In the matter of M (A Child) V

Lord Justice Wall:

This is an interlocutory appeal concerning a little girl called K who was born on 28 June 2008.

I propose to say as little about the merits as possible given that K’s future is still before the courts and this court is dealing with one particular and discrete aspect of her welfare. It is common ground between the parties that K cannot at this stage live with her mother. Up until recently she has been accommodated with a specialist foster carer by the local authority with agreement from the mother, and an assessment as I understand it has been carried out with that foster carer as to whether or not mother is capable of caring for the child. For reasons which do not concern us and into which I do not propose to go, that assessment has come to end and the local authority is of the view that mother simply is not going to be able to care for this child.

Because the accommodation under section 20 as a child in need had come to an end, the local authority took care proceedings before the Justices, and before the Justices the position adopted by the guardian (which, I hasten to add, is a perfectly proper position for the guardian to adopt, indeed she seems to me to be eminently fulfilling her function by adopting it), the guardian took the view that the little girl should stay where she was pending the final determination. The Justices decided to retain the case and they gave directions designed to lead to a case management conference in January of next year. Clearly the matter can be dealt with more swiftly before the Justices than it can be dealt with in the county court. But there was a disagreement between the local authority in a broad sense and the mother and the guardian in that both mother and the guardian wanted K to stay where she was with her foster carer and the local authority’s care plan was for K to be moved to alternative local authority foster carers.

This point immediately raises a dilemma which has exercised the judiciary ever since the Children Act was implemented. Prior to the implementation of the 1989 Act, Parliament had left the power to dictate where a child should live with the court. The court could direct the local authority to place the child in a particular placement and the court retained control over the local authority’s action. All that was changed by the 1989 Act, and in the well known case of A v Liverpool City Council the House of Lords decided authoritatively that once a care order had been made, whether