As a general rule when the State intervenes in the family life of others it does so with the best of intentions.

The desire "to safeguard and promote" the welfare of children being looked after by the State is laudable.

The Children Act 1989 which embodies such an aspiration (at s 22(3)) has been in operation now for several years and it is time to begin to examine its impact in a critical way in order that we might improve the lot of those who have the misfortune to end up in the care of the State.

That there is room for improvement is beyond doubt.

The recent report of Sir William Utting (People Like Us) made for unhappy headlines.

One of the most thought provoking responses came from the former editor of The Independent newspaper Andreas Whittam Smith in an article entitled "If you're homeless or in jail, you probably grew up in care" (The Independent November 25, 1997 p 21).

After referring to the fact that 30 per cent of young people on the street or in other forms of precarious accommodation have been in care Whittam Smith states:"Young people who have been placed with foster families or in children's homes also account for a sizeable proportion of the prison population -- 23 per cent of adult prisoners and 38 per cent of young prisoners.

From 'care' to a life on the streets or in prison, those who make this passage truly are the excluded from society."What follows is a proposal regarding the decision-making process for a small but significant and growing minority of children in care.

It is argued that a court which makes a care order under s 31 of the Children Act 1989 should have to review its decision after 12 months or so in order to ascertain whether the care plan which it accepted and approved has been implemented.

This is of particular importance where the care plan is one of adoption and the denial of contact to the natural parents.

This should be seen as the State demonstrating a continued interest in the fate of the children concerned rather than a means for parents and other interested parties to participate in further judicial proceedings.

If, and only if, it is determined, as a result of the review, that the care plan cannot be implemented should the process involve the parents or other significant persons from whose care the child was originally removed.CHILDREN IN STATE CAREThe Department of Health statistics Children Looked After by Local Authorities year ending March 31, 1996 (A/F96/12) includes children in care by virtue of a care order.

Of the 51, 200 children in care 57 per cent (29,000) were the subject of care orders.

(This included "deemed" care orders under the transitional provisions of the Children Act 1989, Sch 14).

It was the 1989 Act which introduced the notion of care plans (Children Act 1989 Guidance and Regulations Volume 3, Family Placements para, 2.62).

It is clear that a more accurate picture in relation to care plans and their implementation requires one to look at more recent admissions to care (that is not "deemed" care orders).

Dealing with children "starting to be looked after" during the year to March 1996 the figure is 31,900 of which 2,800 were full care orders, 2,200 were interim care orders (Table K).

In 1996 there were 12,400 children who were subject of full care orders (not "deemed") and 4,700 subject to interim care orders.It is apparent that a care plan which involves the possibility of a permanent substitute family represents a small but growing proportion of those subjected to care orders.

The number of children placed for adoption has increased since information was first collated about ten years ago.

There are now five per cent of children who are described in this way (2,300 in 1996).

The figure in 1991 was only three per cent.

Such care plans almost invariably involve the local authority requesting leave to terminate contact between the child and the birth parent(s).

(Under s 34(4) of the Act).

A further indication of the trend is to consider the figures in relation to those children who ceased to be in care and the reasons for this.

In 1996, 1,710 children (again 5.41 per cent of the total) no longer featured in the statistics because of an adoption order or a freeing order having been made (Table 15).It is undoubtedly the case that in the majority of cases this will involve denial of face to face contact between the child and the natural parents.

This despite the existence of research which suggests the importance of maintaining links with the birth family in order to preserve the child's sense of identity and thereby enhance the prospects of a successful adoption.

(See Child Placements: Principles and Practice, 2nd edn, Professor June Thoburn, especially pages 37-39, 65 and 66).

It is a curious feature of such cases that social workers either do not know the findings of such research or else choose to ignore it because of its profound implications on the stated care plan.

The fact that a natural parent does not (or very often cannot) approve of the plan does not mean that in the fullness of time (that is after the conclusion of the proceedings) they would not accept the decision of the court.

In other words, failure to agree to the plan should not, as it so often is, be equated with a desire to disrupt any subsequent placement.There can be no greater interference with Art 8 of the European Convention on Human Rights (Right to Family Life) than to remove a child from its parents and decree that he or she should be brought up by others (often, at that point unspecified).

The importance of the care plan should not be underestimated.

It may, of course, be followed by an application to Free for Adoption (which enables a parent to argue that he is not unreasonably withholding his agreement to a proposed adoption) but by that stage the die is, almost invariably, cast.When a freeing order has been made but no adoption order is sought or granted then the child (unless rehabilitation is possible) is in a form of "limbo" see Re G (Adoption: Freeing Order) [1996] 2 FLR 398 CAThis is described as a "lacuna" in the legislation; it is also poor child care.RIGHTS OF APPEALThe impact of changed rules regarding appeals in Children Act cases should be recognised as contributing to a picture which, it is submitted is unhelpful and which may be adjudged in time to be at odds with the European Convention and more particularly the "United Nations Convention on the Rights of the Child 1989" (Ratified January 1992) which it is submitted is bound to assume greater importance when the ECHR is incorporated into domestic law.

The law on rights of appeal was changed retrospectively and has had a dramatic effect on the number of appeals to the Court of Appeal.

(As yet it is still possible to appeal without leave from the justices to the High Court under s 94 of the Children Act 1989).The effect of the rule change introduced in October 1995 (SI 1995 No 2206) places added stress on the initial decision to approve a care plan.

The choice available to a court is simple -- it can approve the care plan or not (Re J (Minors) Care Plan) [1994] 1 FLR 253, Re S and D (Children: Powers of Court) [1995] 2 FLR 456 CA).The court is not able to use its disapproval of the care plan as a means of control over the case and overriding the discretion which is vested in the local authority.

The law on the issue of the care plan and the tribunal's reaction to it is, of course, founded upon the case of A v Liverpool City Council [1982] AC 363.

This was a wardship case; it made clear that the High Court exercising its power in wardship could not interfere in the day-to-day decision making of the local authority (see also Re W [1985] 2 FLR 879).

There is surely, however, a fundamental difference between attempting to influence and /or control the day-to-day activities of a local authority and a judicial review of a decision which is of monumental (and probably unsurpassed) importance in the life of a particular child.It may be necessary for the State to intervene to protect a child and to make alternative arrangements for his or her care.

This is recognised in Art 8 of the ECHR which states:Article 8"1 Everyone has the right to respect for his private and family life, his home and his correspondence.2 There shall be no interference by a public authority with the exercise of this right except as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others".In addition, Art 9 of the United Nations Convention on the Rights of the Child 1989 states as follows;Article 9(1)"State parties shall ensure that a child shall not be separated from his or her parents against their will, except where competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.

Such determin ation may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence."(Source: The UN Convention and Children's Rights in the UK, Peter Newall).As above, the present fashion in social work is to favour in theory contact post adoption but the situation, in reality, it is suggested, is very different.

How does the argument that the proposed adopters ".

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will not accept post adoption contact" sit with this article of the Convention.

The truth is that it doesn't.

The argument would no doubt run as follows:-- We (the Local authority) decided this child can't live with his parents (a decision approved of by the court).-- Adoption is in his best interests.-- The only adopters we can find will not accept contact hence because of 2 above -- denial of face to face contact is also in his best interests.This argument is circular, false and ultimately self-justifying.

Unless and until local authorities and others alter their approach to prospective adopters (for example, by making it clear that only adopters willing to consider post adoption contact will be considered appropriate and placed on the adoption panel) nothing will change.Article 9(3) of the Convention provides for the child to maintain "personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests".There will, of course, always be cases where post adoption contact would be "contrary to the child's best interests".

It is not difficult to imagine such cases.

This I believe is the minority of cases.

Nonetheless, the fact remains that the current system invariably assumes that contact between the child and the natural family will cease.

However, even where local authorities indicate that "attempts will be made to secure an adoption which permits face to face contact for the natural parent" how is a judge to know that in reality that is what has occurred? The fact is that under the present system there is no way the court can know the reality.

The local authority under the heading of "contingency plan" have to indicate what is envisaged in the event of a placement breakdown.

This often involves one line/one sentence such as "an alternative adoption placement would be sought".

The situation is more acute where the application for a care order is accompanied by an application for an order terminating contact and an order freeing for adoption all heard at the same time.This is one of the reasons why it is suggested that a system of post care order review is desirable.

Why shouldn't the State have the duty to inquire as to the implementation or otherwise of the care plan? This has nothing to do with "day-to-day" activities of the local authority; it has everything to do with the State's responsibilities for those whose lives are dramatically altered by decisions taken on its behalf.How many children removed from parents with a care plan of adoption are subsequently successfully placed? The answer is not found in the statistics to which I have referred and, so far as I know, is not to be found in any other state statistics.

How many such placements fail? According to "Patterns and Outcomes in Child Placement" HMSO 24 per cent of single child adoptive placements for children described as "special need" did not succeed (quoting research by Thoburn and Rowe).

What happens to these children? Do they become the casualties of the system and go on to provide t he State with the next generation of "failed parents?" Too often, in practice, the answer appears to be yes.

It is not simply those children in residential care that have been let down.

Is it "good enough" parenting to remove a child from one set of unsatisfactory circumstances and to place him or her in a different situation about which one knows little or nothing? Worse still is it good enough parenting if no inquiry is made as to the subsequent progress of the plans regarding the child in care? The fact is that a good number of care plans contain proposals which, it is suggested, reflect the hopes of the local authority concerned rather than the expectation.THE PROPOSED REVIEWThere should be a statutory obligation placed on local authorities to make the court which made the original care order aware of the child's progress under that care plan.

If what was envisaged at the time the order was made has not occurred then the court should be empowered to ask why not? If it is (or becomes) clear that the initial care plan cannot be effected the court should have the power to give further directions which could include a direction that there should be a reconsideration of the role of the natural parents.

In other words this route into care (that is, permanent substitute care) should provide for a reconsideration if the preferred option cannot be achieved within a reasonable time.Anyone with extensive experience of these cases knows that in a not insignificant number the child will sooner or later gravitate back to their family of origin.

What is proposed therefore does not involve an automatic right by the birth parents for a review but rather a two stage process which will not disturb the original decision unless or until a court is of the view that the care plan cannot be achieved.

It should not be forgotten that Art 8 of the Convention on the Rights of the Child states as follows;"1.

States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference."If the State demonstrated its continued concern in this way then maybe the children in its care might begin to receive a better deal.

It would certainly enable those responsible for difficult decisions to be better informed and have the opportunity of knowing what exactly happens following its determinations.

The decisions may be those of the judge or justices but the responsibility rests ultimately with the State.

It is all too easy to forget that the State means you and me.