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Appeal court judges exceeded jurisdiction with care orders 
 Clare Dyer, legal correspondent  Friday March 15, 2002
 The Guardian 
 The UK's highest court, the House of Lords, ruled yesterday that three  appeal court judges exceeded their jurisdiction and usurped the role of  parliament when they rewrote the Children Act to give the courts greater  supervisory powers over children in care.
 The law lords took the appeal court to task for going beyond the new powers  introduced by the Human Rights Act in October 2000 to reword laws to make  them comply with the European convention on human rights.
 
 But the law lords made a plea to the government and parliament to take  action on the serious failings in the child care system highlighted by the  appeal judges.
 
 "The view, widespread among family judges, is that all too often local  authorities' discharge of their parental responsibilities falls short of an  acceptable standard," said Lord Nicholls.
 
 He said it was understandable that the appeal court should seek to do  something about the cases in which care plans had not been implemented and  children's welfare was being prejudiced.
 
 The appeal judges, lords justices Thorpe and Sedley and Lady Justice Hale,
 reworded the act to give the court greater powers to oversee the way social  workers carry out plans for children in care.
 
 They ruled that judges should have more scope to make interim, rather than  final, care orders. A second innovation was that the milestones of a care  plan would be "starred" and the case could be brought to court if a starred  milestone was not reached by a certain time.
 
 Lord Nicholls said it was a principle of the Children Act that the courts  had no power to intervene in the way local authorities discharged their  parental responsibilities once a final care order had been made. The Human  Rights Act created no power for judges to depart from a fundamental feature  of an act of parliament.
 
 "I consider this judicial in novation passes well beyond the boundary of  interpretation. It would constitute amendment of the Children Act, not its  interpretation. It would have practical ramifications for local authorities  and their care of children."
 
 The system would create extra work and expense and would be likely to have a  material effect on councils' allocation of resources. "These are matters for  decision by parliament, not the courts."
 
 He added: "I cannot stress too strongly that the rejection of this  innovation on legal grounds must not obscure the pressing need for the  government to attend to the practical and legal problems identified by the  appeal court."
 
 He said the appeal court had "performed a valuable service in highlighting  the need for such an examination to be conducted without delay'.
 
 Lord Mackay of Clashfern, one of the judges giving judgment yesterday, said:
 "I would strongly urge that the government and parliament give urgent  attention to the problems ... so that we do not continue failing some of our  most vulnerable children."
 
 The law lords allowed appeals by the health secretary, Alan Milburn, and by  Bedfordshire county council, which had taken the children of a manic  depressive mother and an emotionally detached father into care. They  dismissed an appeal by the mother of three children from Torbay, Devon, who  was asking for an interim care order rather than the full care order made by  a circuit judge over her two younger children.

 

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