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.
An appeal against a care order must be made within 21 days.If instead of an appeal could an application for a residence order be made way out of time since it would not be an appeal against the original decision but would be a variation of it ?
I cant see any legal reason why not. Although then you’d be saying the order and decision weren’t wrong and you would need to show a reason for making a different order so soon afterwards. So it might be a weaker case. Also doesn’t work for adoption cases because the placement order is unaffected. There’s a weird thing where a care order is a shadow order which only revives if placement order is revoked.
This is actually similar to a case I am dealing with at the moment. Long story short:
*CAO in favour of Dad; defined contact order for Mum.
*Agreed plan until 2025 (yes, seriously!)
*If Mum wants to alter it before then, must attend mediation with Dad.
*Mummy was due to have her first Christmas contact Dec 2017; let’s just say, right before the contact, Mummy sort of messed up; LA rang Dad and said ‘Revert to the old order; no overnight allowed until further notice’
*LA contact me in the New Year and confirmed this is what Dad was told; even put it in writing.
Now the fun part. Mum filed a C100 (I was asked to do the C1A because she couldn’t be bothered) which was only 1/3 filled in. It was clear that a DJ was like ‘I am so sick of these two; give it to the Magistrates’. (Mum refused to engage with mediation.)
My client (Dad) asked me to file a C2; grounds? First to get the ‘old’ contact order made into a proper written order and for a 91(14) The judge last time was ‘I want to give you one but it is so draconian, let’s give peace a chance’. We actually have a letter from the LA supporting Dad that if Mummy ‘tries it on again’ (child is 5 and has had about 10 proceedings; including prebirth assessments of Mummy) he can have his 91(14) until 2025.
Court last week; of course the Magistrates were out of their depth. ‘Think we need a DJ for this’. (They clearly were masters of the bleeding obvious)
So we are back in court next week….because you know, no one has nothing to do better with their time.
~The only order at this time is that it be ‘bumped’ to a DJ; that perhaps a Guardian needs to be appointed, yes, currently, LA recommended contact arrangements stay in place until further notice, DJ to decide about whether it needs a Section 7 or 47.
Mummy is on paper a right piece of work.
Sitting in court my impression of what was being said was ‘These two need their heads banging together.’ It is very clear that the child is best off in the primary care of Dad and he is not against contact. The court just needs to decide how much contact Mummy gets’.
Needless to say, I will print out the above and full ruling to digest on my 6 hours each way train ride.
Thanks for the timely heads up.
I pushed the court for residency with a full care order 2016, and got it
So if the CAO includes PR, and subsequently a care order is made, does the care order cancel PR?
For a grandparent or other relative yes, but if a CAO is made to a father, the PR continues even if the CAO ends
So glad you highlighted this. I have case where ICO and CAO made at first hearing in care proceedings. I expressed view orders incompatible but no appeal lodged. Even though only interim orders sec 91 still applies. Have heard of few other similar cases and suspect public funding for kinship carers is the reason!
I suspect so. And there’s a bit in the Act that says apart from the threshold test all refs to Care Order also includes Interim Care Order
Suess; that was my sort of understanding of a highly convoluted situation. If my understanding is correct; in the example I cited above; the child is currently on a CAO in the primary care of Dad. If Mother does not comply with the recommendations of the LA, Court and potentially now the Guardian, then we are looking at a new kettle of fish. Have I got this correct?
In the case above; Mum has approx. 28 hours ‘contact’ per month; which she admits she only attends about 19-20. Father ensures regular updates about health, education, extra activities and hobbies and interests.
So has his ‘cross application’ with a C2 cancelled out his CAO/residency order?
I don’t think this authority helps, because at present you are in a private law situation. But if the LA issue OR court make S37 ICO all existing section 8 orders end
I wonder where the Legal Adviser was in this – and why nobody pointed this out to the justices at the time? I tend to think the Court should have more direct control over how an LA exercises its PR, but I appreciate that would require wholesale statutory reform!
SO ! All you mums who were told by the judge and your bent lawyers that you could not appeal the interim care order listen carefully ! Even if you are by now out of time (21 days) for an appeal you should apply for a residence order and so should your relations separately if they wanted to care for your child but were ignored by social workers !
Download form C100 and they cannot just dismiss your applicaton as “without merit” .Something that happens with most applications for” permission to appeal” these days !