In public law proceedings, where the final care plan is for a child to remain at home with their parent(s), should the court make a care or supervision order?

The court allowed this appeal, making supervision orders in place of care orders for the children who are placed at home. The court addressed the fact that this issue was being approached differently based on whether the court was North or West, or South or East, of an imaginary line between Hull and Bristol.

Practitioners will be familiar with the 2021 Public Law Working Group (‘PLWG’) Guidance. The President of the Family Division Sir Andrew McFarlane’s judgment in JW (Child at Home under Care Order) [2023] EWCA Civ 944 puts that guidance on a footing with the caselaw and clarifies that, in a case where the risk is slow burning and the plan for monitoring and support is the same under either a care or supervision order, and where any attempt to remove the child would be likely to lead to further court proceedings in any event, there is nothing that making a care order would add to the local authority’s ability to provide protection. 

Sir Andrew McFarlane said at paragraph [55]: “There needs to be a common approach throughout England and throughout Wales. What that common approach should be has been determined through consultation and discussion by the multidisciplinary membership of the PLWG. The recommendations at paragraphs 158 to 162, and the Best Practice Guidance at paragraphs 34 to 37, of the PLWG March 2021 report, and Appendix C of the April 2023 report on supervision orders, which have already had extra-curial endorsement, I now formally endorse in a judgment of this court. They must be applied in all cases.”

Facts

The case concerned three children whose mother married a ‘Mr P’ in 2021. After they were married, social services informed the mother that Mr P had a conviction for possessing a large number of indecent images of children, and was prohibited from having unsupervised contact with children.

While the mother initially agreed that Mr P should move out, the local authority became concerned that she was not adhering to the safety plan, and that they were having unauthorised contact with Mr P. The mother’s engagement with the local authority was sporadic, and at times she prevented social work visits and did not allow the children to speak to professionals. She began threatening to move Mr P back into the family home.

The local authority brought care proceedings. The children remained at home with the mother under an Interim Supervision Order. An expert psychologist concluded that Mr P posed a significant risk, and recommended that the mother cut all ties with him. The mother decided to end the marriage and sever some connections with Mr P, but did remain in contact with him to some extent. At the conclusion of proceedings, the mother had not yet started rehabilitative work.

At the final hearing, HHJ Harris-Jenkins made final care orders in respect of the three children, with the care plan for them to remain at home. The judge felt that the need for the local authority to share parental responsibility with the mother was decisive and that the safeguarding features of a care order were required. The judge commented that under a care order, the local authority would be able to ‘take the whip hand’ if there was such a need.

The mother appealed this decision.

Grounds of appeal

(1) the court was wrong to make final care orders instead of final supervision orders in circumstances where the care plans were for the children to remain at home with their mother.

(2) alternatively, in the event that the court had considered that more time was required for the mother to evidence the ending of the relationship with Mr P and/or her commitment to he proposed work , the court was wrong not to adjourn the final hearing and extend the proceedings.

What did the court decide?

Ground (1): the court was wrong to make final care orders instead of final supervision orders in circumstances where the care plans were for the children to remain at home with their mother.

Appeal allowed. Where the risk is slow burning, where the support is going to be the same regardless of which order is made, and where there will be a need for court proceedings to remove the child from the home under either order, there is nothing that making a care order would add to the local authority’s ability to provide protection. The court substituted supervision orders. (Para [73])

HHJ Harris-Jenkins at first instance was clear that a significant part of the decision was the fact that a care order had more ‘safeguarding features’, and that the local authority would be able to ‘take the whip hand’ if concerns were raised. It was not explicitly considered whether ‘taking the whip hand’ would mean that the local authority could remove the children from the mother’s care immediately.

The Court of Appeal made particular reference to, and endorsed, the case of Re DE (Child under Care Order: Injunction under Human Rights Act 1998) [2014] EWFC 6; [2018] 1 FLR 1001, which established that, if a local authority intends to use its power under a care order to remove a child from their home, in all but a true emergency notice should be given to the parents to allow them to restore the matter to court, either by applying for an injunction or to discharge the care order. As such, whether a supervision or care order had been made in this case, if a situation were to arise where the local authority felt there was a need to remove the children, that decision would likely require court oversight in any event.  

The local authority had also made clear that they would be offering the same support whichever order the court made. It has been made clear that a care order should not be used to ensure that a local authority performs its statutory duties or deploys resources in a certain way.

The Court of Appeal gave a summary of the development of the law at paragraph [28] of the judgment:

1. “making a care order with a subject child placed at home in the care of their parent(s) is plainly permissible within the statutory scheme and express provision is made for such circumstances in CA 1989, s 22C and in the placement regulations;
2. the early post-CA 1989 authorities established that a care plan for placement at home was an appropriate outcome where the facts justified it, without the need for exceptional circumstances;
3. the analysis of Hale J/LJ in Oxfordshire and in Re O laid particular weight upon the need for the authority to have power to remove the child instantly if circumstances required it, or to plan for the child to be placed outside the family;
4. since Oxfordshire and Re O, the High Court decision in Re DE, containing guidance endorsed by the President, has been widely accepted so that, in all but a true emergency, the local authority power to remove a child from their home under a care order should not be exercised without giving parents an opportunity to bring the issue before a court;
5. the difference concerning removal of a child from home either under a care order or where there is no care order is now largely procedural. In all but the most urgent cases, the decision on removal will ultimately be taken within the umbrella of court proceedings, rather than administratively within a local authority;
6. sharing of parental responsibility by the local authority with parents is an important element, but, as Hale J/LJ stressed, the fact that considerable help and advice may be needed over a prolonged period is not a reason, in itself, for making a care order;
7. it is wrong to make a care order in order to impose duties on a local authority or use it to encourage them to perform the duties that they have to a child in need;
8. the protection of the child is the decisive factor, but proportionality is key when making the choice between a care and supervision order for a child who is placed at home;
9. supervision orders should be made to work, where that is the proportionate form of order to make.”

The court also distilled the PLWG Guidance and recommendations to five short points at paragraph [66] of the judgment:

1. “a care order should not be used solely as a vehicle to achieve the provision of support and services after the conclusion of proceedings
2. a care order on the basis that the child will be living at home should only be made when there are exceptional reasons for doing so. It should be rare in the extreme that the risks of significant harm to a child are judged to be sufficient to merit the making of a care order but, nevertheless, as risks that can be managed with the child remaining in the care of parents;
3. unless, in an exceptional case, a care order is necessary for the protection of the child, some other means of providing support and services must be used;
4. where a child is to be placed at home, the making of a supervision order to support reunification may be proportionate;
5. where a supervision order is being considered, the best practice guidance in the PLWG April 2023 report must be applied. In particular the court should require the local authority to have a Supervision Support Plan in place.”

Ground of appeal (2): alternatively, in the event that the court had considered that more time was required for the mother to evidence the ending of the relationship with Mr P and/or her commitment to the proposed work , the court was wrong not to adjourn the final hearing and extend the proceedings.

Appeal dismissed. The judge felt that adjourning the matter would have been for an open-ended period for the mother to complete the protection enhancement course and to demonstrate to the court a period of total separation from Mr P. He did not feel that extension of the 26-week timetable on such a basis would be justified. (Para [75])

Conclusion

This judgment is a formal endorsement of the PLWG recommendations and Best Practice Guidance, and the court made it expressly clear that that guidance must be applied in all cases. This will hopefully offer more certainty and lead to a uniform approach when courts are considering whether to make care or supervision orders where children are to remain at home.