Can Care plans be twin tracked following re B-S?

CM and Blackburn with Darwen Borough Council (I) and M (A Child) (2) (by her children’s guardian) and others [2014] EWCA Civ 1479

This case, in which judgment was handed down on 18 November 2014 in the Court of Appeal, concerned a child who is now five years old. The lower court had made care and placement orders in favour of the local authority. There was no dispute that there was no family member who could care for the child and thus she would be placed outside her family. The disputed issue in the case was whether this should be an adoptive placement or long-term foster care, the local authority and the guardian favouring the former and the mother the latter. Given the mother’s views, she appealed against the making of a placement order, relying on the fact that the care plan envisaged a search for adopters for six months, then if that failed a concurrent search for either adopters or long term foster carers.

As Ryder LJ. put it, “The sole issue on this appeal is whether a court can make a placement order when the local authority’s care plan describes what has come to be known as a ‘dual track’ or ‘twin track’ approach. I shall refer to this as ‘dual planning’ and a ‘dual search’” …. .. .. This court is asked to decide whether the judge was right in law to decide that nothing else than adoption would do in the circumstance where the local authority’s own plan described something else in as short a period as six months.”

He concluded that neither the decision of the Supreme Court nor that of this court in Re B-S has created a new test or a new presumption and furthermore stated:

  • (a) The statutory tests are not re-drawn. ‘Nothing else will do’ is the conclusion of a proportionality evaluation after a process of deductive reasoning not a new presumption and not a standard of proof.

  • (b) It is not necessary to have a contingency in a care plan although it is desirable. A timetable within which a local authority have to implement a substantive order once proceedings have concluded is beyond the jurisdiction of the court and is not part of the prescribed content of a care plan.

  • (c) Recognising the possibility of failure by a contingency plan is appropriate. That is quite different from deciding that something other than adoption is required.

  • (d)There is no objection in principle to dual planning in an appropriate case. This case was appropriate because the placement decision was neither conditional upon the happening of an event nor the success of some extraneous process such as therapy. It was not a decision that one of two options would do.

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