“Persuasion not pressure” – what can the court do if a local authority refuses an invitation to amend a care plan?

Meredith Rawsthorne

Meredith Rawsthorne writes:

The relationship between the courts and local authorities has been described as a partnership through mutual respect in order to achieve an outcome which is in the best interests of the child. (Re S and W (Care Proceedings) [2007] EWCA Civ 232)

During the first six months of my pupillage, I’ve been able to see how this partnership works first hand with the court ensuring that the child’s welfare is their paramount concern when deciding what order to make.

One issue that I recently observed was a local authority refusing to amend their final care plan upon receiving judgment. This then developed further when the local authority then refused to amend their plan at a later hearing.

Noted by Lord Justice Ryder in Re W (A Child) (Care Proceedings: Court’s Functions) [2013] EWCA Civ 1227 (also known as W (A Child) v Neath Port Talbot County Borough Council):

there is no purpose in Parliament having decided to give the decision whether to make an order and the duty to consider the basis upon which the order is made to the judge if the local authority that makes the application can simply ignore what the judge has decided and act as if they had made the decision themselves and on a basis that they alone construe.”

It is highlighted in Re B-S (Children) [2013] EWCA Civ 1146 that:

it is the obligation of the local authority to make the order which the court has determined is proportionate work.”

 Furthermore, in Re W:

it is simply not open to a local authority within proceedings to decline to accept the court’s evaluation of risk, no matter how much it may disagree with the same.”

By not accepting the court’s evaluation, the local authority are acting unlawfully in not amending their care plan and run the risk of being judicially reviewed.

As set out in Re T [2018] EWCA Civ 650, changing of a care plan can be “at the local authority’s own initiative or at the suggestion of another party or at the suggestion of the court…The family court cannot dictate to the local authority what its care plan is to be, any more than it can dictate to any other party what their case should be”.  As referenced by Munby J in Re H (Children) [2018] EWFC 61, the case of Re N (An Audit) (Court of Protection: Jurisdiction) [2015] EWCA Civ 411 states that: “the court, if it seeks to alter the local authority’s care plan, must achieve its objective by persuasion rather than by compulsion.” Further, “Rigorous probing, searching questions and persuasion are permissible; pressure is not”.  The difference between persuasion and pressure is subjective to every single person. What one may perceive as “mere persuasion” may be interpreted as being put under pressure by another.

To prevent the risk of applying such pressure, what the court can do is give some time for the local authority to consult with any management personnel. It would be constructive for any judgment to be given in writing so there is no mistake or ambiguity as to the court’s risk evaluation.

It is unlikely that such a change in position would happen on the same day, and this could be seen as the court applying pressure if the local authority are given too strict of a time limit to consider their position. As a result, the matter may have to be adjourned until a later date for further discussions to take place. This would give ample time for reflection and an opportunity for further meetings to take place and, if needed, further legal advice to be obtained. Consideration should be given as to the possibility of a member of the senior management team and/or the agency decision maker to attend the next hearing if the position does not change.

The court may ask the local authority to consider, more than once, their decision to not amend their care plan if the care plan is still deemed to be deficient (Re W). However, there is little guidance as to how many opportunities to reconsider should be given. The case law states, “more than once”. But how many times can the court make this suggestion to the local authority before it becomes pressure rather than persuasion? Due to the nature of family proceedings being heard in private and how rarely this issue occurs, there does not seem to be much guidance on this. At a minimum, one opportunity allowing ample time for reconsideration should be given.

However, even after this time is given and further discussions have taken place, there is still the risk that the local authority refuse to amend their care plan. As stated in the case of Re W at paragraph 85 – “If the local authority disagree with the judge’s risk evaluation they must in a case where it is wrong appeal it”. If there is a fundamental disagreement with the court’s risk evaluation, then it should be appealed within the relevant timeframe. If the local authority decide not to appeal the judgment, then there is a duty upon them to “respect it and work with it while the proceedings are outstanding” (Re W).

The other alternative is for one of the parties to formally challenge the local authority’s decision by judicial review. While it is rare for it to get to the stage of judicial review, the remedy is there and available for decisions like these. However, this should be an absolute last resort. As encouraged by Thorp LJ in Re CH (Care or Interim Care Order) [1998] 1 FLR 402, the litigation process should be used maximum effect. That is what the court is there for. Every possible route should be exhausted before a decision of the local authority is judicially reviewed.

What should be kept at the forefront of the parties’ minds during all of this is the impact on the child of further delay. The ongoing intervention into the child’s life could ultimately be disproportionate and drag out proceedings longer than they need to be.

Ultimately, what the child needs is a final order and a care plan that is in their best interests. In achieving this, the court and the local authority must demonstrate the mutual respect they have for each other in preventing an impasse like this from occurring.

Written by Meredith Rawsthorne