A specific example, in private law, we can find ourselves drawn into an argument whereby the court appoints a guardian under 16.4. The Local Authority is ordered to undertake a s.37 report as to risk and, from that, the inevitable clash begins.
The Local Authority will assess risk and conclude proceedings or orders are not necessary and,for the most part, the guardian will agree. But what of those occasions when they do not? What are the court’s powers?
In short, the court has very little discretionary power. Under the Children Act 1989, there is no inherent jurisdiction of the court to impose a public law order on a local authority, without an application having already been placed before the court – although an interim order under section 37 can be achieved for the currency of the reporting process.
Unhelpfully, all the case law deals with orders sought or not sought within public law proceedings.
The starting point must be assessing the risk and the law around assessing that risk and proportionate response to risk (see Re F (a Child)  EWCA Civ 276). Whilst it has to be accepted that court can, as part of its own risk assessment, ask the local authority to reconsider its position Re T  EWCA Civ 650.
There is little more the court can do without a live application from a local authority. The force in this point is enhanced by a local authority, coming to the court, openly stating that it does not believe the threshold for such orders is met – Re a Local Authority v X, Y, and Z (permissions to Withdraw)  EWHC 3741 (Fam).
There are always pitfalls in such cases and a lot scope for public law issues to conflate issues of contact and child arrangements. Confidence in risk assessments and professional views must be maintained.
In these circumstances, Local Authorities should be robust as to what they can and cannot achieve. They must take stock of the court’s own heuristic risk assessment, views of other professionals and maintain, if appropriate their considered assessment of risk and why they feel a child’s best interests would not be met by such orders being made.
On the other hand, guardians need to maintain temperance in these circumstances. They also have to have an appreciation of context of such cases and understand that their involvement may have been limited to the currency of any proceedings.
Moreover, a local authority may well have lengthy involvement with a family long before the court embarks on this process. Re K (Supervision Orders)  2 FLR 303 FD – sets out that guardians should be careful not to upset the balance and should be careful not to usurp the court’s function.
There is a fine balancing act to undertake, safeguarding harm, responses that are proportionate to the risk and ensuring a child’s welfare needs are met. Ultimately, understanding that not every case requires and order and that risk is a fluid concept is central to any effective welfare plan.
Central Chambers has a family team with experience in representing applicants and respondents in public and private law cases of all complexities.
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