectively gave the applicant no right of appeal.

The Special Guardianship (Amendment) Regulations 2016 were intended as reminder of the need, before the making of an SGO, for there to be a full report before court addressing:

the relationship between the applicants and the child

their understanding of and ability to meet the child’s needs and to protect the child from harm and any future risk

ability to look after the child until he/she is 18.

P-S (Children) [2018] EWCA Civ 1407

This case confirms that SGOs should not be made without proper assessment

It was agreed that two children should be placed with their respective paternal grandparents, who they knew but had not lived with.

The court was invited to make orders of its own motion and the judge at first instance made care orders which he described as “short term care orders” so that the placements could be tested out  before applications could be made for SGOs.

This was criticised by the Court of Appeal who confirmed that there was no such thing as “short term care order” and that the use of the court’s power to make SGOs of its own motion, rather than following a formal application, should be used sparingly.

T (A Child)[2017] EWCA Civ 1889

This is a helpful reminder of the court’s power to make a non-molestation order with a power of arrest in care proceedings by using its own inherent jurisdiction.

Re DAM (Children) [2018] EWCA Civ 386 confirms that the argument that “nothing else will do” does not apply to the making of a care order with a plan for long term foster care.

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