court judges exceeded jurisdiction with care orders
Clare Dyer, legal correspondent Friday March 15, 2002
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
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
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
Lord Mackay of Clashfern, one of the judges giving judgment yesterday,
"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.