A court may only make either a care order or supervision order if the “threshold criteria” at s 31(2) Children Act 1989 are satisfied, namely:-
(a) that the child is suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood of harm, is attributable to-
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent give him; or
(ii) the child’s being beyond parental control.
The court may, on an application for a care order, make a supervision order and, vice versa, on an application for supervision it may make a care order – Children Act 1989 s 31(5).
My experience from early in my practice in the 1990s was that care proceedings were quite commonly concluded with children living with their parents, placed under final care orders.
This is an outcome that has long since ceased to be one that I encounter.
Nowadays, at least in Kent where I principally practice, when care proceedings are concluded upon the basis that children will live with parents, whether having remained at home during the proceedings or having been transitioned back home following earlier removal, this is invariably upon the basis that the arrangement will be either supported by a supervision order or upon the basis that no public law public law order is required at all.
In a recent Court of Appeal case JW (Child at Home under Care Order) [2023] EWCA Civ 944 the President Sir Andrew McFarlane considered the issue of the children’s placements at home pursuant to care orders. In his experience there had for some time been a marked difference between the approach of courts in the North and West and those in the South and East, the former often making care orders in such cases but the latter normally resolving them by way of supervision orders or no public law orders.
The case related to a situation frequently encountered in care proceedings. In short, the mother’s partner presented risks to her children (he was the subject of a Sexual Harm Prevention Order preventing him having unsupervised contact with children). Care proceedings were issued following concerns that the mother was not adhering to an agreed Safety Plan and that he was having unauthorised contact with her and the family.
The children remained at home with the mother during the proceedings upon the grant of interim supervision orders. At the final hearing the trial judge acceded to the Local Authority’s plan (supported by the Guardian) for the children to remain placed with the mother under care orders.
The mother appealed upon the basis that making a care order with the children at home was wrong, or that in the alternative the judge should have extended the proceedings to allow her ability to protect the children to become more established.
The grant of a care order, rather than the alternatives above, is of course a very significant matter.
Pursuant to s 33 (3) Children Act 1989, and unlike a supervision order, the grant of a care order invests parental responsibility in the Local Authority, which has the power (subject to subsection 4 which makes it clear that it should not be exercised unless necessary to safeguard and promote the child’s welfare) to determine the extent to which the parent may meet her own parental responsibility for the child.
When children are subject to care orders there are multiple other impositions and interferences with their upbringing which will be well-known to practitioners including review processes. The degree of interference arising from supervision orders is very much less.
When children are placed at home pursuant to care orders they are potentially at risk of being removed by the Local Authority, albeit it was established by Baker J (as he then was) in Re DE (Child Under Care Order : Injunction Under Human Rights Act 1998) [2014] EWFC 6 that in the absence of a true emergency, a Local Authority intending to use that power should provide the parent(s) with notice to allow them to bring the issue to court, either via an injunction application or an application to discharge the care order.
In JW the President reviewed some early authorities following the implementation of the 1989 Act in which the practice of granting final care orders on the basis of the child living at home was endorsed by the higher courts. E.g Re S [1993] 2 FCR 475 and Re T (Care or Supervision Order) [1994] 1 FLR 103.
In Oxfordshire County Council v L [1998] 1 FLR 70 Hale J (as she then was) suggested that there might be 3 possible reasons for making a care order on the basis that the child was to remain at home:-
- The authority needed the power to remove the child instantly if circumstances required, and also to plan for the child to be placed long-term outside the family;
- It was necessary for the authority to share parental responsibility with the parents; but the fact that considerable help and advice may be needed over a prolonged period was not in itself a reason for making a care order;
- It was necessary to place duties on the authority; but that it would be wrong to impose an order which was not in the interests of the child simply to encourage an authority to perform its statutory duties towards a child in need.
In Re O (Supervision Order) [2001] EWCA Civ 16 Hale LJ (as she had by then become) reiterated her approach in the Oxfordshire case above with additional reference to the need for intervention to be proportionate in order to meet the requirements of the European Convention on Human Rights and the Human Rights Act 1998.
The President’s judgement in JW quoted from The President’s Public Law Working Group’s Report published in March 2021 (Keehan J as Chair) which referred to those regional variations above, albeit clarity remained outstanding in respect of the reasons.
At para 159 it was emphasised that (echoing the principles enunciated by Hale LJ above) the making of care orders should not be used as a vehicle to achieve the provision of support and services after the conclusion of proceedings and that unless a care order is necessary for the protection of the child an alternative means/route should be made available to provide the support.
At para 160 it was stated that the making of a supervision order to support reunification of the family may be appropriate, albeit it was emphasised that they have the highest (20%) risk of breakdown and return to court for further proceedings within 5 years. In addition, that there are widespread professional concerns that supervision orders “lacked teeth” as well as significant regional variations in their use and variability in the provision of support services.
At para 161 it was stated that a final carer order should not be used as a method to end proceedings within the statutory 26 week timescales artificially to alleviate concerns that the children will be at continuing risk of harm. It was stated that “Any such order should only be made where the Local Authority can demonstrate that the assessment of any carer or Looked After Child meets the criteria of the Care Planning, Placement and Case Review (England) Regulations 2010. This provides that any such placement has to be approved by senior nominated officer, and can only be approved if, in all the circumstances, and taking into account the services to be provided by the responsible authority, the placement will safeguard and promote the child’s welfare and meet their needs.”
Appendix F of the Report set out “Best Practice Guidance” in cases where care orders are sought with a plan for the child be placed at home.
A number of the principles that I have already set out above were emphasised, including “the serious intervention by the State in the lives of the child and the parents in terms of their respective ECHR and Art 8 rights” that arise from care orders, and at paragraph 34 it was stated that “there should be exceptional reasons for the court to make a care order on the basis of such a plan”.
In JW the President contrasted those early cases after the implementation of the Act that I have referred to above to the current PLWG recommendations and Best Practice Guidance, including the need for “exceptional reasons”.
By the final hearing the mother had separated from her partner albeit there was still some contact between them (for example in respect of financial arrangements). The basis upon which the threshold criteria were satisfied was agreed. It was agreed that the children should remain in the mother’s care, and the only issue for the court was the legal basis upon which they should do so. The Local Authority’s initial application had been for interim supervision orders, but it was now seeking care orders (supported by the Guardian).
The trial judge granted final care orders which he determined to be necessary and proportionate, and which applying s 1 (5) Children Act 1989 he considered to be the least interventionist approach.
Having regard to the risk factors, including what he described as the mother’s “inordinate” delay in committing to severing ties with her partner, he determined that it would be premature to “reduce” the protection afforded to the family by any less order a care order. The word “reduce” is a note as the children had hitherto been the subject of interim supervision orders.
The judge afforded considerable credit to the mother, accepting that there is no suggestion that she had placed the children at risk of harm. He was satisfied that services to support the family could be operated under care or supervision orders, and indeed the Local Authority had indicated an intention to support the mother irrespective of the form of order made. However, he considered the need for the Local Authority to share parental responsibility with the mother to be decisive.
In his judgement the President referred to the different approach in the two halves of the country above and emphasised the need for a consistent approach. His expectation was that the PLWG report and the Best Practice Guidance above, which he saw as consistent with the case law that had emerged, would achieve that conformity.
On the facts of the matter including the protection that the mother had generally afforded to the children during the currency of the proceedings whilst the interim supervision orders were in force, supplemental protective factors resolved (including an injunction order and undertakings to control the mother’s partner’s contact with the family) and the Local Authority’s ability to support the family under either regime, the President found it difficult to understand why it was being suggested that the situation was exceptional or rare when compared to other families where children are placed at home with parents at the end of care proceedings.
The President noted that the judge had determined that the Local Authority might need to assert parental responsibility over the mother in the event of a falling down in the safeguarding position at any point but had not given consideration to the consequences that might arise in the event of the mother refusing to comply. Unless it was likely that immediate removal would be justified then, on the basis of Re DE the issue of removal would have to come back before the court. As such, it was difficult to understand just what additional power the judge was contemplating that a care order would provide to enable the Local Authority to maintain adherence to the safeguarding provisions and to the Local Authority’s ability to protect the children.
The President (Macur LJ and Coulson LJ agreeing) concluded that the judge was an error in holding that this case was exceptional and that a care order was the proportionate and necessary order to be made.
The second limb of the appeal regarding the question as to whether the proceeding might have been adjourned was dismissed on the basis that the adjournment would have been for an open-ended period, and that as such an extension to the 26 week timetable would not have been justified
Supervision orders were granted to replace the care orders, for a 1 year period from the date of the original hearing.
The conclusions that I draw from this case and the relevant legal principles that I have summarised above is that there still might be cases where care orders should be granted where children are to live at home, but only in exceptional circumstances.
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