The Legal Framework
Under Section 31(1) of the Children Act 1989 (“CA1989”), the Court may, on the application of any local authority or authorised person, make an order placing a child into the care of or under the supervision of the designated local authority. The Court may only make such an order if it is satisfied that the child concerned is suffering, or is likely to suffer, significant harm; and that that harm is attributable to the care being given or likely to be given (if the order is not made) being not what it would be reasonable to expect a parent to provide or if the child is beyond parental control (CA1989, S31(2)). No such order can be made in respect of a child who has reached the age of 17, or 16 in the case of a child who is married (CA1989, S31(3)). Section 38 (1) and (2) of the CA1989 provides that where an application for such an order is adjourned, or the court gives a direction under S37(1), the court may make an interim care or supervision order if there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in S31(2).
Section 91 of the CA1989 provides that any care order, other than an interim care order shall continue in force until the child is 18, unless brought to an end earlier. In contrast, private law children orders cease to have effect when the child reaches the age of 16, unless the circumstances of the case are exceptional, when any order can remain in place until the child is 18.
Section 20 of the CA1989 places a duty on local authorities to provide accommodation for children in need within their area if there is no person with parental responsibility for the child, the child is lost or abandoned or the person caring for the child is prevented from providing the child with suitable accommodation or care. A person with parental responsibility for the child may object to accommodation being provided if they are able to provide it and may remove the child from the provided accommodation up until the child is 16 years of age; at which stage if the child agrees to accommodation from the local authority the person with parental responsibility cannot object.
Re Q was a recent High Court case, heard on the 28th February 2019, in which Mrs Justice Knowles considered age in relation to interim care orders. On the 15th February 2019, Mrs Justice Knowles made interim care orders in relation to 4 children, one of those being Q. Q at the time was 16 but was due to turn 17 very shortly after the current hearing. The question was whether the court has jurisdiction and whether the order could subsist after Q’s birthday.
The present case considered case law in the form of:
- A (Wardship: 17-Year Old: Section 20 Accommodation)  EWHC 1121 (Fam) in which Mr Justice Williams considered that there was no provision for interim care orders to cease upon a child reaching 17 years of age and instead considered the only event that applied to A to cease such an order was disposal of the application.
- Re M (Jurisdiction: Wardship)  EWCA Civ 937 in which McFarlane LJ stated that there is no jurisdiction under the CA1989 to make a final care order in respect of a child who has reached 17 and that that provision should also apply to interim orders, as much as it did final orders.
- Gillick v West Norfolk and Wisbech Area Health Authority and Another  1 AC 112 which made it clear that the older a child got, the less likely it became that orders would be made in which he or she did not agree.
In reaching her decision, Mrs Justice Knowles found it “highly pertinent” (para 23) that a child is defined under the CA1989 as any person under the age of 18 but that Parliament had specifically chosen to curtail the court’s jurisdiction to make final care/supervision orders in respect of a child who is 17 and that it is a downward revision to 16, if the child is married. Further, the CA1989 recognises 16 as being an age of developing autonomy as private law orders can only be made in exceptional circumstances after that age and also, a child can consent to local authority accommodation at that age, even if somebody with parental responsibility objects. In addition, a child of 16 or 17 who lacks capacity is capable of being subject to powers exercised under the Mental Capacity Act 2005.
In concluding, Mrs Justice Knowles found that no interim care or supervision order will endure beyond the child’s 17th birthday or the date of a child’s marriage if 16 and made it clear that any orders made for a period during that time are impermissible. Further, that any orders previously extended past those dates should not have been, as there was no power to do so. However, proceedings must not always conclude upon a child turning 17 but there must be “careful scrutiny of the circumstances” as to whether it is proportionate and in the child’s welfare interests to continue. If discontinuance is a proportionate and welfare-driven outcome, the local authority should be permitted to withdraw its application. In the event that a child aged 17 or aged 16 and married is currently in the care of or under the supervision of a local authority, the order cannot stand and the local authority should look to provide accommodation and/or support by agreement.
In relation to Q, Mrs Justice Knowles’ conclusions meant the interim care order would cease to have effect on the day Q turned 17. A decision as to whether proceedings remained in respect of Q was reserved for a later case management hearing in which submissions would be heard on the merits of any continuation.
This case may have wide reaching implications but Mrs Justice Knowles’ ruling does make it clear that any interim or final care order cannot be granted after the child’s 17th birthday or date of marriage if aged 16. Furthermore, Local Authorities may need to look at the orders they currently have in place in order to ensure that the proper process is being followed in relation to such children and that the correct accommodation and/or support is being offered.
Specialist advice on care proceedings can be obtained from members of Becket Chambers – speak to the clerks for further information.
Cara Radford is a Pupil barrister in Becket Chambers, presently undertaking her first six pupillage.