The recent move by Cambridgeshire County Council in the much-publicised case of Jade and Hannah Bennett was obviously made with an eye to taking some of the heat out of the opposition to its social services department caused by Jeff and Jenny Bramley's dramatic gesture. It is likely that Cambridgeshire has had to discharge its care orders over both girls in order to invoke the assistance of the High Court's inherent jurisdiction. By doing this, the council has shifted the responsibility of deciding the future of the two girls away from itself and into the High Court - the independent body which the Bramleys sought.
The court has appointed the Official Solicitor to act as guardian ad litem for Jade and Hannah, which ensures that an experienced member of a central government department will investigate all the circumstances, consider what is in the girls' best interests, and make representation to the court on their behalf.
Given the number of natural parents and foster-parents involved, the Bramleys, as parties to the proceedings, may make whatever application to the court they wish through their solicitor, including one to adopt the girls; the girls' natural parents may be separately represented. In the meantime, no major change will be made without the court's sanction.
The question to ask is: why wasn't this step taken earlier? The Bramleys had been missing for 17 weeks with the two girls before Cambridgeshire social services department - publicly at any rate - started making conciliatory noises.
But the legal process the local authority has invoked is unusual - the council had to satisfy the court that the result that the council wanted to achieve could be achieved by the court only through its jurisdiction, and that there was reasonable cause to believe that the children were likely to suffer significant harm if that jurisdiction were not exercised.
Admittedly, the legal remedies open to foster-parents who are unhappy about a local authority's decision to remove a child from their care (subject to a care order) are not extensive. There are a number of possibilities, but the time limits attached to the first two meant that neither was open to the Bramleys):
n If the child has lived with them for at least three years, foster-parents may make an application under the Children Act for a residence order. If they do not satisfy the three-year residence condition, they must first obtain the consent of the local authority.
n They can apply for an adoption order - but, without local authority backing, the child/ren must have lived with them for 12 months or more.
n They can apply for an emergency protection order (EPO), which would prohibit the local authority from removing the child. An EPO would buy only eight days' grace.
n They can ask the Divisional Court for leave to proceed with a judicial review of the local authority decision.
It is also possible for foster-parents to follow the complaints procedure that local authorities have set up, or to ask the local authority to review its decision, and in both cases they can call on the authority to move quickly and to leave the child in their care in the meantime so that he or she has some stability.
But none of these will seem particularly appealing to foster-parents who are aggrieved by what they may well see as impenetrable decision- making by the social services department. Now that the drama of the Bramleys' bid for parental power is being played out within the safety of the High Court, it may be time to consider realistically whether we really want social workers to focus on the welfare of would-be adopters - or on the welfare of the children.
Pauline Fowler is a partner in the family department at Bates Wells & BraithwaiteReuse content