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Melanie Carew and Daîne Dyer
The fanfare that accompanied the initial decision of the Court of Appeal in Re W and B; Re W (Care Plan)  EWCA Civ 757,  2 FLR 582 was not replicated when the government responded to the overturning of that decision by the House of Lords in Re S (Minors) (Care Order: Implementation of Care Plan); Re W (Minors) (Care Order: Adequacy of Care Plan)  UKHL 10,  1 FLR 815 by introducing the legal requirement for an independent reviewing officer (IRO) to be appointed for each looked after child. The Court of Appeal decision (now referred to as Re S and Re W) was seen as the court appointing itself as the monitor of the local authority and its responsibilities towards children in their care. The House of Lords confirmed that it was not for the court to take on that role; legislation was needed to create a formal monitoring of the corporate parent.
An amendment to s 26 of the Children Act 1989 (made by the Adoption and Children Act 2002) created a statutory duty to appoint an IRO to participate in case reviews, monitor the local authority's performance in reviews and to consider whether it would be appropriate to refer cases to Cafcass. The Children and Family Court Advisory and Support Service (Reviewed Case Referral) Regulations 2004, made under s 26 (above), extend the functions of Cafcass so that on a referral from an IRO it can consider bringing proceedings for breaches of the child's human rights, judicial review and other proceedings. It means that a Cafcass officer can be appointed in a case which is not before the court, may not involve a child who is subject to an order or proceedings and it is a role imposed on Cafcass officers not by the court but by an individual IRO.
To read the rest of this article, see July  Family Law journal.
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