Long term readers of the blog will be familiar with Betteridge’s Law – questions posed to which the answer is “no” – as much beloved by sub-editors at The Daily Express et al (Can Pomegranate Juice cure Cancer? Did the Ghost of Diana speak to Meghan? etc)
The heading of this blog post is a Betteridge’s Law question – the answer is no, but in this case it is helpful to have the answer.
[To the chagrin of our former President, I’m going to say “The High Court” when I mean “The Family Division of the Court, sitting in the High Court” because the latter is too much of a mouthful. ]
The question has been bubbling around since the 2014 Children and Families Act – that Act introduced the change in law that Interim Care Orders (which used to last for 8 weeks for the first order, and 28 days for each subsequent order, meaning lots of admin in long-running cases) could now last until the conclusion of the case or further order.
So in pre 2014, even if the Court made an interim care order at just before the child’s 17th birthday, the ICO would run out at most 2 months later. Whereas now, technically, it could run right up to the child’s 18th birthday.
It is settled law that the Court can’t MAKE a CARE ORDER for someone who is over the age of 17 (or, if they are married, over the age of 16) but it hasn’t been clear whether that also prohibited an Interim Care Order. [The Care Order can LAST until their 18th birthday, but you can’t MAKE one on a child who has passed the age of 17]
Section 31 (3) Children Act 1989 No care or supervision order may be made with respect to a child who has reached the age of seventeen (or sixteen in the case of a child who is married).
So the theoretical argument went
I can’t make a CARE ORDER on a child who is 17, but if I can make an INTERIM CARE ORDER then that can last until the end of proceedings, which will suffice.
If I had a pound for every time someone had asked me if that was okay, I would not have zero pounds.
I’ve always said “No, because section 31 (11) says that for the purposes of the Children Act, any reference to a Care Order ALSO means an interim care order, unless the reference specifically excludes that”
And if they persist
“Well, the point of an interim order, is a holding position until the Court can decide whether to make the full order. The interim care order is made because the Court has adjourned the application for a full order under s38 (1) (a). And if there’s no jurisdiction post 17 to make the final order, how can that be a legitimate use of an interim order?”
(Okay, sometimes I just say ‘no, trust me, you don’t want me to explain , it is just no‘)
s31 (11)In this Act—
“a care order” means (subject to section 105(1)) an order under subsection (1)(a) and (except where express provision to the contrary is made) includes an interim care order made under section 38; and
“a supervision order” means an order under subsection (1)(b) and (except where express provision to the contrary is made) includes an interim supervision order made under section 38.
s38 “(1) Where –
(a) in any proceedings on an application for a care order or supervision order, the proceedings are adjourned or
(b) the court gives a direction under section 37(1), the court may make an interim care order or an interim supervision order with respect to the child concerned.
The High Court, in Re Q (A Child: Interim Care Order) 2019
Also say no, but they didn’t reference s31 (11) (They put it in to their citation of the statute, but don’t use it in their reasons)
They go on the second limb of my answer
- I endorse Mr Barnes’ submissions that Parliament chose in passing the Act to demarcate seventeen or sixteen (if married) as the age after which a child could not be placed in the care or supervision of a local authority without a full disposal of the case having been achieved. That was a recognition of the growing autonomy of the individual child. Likewise, the ability of a final care order to persist until the age of eighteen is a recognition of the obligations placed on a local authority, once parenting has been established to fall below the reasonable standard expected, to ensure a child is not left without appropriate care before becoming an adult. Those matters support my analysis of section 38(4) as amended.
- All the above brings me to the conclusion that no interim care or supervision order will endure beyond the date of a child’s seventeenth birthday or the date of a child’s marriage if aged sixteen. To be clear, interim care and supervision orders made for a period during which the child turns either seventeen or gets married (if aged sixteen) are impermissible. If, prior to the 2014 amendments, interim public law orders were being made which extended beyond the child’s seventeenth birthday, they should not have been given (a) the absence of an explicit power to continue such orders beyond a child’s seventeenth birthday and (b) the age thresholds set out in the Act. The dicta of McFarlane LJ in Re W [see above] support this proposition.
- If my interpretation of section 38(4) is correct, where does that leave the existing section 31 proceedings? Mr Woodward-Carlton submitted that an interim care order which continued beyond a child’s seventeenth birthday led nowhere. It was not a precursor to a final section 31 order as there was no jurisdiction to make such orders after a child turned seventeen. Mr Barnes strongly supported those submissions, suggesting that it would be absurd if an interpretation were given to section 38 which permitted the imposition of compulsory care arrangements on an adjournment of proceedings without purpose. Such an approach would conflict with section 1(2) of the Act and the court’s overriding objective. Contrariwise, Mr Devereux QC submitted that the continuation of the existing section 31 proceedings may have a purpose in that the court might be able to make findings of fact which might inform either the making of other orders or future local authority decision-making.
- I observe that the jurisdiction to make an interim care or supervision order only arises on an adjournment or in the event of a direction pursuant to section 37 of the Act. It is thus not available as a freestanding remedy. Lord Nicholls in paragraph 89 of Re S (Care Order: Implementation of Care Plan)  UKHL 10 noted that the source of the court’s power to make an interim care order arises on an adjournment of section 31 proceedings and in paragraph 90 he stated as follows:
- “90. From a reading of section 38 as a whole it is abundantly clear that the purpose of an interim care order, so far as presently material, is to enable the court to safeguard the welfare of a child until such time as the court is in a position to decide whether or not it is in the best interests of the child to make a care order. When that time arrives depends on the circumstances of the case and is a matter for the judgment of the trial judge. That is the general, guiding principle. The corollary to this principle is that an interim care order is not intended to be used as a means by which the court may continue to exercise a supervisory role over the local authority in cases where it is in the best interests of the child that a care order should be made.”
Those words support the proposition that interim public law orders are not freestanding remedies but take their life from proceedings in which the court has the jurisdiction to make substantive public law orders. Where those remedies are not available, the continuation of the proceedings appears, at first glance, illogical
HOWEVER, the High Court did consider that there would be jurisdiction to continue the care proceedings themselves, if issued before the child’s 17th birthday. (I’m not sure I agree, but where the High Courtand I disagree, hot newsflash the High Court win that argument)
The thinking, I believe, is where the proceedings might be used to determine contentious findings of fact, and of course, the Court in care proceedings also have the power to make no order, or a section 8 order as to where a child would live and how much time they would spend with a parent.
(I think the rationale for saying on an application for an order the Court can no longer make, the proceedings can stay open once the Court can no longer make those orders is thinner than Christian Bale in The Machinest, but the High Court win this one). Obviously if there are younger children in the same set of proceedings, the need for them to remain live for the 17 year old falls away a little, but the advantage to keeping them open is that the 17 year old has a voice as to what happens to their siblings.
- In my view, there is a distinction between the making of interim public law orders on an adjournment where a child has turned seventeen and the continuation of the section 31 proceedings themselves. I remind myself that no court seised of public law proceedings is required to make either interim or final public law orders. It may decide that a section 8 order or indeed no order is an appropriate disposal at either an interim or final stage. Whilst no interim or final public law order would, on my analysis of section 38(4), be available in respect of a seventeen year old child (or sixteen if married), I am not persuaded that these welfare-driven proceedings themselves would necessarily lack purpose and must fall away once the jurisdiction to make either interim or final public law orders is lost. In some cases, it may be crucial to establish whether the threshold criteria have been met because this might determine the basis for future decision making by a local authority, for example, as to the type of support available to the child or family concerned. Whether that exercise is necessary and proportionate will be a matter for the good sense of the judge managing/determining the proceedings. For example, it might not be where a child of seventeen wishes to be accommodated against the wishes of those with parental responsibility. Additionally, although final public law orders would not be available to the court, the court might conclude the proceedings before the child is eighteen by making other orders available to it such as a section 8 order (assuming exceptional circumstances applied) or by making orders under the inherent jurisdiction. Whilst the latter could not operate to require a child to be placed in either the care or supervision of a local authority or to require a child to be accommodated by a local authority, other orders under the inherent jurisdiction may be entirely suitable in the circumstances of the individual case. I conclude that, when the jurisdiction to make interim and final public law orders is no longer available, careful scrutiny of the circumstances of each case is required by the court in order to discern whether the proceedings themselves lack merit and whether it is proportionate and in the child’s welfare interests for them to continue. Discontinuance of the proceedings is likely to be the proportionate, welfare-driven outcome in many such cases and, if that is so, the local authority should be permitted to withdraw its application. There will, however, be some cases where a useful forensic and welfare-driven purpose might be served by the continuation of public law proceedings albeit without the structure provided by interim public law orders.
I don’t think the LA could legitimately ISSUE care proceedings on a child who was now 17, but if the proceedings are already in force, this paragraph does create an argument for keeping them open until the Court is in a position to make final Children Act 1989 orders, notwithstanding that the Court can’t make the orders that were actually applied for.