Law Report: Procedure for making care order: Oldham Metropolitan Borough Council v E - Court of Appeal (Sir Donald Nicholls, Vice-Chancellor, Lord Justice Hirst and Lord Justice Waite), 9 March 1994

If, at the hearing of a local authority's application for a care order, there is a suitable carer within the child's family willing and able to give the child care, then the criteria for making a care order are not satisfied and the court has no jurisdiction to make an order.

The Court of Appeal allowed an appeal by E's aunt from an order by Judge Fawcus at Manchester County Court granting the council a care order.

E, aged 14 months, was placed in temporary short-term foster care because his mother, who suffers from mental and developmental problems, was unable to care for him. The mother's aunt was willing to take over the care of E and, supported by the mother, applied for a residence order.

The council took the view that the child's long-term welfare would be better served by adoption and applied for a care order and an order terminating the mother's access.

Lindsey Kushner QC and Julia Cheetham (Hills, Oldham) for the aunt; James Townend QC and Bernard Wallwork (Sharpe Pritchard for Borough Solicitor) for the council; Diana Eaglestone (Hinchcliffes, Oldham) for the mother; Lesley Anne Newton (Gibsons, Royton) for the guardian ad litem.

LORD JUSTICE WAITE said that it was agreed by all parties that if E were to be placed in the mother's care, he would suffer or be likely to suffer significant harm. In Re M (a minor) (Care order: significant harm) 1994 1 FLR 73 established that the 'threshold criteria' for making a care order under section 32(1) of the Children Act 1989 fell to be examined at the date of the hearing and that it was not enough to demonstrate that the person with parental responsibility for the child could not provide the required degree of care and safety: if at the hearing date, there was available some suitable carer within the family willing and able to give the child care to a reasonable parental standard, it was impossible to say that the criteria for a public law order were satisfied.

Emphasis was given to kinship. It might, however, be necessary in future cases to consider whether the same principle was capable of being extended to instances where, for example, suitable alternative care could not be provided from among the members of the extended family, but some reliable third party who was not related could provide care of the necessary calibre.

In cases where a local authority was applying for the public law remedy of a care order and a relative was available to provide alternative care and was applying for a residence order, the judge was not bound to decide the residence application independently of, and prior to, any consideration of the question whether the threshold criteria for public law order were made out. The court was master of its own procedure and could adapt the order of consideration of applications.

In most cases the best course would be for the public and private law applications to be listed together and the evidence on both taken at the same time.

Some preliminary consideration would need to be given by the judge to the question whether the residence order applicant could be regarded as a suitable alternative carer before effective consideration could be given to the threshold questions.

A local authority, once it had started care proceedings, could not discontinue them without leave of the court, and other parties might be heard to object to such leave being granted.

No withdrawal application had yet been made in this case, and, although the council conceded the lack of jurisdiction to make a care order, it would be wrong to dismiss the care proceedings at this stage.

Both proceedings must be remitted for hearing by a High Court judge. The council must, within seven days, give notice of whether it proposed to apply to withdraw the care proceedings.

Lord Justice Hirst and Sir Donald Nicholls V-C agreed.