This is a Court of Appeal decision about care orders at home, and the difference in practice and approach in two (not quite halves) parts of the country. I chatted about this on what we now have to call X yesterday and it drew some interest, so I’m doing a post on it.
Basically, the Court of Appeal were considering a case where a Court had made a Care Order and the child was placed at home. They raised within the appeal broader issues of how the issue of Care Orders at home was being dealt with differently based on whether your Court fell North or South of that imaginary line across the country between Hull and Bristol.
The Court of Appeal (or those who decide these things) felt the case was sufficiently important to make it to the judiciary website – it isn’t yet on Bailii
Re JW (Child at Home under Care Order) [2023] EWCA Civ 944
http://www.judiciary.uk/judgments
For some years it has been recognised that a difference exists in the approach taken by
courts in different regions when determining whether a final care order, supervision
order or no order should be made when care proceedings conclude with a plan for the
subject child to be placed, or remain living, at home with their parent(s). Broadly
speaking, if a line is drawn from Hull down to Bristol and beyond, courts in England
and Wales that are North and West of that line will often make a care order in such
cases, in contrast to courts South and East of the line where normally a supervision
order or no public law order will be made. My experience is that the judges who sit on
one side of the line or the other are confident that the approach taken in their area is the
correct one. The difference of approach is striking, and its existence has become
something of a hot potato, and increasingly so as Family Courts across England and
Wales strive, once again, to conclude public law care proceedings within the statutory
26 week time limit set by Children Act 1989, s 32(1) [‘CA 1989’].
The Court of Appeal go on to say that the last time the issue of Care Orders at home versus Supervision Orders at home was really explored in detail on appeal was in Baker J’s decision of Re DE – a case which really looked at what, from a human rights perspective, the process would be for a Local Authority to use the power under a Care Order to remove and thus disturb the care plan approved by the Court. It isn’t as simple as the LA having the power and using it – they have to follow a careful process and meet tests to ensure fairness, and there’s not an easy method for parents to challenge it – or at least challenge it with lawyers who are being financially recompensed for the work involved.
Re DE looked, at least to a lawyer on the Southern side of that divide, like it was the end of a practice of care orders at home, save in the most exceptional cases. The LA have all of the responsibility but frankly none of the power, and the parents have the spectre of the LA over them until the child is an adult and the fear that the power might be used. It doesn’t seem like an order anyone would want.
But apparently, it was not the end of that practice. My best guess is cases where a Court is worried about a child being at home and dubious about a Supervision Order being enough, but doesn’t feel placement outside the family is justified, reaching for a Care Order as being a middle ground where a greater risk can be managed at home knowing that the LA have statutory responsibilities. I don’t, however, know how that translates into the diffference either side of the Hull-Bristol line.
(The facts of this case were that the parents had 3 children aged 14, 11 and 7. The mother met and married a man named Mr P, who she learned after her marriage had been convicted for possession of indecent images of children – and obviously what an awful thing to learn. She separated from Mr P but there were concerns that she had been allowing him unauthorised contact with the children. If Mr P disappeared from the family life completely then the children would be safe at home, but would that actually happen? The Court made a Care Order for the 3 children with them to remain living with mother, presumably so that the LA could use the Re DE process to remove the children if Mr P was caught having unauthorised contact)
The mother appealed, arguing that rather than make such a draconian order, the Court should have extended the proceedings for fuller assessment of her ability to protect.
This being a judgment led by the President of the Family Division, the law and history of the law about Care Orders versus Supervision Orders is set out clearly and succinctly, and it would be an excellent basis for any lawyer constructing submissions on the point.
The judgment also discusses the Public Law Working Group (PLWG) who considered these issues and provided written guidance, which indicates that:-
‘34. The making of a care order on the basis of a plan for the child to remain in
the care of her parents/carers is a different matter. There should be exceptional
reasons for a court to make a care order on the basis of such a plan.
- If the making of a care order is intended to be used [as] a vehicle for the
provision of support and services, that is wrong. A means/route should be
devised to provide these necessary support and services without the need to
make a care order. Consideration should be given to the making of a supervision
order, which may be an appropriate order to support the reunification of the
family. - The risks of significant harm to the child are either adjudged to be such that
the child should be removed from the care of her parents/carers or some lesser
legal order and regime is required. Any placement with parents under an interim
or final order should be evidenced to comply with the statutory regulations for
placement at home. - It should be considered to be rare in the extreme that the risks of significant
harm to the child are judged to be sufficient to merit the making of a care order
but, nevertheless, the risks can be managed with a care order being made in
favour of the local authority with the child remaining in the care of the
parents/carers. A care order represents a serious intervention by the state in the
life of the child and in the lives of the parents in terms of their respective ECHR,
article 8 rights. This can only be justified if it is necessary and proportionate to
the risks of harm of the child.’
I would set that out in a table, but I can’t know how to hear any more about tables. *
The Court of Appeal were very mindful of the wider issues in the case, and that it did not sit comfortably that two entirely different philosophical approaches to care orders at home existed in the country and markedly so on geographical lines – the North taking the view that Care Orders at home were part of a judicial toolkit for problem-solving and the South that they were a very serious intervention that would only very rarely be warranted. This needed to be resolved.
- 65. The present situation, in which the law is applied in a markedly different manner in two
halves of England and Wales, cannot continue. 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. The approach taken by the PLWG is no more than the
logical development of the earlier caselaw, once account is taken of the need for
proportionality and once it is understood that, following Re DE, there are only
procedural differences between the power of removal where there is a care order or
where there is none. As Hale J/LJ made plain, it has never been the case that a care
order should be used as a means to ensure that a local authority meets the duties that it
has with respect to children in need in its area, nor should it be used to influence the
deployment of resources. - The PLWG recommendations and guidance can be reduced to the following short
points:
a) a care order should not be used solely as a vehicle to achieve the
provision of support and services after the conclusion of proceedings;
b) 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;
c) 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;
d) where a child is to be placed at home, the making of a supervision order
to support reunification may be proportionate;
e) 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.
- The impact of the requirement for a 26-week timetable and adherence to the PLO mean
that the decision as to what final order to make may occur at a comparatively early stage
where a child has been removed from home, but a rehabilitation plan is being implemented. In such cases, there may be grounds for extending the 26-week deadline to some extent, but where, as in the present case, the children are settled at home and what is taking place is the reinforcement and further development of protective measures over an extended period, the court should make a final order rather than contemplating extending the proceedings over an extended or indeterminate period.
The Court granted the appeal (though to make Supervision Orders rather than extend the proceedings.
*TABLES! is a reference to one of my latest obsessions, “I think you should leave” and this sketch below, which yes, i’m just crowbarring in because I love it. Warning, it does contain some strong language, so NSFW
“why was there swearing?”
suesspiciousminds 