In this recent decision of the Court of Appeal, The President of the Family Division, Sir Andrew McFarlane, acknowledged 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 to remain living, at home with their parent(s)’.

He went on to state that ‘the difference of approach is striking, and its existence has become something of a hot potato’. The Court was guided by the President’s Public Law Working Group Guidance (Report: March 2021) when determining the issue in this case, and the judgment established clear and coherent principles to assist practitioners moving forwards. 

What was the background? 

The case concerned three children: a girl who was nearly aged fourteen, and two boys who were aged eleven and seven years of age. The children’s mother had met ‘Mr P’ in 2020 and the couple had married the following year, and it was only then that the mother was informed by social services that Mr P had been convicted in 2005 of offences of making and possessing a large number of indecent images of children. Mr P had resultantly been made the subject of a Sexual Harm Prevention Order, which prohibited him from having any unsupervised contact with children. The mother immediately agreed in October 2021 to sign a safety plan which required Mr P to move out of the family home, however, the local authority became increasingly concerned that these protective arrangements was not being adhered to.   

The local authority issued care proceedings in May 2022 and the children remained living at home with their mother under an interim supervision order. The final hearing was held in November 2022 and HHJ Harris-Jenkins made a full care order, with a care plan for the children to remain living at home. This decision was appealed by the mother on two grounds. The first ground was that the court was wrong to make final care orders instead of final supervision orders in circumstances where the care plans were for the children to remain at home with their mother. The second ground was that, in the event that the court had considered that more time was required for the mother to evidence the ending of the relationship with Mr P and/or her commitment to the proposed work, the court was wrong not to adjourn the final hearing and extend the proceedings.  

What did the appeal court decide? 

The appeal was allowed on ground one, and Sir Andrew McFarlane instructed that supervision orders were to be made in place of the care orders for the children. He relied in his decision upon the recommendations and the guidance of the Public Law Working Group, and he reduced this to a few salient points.

The pertinent principles included that a care order should not be used solely as a vehicle to achieve the provision of support and services after the conclusion of proceedings. 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, and it should be extremely rare that the risks of significant harm to a child is judged to be sufficient to merit the making of a care order but equally regarded as risks that can be managed with the child remaining in the care of the parents. The guidance goes on to indicate that where a child is to be placed at home, the making of a supervision order to support reunification may instead be proportionate, and in these circumstances a supervision support plan would be required to achieve this. 

The appeal court noted that the judge had principally made a care order because he stated that a supervision order did not have sufficient ‘safeguarding features’. However, he neglected to identify what the supposed safeguarding features of a care order were in this case. The risk was in fact slow burning and the plan for monitoring and support would be the same under either order, especially as the local authority would have to issue further court proceedings to remove the children from the home in any event. The result is that there was nothing that making a care order would add to the local authority’s ability to provide the children with protection. 

The second ground of appeal was dismissed due to the impact that providing for an adjournment and further assessment would unduly impact upon the 26-week timetable, as this was not deemed to be justified within the circumstances. Nonetheless, the first ground alone was sufficient to allow supervision orders to be made in place of the care orders for all three of the children concerned.  

What are the practical implications of this case? 

Takeaway points: 

  • 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 will be rare that the risks of significant harm to a child are judged to be sufficient to merit the making of a care order but, nonetheless, as risks that can be managed with the child remaining in the care of parents;
  • The support and monitoring provided under a supervision order is widely likely to be the same as that provided under a care order, and there is often no additional ability for the local authority to provide protection through making a care order;
  • A supervision order to support may be proportionate when a child is to be placed at home, and the best practice guidance in the Public Law Working Group report must be applied and particularly a Supervision Support Plan produced.  

The question that remains is: When are circumstances considered ‘exceptional,’ and when is it justifiable to issue a care order with a plan for the child to remain at home?

Written by Isabel Clarke, Pupil Barrister at Unit Chambers.

Law is correct as of 21st September 2023. Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational purposes. Readers are respectfully reminded that it is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose. No liability is accepted for any error or omission contained herein.

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