Section 91 of the Children Act 1989 says this
(1)The making of a child arrangements order with respect to the living arrangements of a child who is the subject of a care order discharges the care order.
(2)The making of a care order with respect to a child who is the subject of any section 8 order discharges that order.
(A child arrangements order with respect to living arrangements – residence in old money, ‘custody’ in Daily Mail/Eastenders parlance is a section 8 order)
So in plain language – if you have a residence order and you then make a care order, the residence order is discharged. If you have a care order and you make a residence order, the care order is discharged. If one exists, the other dissolves into nothingness. You can either have your cake, or you can eat it – you can’t both eat it and have it.
There is no Schroedinger’s Cat scenario where the child arrangements order and care order simultaneously exist *
(*theoretically this is POSSIBLE, but only in a universe where it is possible for a Judge to announce that there is a care order at exactly the same pico second as announcing there is a child arrangements order so they are both birthed at exactly the same instant and thus neither one of them predates the other or succeeds the other and thus neither one cancels the other out. It will not astound you to know that the Court in this case did not manage to achieve pico second delivery of a decision. )
(a) surprising that the Magistrates in this case made both a Care Order AND a child arrangements order
(b) not surprising that they were appealed
(c) blindingly obvious that the appeal was successful
This is such an obvious interpretation of section 91 that it is more than a little surprising that anyone even tried to defend the position, but such is sometimes the role of a lawyer instructed to oppose an appeal.
It was an attempt, based on the wording of section 9
9(1)No court shall make any section 8 order, other than a child arrangements order to which subsection (6B) applies, with respect to a child who is in the care of a local authority.
(section 6B being a live with order, or residence in old money)
Aha, argues dad’s lawyer, section 9 says that the Court CAN make a lives with child arrangements order whilst there’s a care order.
And indeed it can, and this is something that does happen.
You just then go to section 91 to see what the effect of that is, that the care order then dissolves. You can’t have both at the same time. Can’t eat your cake and have it. One or the other.
A large part of me just thinks that this appeal is blindingly obvious and that nobody needed to know the answer to this question, because the Act is so clear, but obviously I’m wrong because the error was made. Hopefully nobody will do it again.
Re X and Y (appeal against care order) 2018
(I note also that whichever Judge heard this appeal from the Magistrates and published it, they didn’t choose to identify themselves…)
- Mr Powell argues that s 9 of the Children Act 1989 including the explanatory notes, makes no reference to s 91 impacting on its operation, and that s 9 does not say it is subject to s 91. He argues that s 9 (1) permits the two orders to sit alongside each other, as its terms are unambiguous and it carves out an exception to s 91. He points out that there is no explanatory note in the Family Court Practice 2018 that deals with this matter. He argues that the context of where s 9 sits in the scheme of the Children Act 1989 is important, as it is that it appears under the heading ‘Restrictions on making section 8 orders.’ Mr Powell argues: why have that if it is not to carve out an exception? He argues that this was a deliberate attempt by the legislature to carve out an exception to the general rule under the Children Act.
- Mr Laing supports the appeal. In his written submissions, he sets out the legal framework. I agree with his reasoning, both as to the correct statutory interpretation and its effect. It is a reading that is supported by the authors of Hershman and McFarlane and Clarke, Hall & Morrison . Mr Laing correctly sets out that: the only form of child arrangements order that can be made where a care order is in force is a “lives with” child arrangements order (s 9 (1) and (6B) of the Children Act 1989); the making of a “lives with” child arrangements order discharges a care order (s 91 (1)); and, the making of a care order discharges a “lives with” child arrangements order (s 91 (2)).
- Mr Laing also draws my attention to the ruling of in Booth J Hounslow Borough Council v A  1 FLR 702, where it was held,
“ A care order itself automatically discharges any residence order that might be existing in respect of the child at the time the order is made. As Miss Hudson submitted before me, a residence order and a care order are two orders which are incompatible. They cannot both stand together. A residence order is clearly inconsistent with a care order and vice versa” , at 706 .
- Mr Laing argues that the position has been the same since s 91 of the Children Act 1989 first came into force on 14 October 1991, and has remained the case throughout the eight iterations of section 91 since then.
- Mr Laing submits that there are good public policy reasons for that. [Generally], no order under s 8 of the Children Act 1989 can stand alongside a care order for a simple reason: once a care order is made, it is not for a court to interfere with a local authority’s exercise of parental responsibility, save for as permitted within the framework of public law proceedings.
- I agree. I find that, in error, the lay justices conflated the jurisdiction they had to make a “lives with” child arrangements order with the effect of the making of that order. Whilst they had jurisdiction to make the order, the effect is to discharge the care order, which they clearly did not intend.
- Their decision was therefore wrong. I allow the appeal and set aside para 16.2, i.e. the “lives with” component of the order d. 22 June 2018.