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Court can EXTEND a Supervision Order after the original has run out

 

I disagree myself, but I’m not a High Court Judge, so my view doesn’t count.

For me, you extend something that currently exists, and if it no longer exists then you are applying for a new one not extending it.  You can extend the Victoria line, but you can’t extend Atlantis High Street.  You can extend Wayne Rooney’s contract at Manchester United, but you can’t extend Cristiano Ronaldo’s contract at Manchester United.  The word means ‘to add to something to make it bigger or longer’  or rather, it means that in plain English, but it doesn’t in law.

Anyway, I’m wrong about that, because the High Court has ruled on it.  If you let your Supervision Order lapse and no longer have one, you can still make an application to extend it.

 

A Local Authority v D and Others 2016

 

http://www.bailii.org/ew/cases/EWHC/Fam/2016/1438.html

 

 

 

  • Having considered very carefully the very helpful skeleton argument of Mr. Lamb, which sets the case out, to my mind, conclusively, I am satisfied that the court’s power to extend a supervision order pursuant to Schedule 3, para.6(3) of the Children Act 1989 does not depend on the supervision order which is sought to be extended to be current or, for that matter, for an extension to have been made prior to the expiration of the existing supervision order.
  • In my judgment, an application to extend can be made properly after the supervision order has run out, so to speak, and there are, in my judgment, very good policy reasons why the statute should be interpreted in that way. These are set out in para.5.19 to 5.22 of Mr. Lamb’s skeleton argument. As he rightly says, supervision orders are entirely child-focused and will only be extended if it is in the child’s best interests. There are practical benefits, as he rightly says, to local authorities and to parents of an interpretation of the statutory words, which would enable the local authority to monitor the children’s progress whilst the supervision order has not run out without the need to rush back to court, and he rightly says, in para.5.21, the three-year limit to the extension of a Supervision Order prevents families having a sense of lingering uncertainty. So there are strong policy reasons for reading down of the words of the statute to permit the application to be made after the order has run out. Indeed, there is nothing in para 6(3) to suggest to the contrary.

 

 

So I am of the clear view, following the line taken by the President in Re X [2014] EWHC 3135, which was concerned with the seemingly unextendable term of six months referred to in s.51(1)(c) of the Human Fertilisation and Embryology Act 2008, that that should be read down in a way which is consistent with the interests of children as well as human rights. So following that line I reach the clear conclusion that I do and, in so doing, I am conscious that I am making a decision at variance with the obiter dictum of Lord Justice Thorpe in the decision of T v Wakefield Metropolitan District Council [2008] EWCA Civ 199, where, at para.20, he, in giving his guidance, was clearly of the view (although the point that I have to decide had not been argued before him in any depth) that the application for extension in fact had to be not only issued before the expiration of a current order but heard before the expiration of a current order. I have to say that I do not agree with that approach in the slightest.

 

(I am with Thorpe LJ on this, but as I’ve said, my view doesn’t matter a jot. Words now mean exactly what Judges choose that they mean neither more nor less, a la Humpty Dumpty. Apologies to those who have ever practised law in Birmingham, for whom the Humpty Dumpty metaphor might well bring about an episode of Post-Traumatic Stress, if they have had the ‘treatment’ )

 

Neither the King's Men nor the King's Horses are excluded from the pool of perpetrators

Neither the King’s Men nor the King’s Horses are excluded from the pool of perpetrators

 

I’m also grumpy because Mostyn J uses the same magic trick that the President used when he ‘interpreted’ s54(3) of the HFEA 2008 “the applicants must apply for the order during the period of 6 months beginning with the day on which the child is born.”  to mean that they didn’t. Presumably rewriting the word ‘must’ in the statute to mean ‘can, but it’s not like they HAVE to, or anything’  and I didn’t like that decision either.

In the normal run of events, not much is going to turn on whether a Local Authority who want a new Supervision Order after the first one ran out have to apply for a fresh Supervision Order (though they have to reprove threshold there) or extend it (where they DON’T have to reprove threshold, the existence of the previous one is sufficient).  It saves the LA a few quid in the issue fee, the Order gets made or doesn’t get made, no big deal.

Although if a Local Authority obtain a Supervision Order on a 1 year old, and that lapses when the child is 2, Mostyn J’s decision here means that the LA CAN apply to extend that Supervision Order when the child is 11.  And they won’t have to demonstrate that threshold is proven, because you don’t need to do that for an extension. If they made a FRESH application, 10 years after the original threshold was found, they’d have to prove that threshold was met – they could point to the 10 year old threshold, but it wouldn’t be determinative.  Of course, the LA in EITHER scenario might have a hard job persuading the Court of the NEED for an order…

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

9 responses

  1. This just doesn’t make sense – I’m with you Andrew, not Mostyn. I have had a case where a LA allowed a SO to lapse before reapplying. The threshold had been pretty marginal and my client did not accept it continued to be crossed – so it really did matter. There was very limited evidence on which to reprove threshold so the LA gave up and went away.

    I’d add to your point about coming back when a child is 11 – don’t forget that on applying for a supervision order under s31 the court can substitute a care order (s31(5)) so it’s even more concerning. This doesn’t sit v well with Hedley’s tolerance of a diverse range of parenting approach to threshold does it? It can’t be proportionate to deem threshold to continue to be crossed long after an order has lapsed. The problem with this judgment is that whilst on the facts the lapse was de minimis, it applies logically to case where the gap in time is large and circumstances may be materially different.

    Also, how does this sit w/ Sch 3 Part II Pa 6(4) which says a supervision order may not be extended so as to run beyond the end of the period of three years beginning with the date on which it was made? Perhaps that’s the answer…it would prevent the gap being more than 2 years in practice.

    Rushing to do other things, so may be talking rot as I am typing in haste! Those are my “off the top of my head” reactions…

    • Oh Good! It isn’t just me that was left scratching my head at this one! I have experienced one (ironically 11 years ago) that ‘threshold was marginal’ and Judge pretty much said to Mother ‘If I make a supervision order of 6 months, will you just take it and let the matter drop?’ Mother agreed. (Mother had refused to accept threshold)

      Supervision Order ended. (With two 10 minute phones in the 6 months.) Mother (thinking she was dotting the I’s and crossing the T’s) rang the LA to ask for a ‘case closed letter.; mistake! New manager got the file out and realised there had been no ‘supervision’. New manager came to visit Mother ‘Well, I don’t have any concerns but because we haven’t actually done anything, I am extending it by 3 months.’ Mother just went along with it. (The idea that a court would have to agree this never came up.) So, once two 15 minutes of ‘supervision’ had taken place over 12 weeks, Manager wrote to Mother and said ‘Case Closed’.

      Fast forward 11 years….’The LA rely on the ‘threshold of 11 years ago.’ LA would not go away.
      TC

  2. “Provided, however, that an application is made prior to the term of the periodical payments ending, the fact that it is heard after the end of the term does not affect the court’s power to extend it”. I always thought those words in Jones v Jones [2000] 2 FLR 307 meant what they say. Like you, I’m neither a High Court judge nor Humpty Dumpty, so I can’t say the opposite and it becomes true.

    • Yes, surely at the very least the APPLICATION to extend must come whilst there is still something to be extended. I can’t see why the High Court even felt it was worth bending the English language for this – just make the LA make a fresh application.

  3. I am was just coming off the Ketamine due to the political tomfoolery within past week, looks like I need up my dosage given the judicial patriarchs are carrying on with the same.

    I am not sure this has been thought out well at all, where would it stop, Supervision orders are quite paper towel-ish, and they can absorb a lot of detail but it stops short of any meaningful powers for local authorities, much like Child Arrangement Orders.

    I have lost count the number of judges who were scornful towards Local Authorities who held Supervision Orders when they failed to act within their spirit.

    Now the suggestion one can be made indefinitely which is what I see reading between the lines, the reasons behind the need of a Supervision Order surely must be lost, and, if there needs to be extensions of them [with planning approval] then was the initial need for a Supervision Order the right course to take from the outset.

    • Does this ruling not potentially mean, children can remain at home, instead of removal into ‘the system’?
      I agree a neverending option is a bad idea. But 3 years maximum and an LA ‘case closed’ letter at the end, can only be a good thing…. right?
      I’d say if LAs are viewed by the courts as not “doing what is required” by this order, then it should be discharged. After all LAs use SOs as a way of “befriending and supporting” the family. If these things aren’t happening, then the SO becomes irrelevant, in effect and must be discharged??

  4. I am not sure about this part of your analysis “Although if a Local Authority obtain a Supervision Order on a 1 year old, and that lapses when the child is 2, Mostyn J’s decision here means that the LA CAN apply to extend that Supervision Order when the child is 11”

    Looking at p2 “There are practical benefits, as he rightly says, to local authorities and to parents of an interpretation of the statutory words, which would enable the local authority to monitor the children’s progress whilst the supervision order has not run out without the need to rush back to court, and he rightly says, in para.5.21, [B]the three-year limit[/B] to the extension of a Supervision Order prevents families having a sense of lingering uncertainty.”

    I think that Mostyn J is saying (badly and whilst unsettling nearly 30 years or practice) is that you can apply to renew a SO within a period of three years of the making of the first order.

    It would be helpful to see Mr Lamb’s skeleton, it would also be helpful for the COA to weigh in!

    • He might have had that in mind, but there’s nothing in the Act that says that the maximum duration of Supervision Orders (each max 1 year, maximum of 3 in all) have to be continuous. So you could have the first one when the child is 1, come back aged 10 for the 2nd one, come back aged 14 for the 3rd one…

      I agree that a judgment that can’t be understood without the skeleton it refers to really ought to publish the skeleton as well.

  5. ashamedtobebritish

    I wouldn’t have this, not at all.

    If it’s run out, it’s run out, there’s nothing there to ‘extend’

    If the la want to extend then they need to apply before it ends (in which case I’d argue that you cannot apply for something already in place, hehe, sorry la’s all over, been there, done that)

    The judges will have to state that they are making a SO then give the la strict instruction to return on a certain date to review for renewal or drop it, it’s not rocket science.

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