Care and Supervision Proceedings
| Author | Safda Mahmood/Julie Doughty |
| Pages | 77-111 |
Proceedings
7.1 Care order – definitions
‘Care orders’ are those orders made under section 31 of the CA 1989, placing a child into the care of a designated local authority. The ‘designated local authority’ is the local authority for the area in which the child resides, or within whose area any circumstances arose in consequence of which the care order is being made.
A ‘child’ is a person under the age of 18 (section 105(1) of the CA 1989). The term ‘care order’ includes an ‘interim care order’ made under section 38 as well as an order made under section 31. Reference to a ‘child in the care of the local authority’ is defined by section 105(1) to mean a child subject to a care order (and not therefore a child who is accommodated by a local authority under a section 20 voluntary care arrangement), although children who are in the care of the local authority are also ‘looked after’ and the same planning and review regime applies as for accommodated children.
7.2 Grounds for application for a care or supervision order
A care order cannot be made in respect of a child aged 17 years or older, or 16 if married (section 31(3) of the CA 1989).
Under the CA 1989 there is only one route into statutory care. The court must be satisfied that the criteria set out in section 31 are met and also that an order is necessary for the welfare of the child.
The underlying principles in section 1(1), (2) and (5) of the CA 1989 – the paramountcy of the welfare of the child, avoidance of delay and no order unless necessary – all apply. The court must have regard to the welfare checklist in section 1(3), see Chapter 2.
Care orders and supervision orders are mutually exclusive, but the grounds in section 31 for the application for both are the same. On hearing an application for a care order, if the threshold criteria are met, the court may instead order supervision, or vice versa. Where a care order
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is in force, the court may, at any time during it, substitute supervision, but the making of the supervision order will discharge the existing care order.
Section 31(1) of the CA 1989 specifies the grounds for application for a care or supervision order:
(a) that the child concerned is suffering, or likely to suffer, significant harm; and
(b) that the harm; or likelihood of harm, is attributable to:
(i) the care given to the child, or likely to be given to him if an order were not made, not being what it would be reasonable to expect a parent to give to him; or
(ii) the child’s being beyond parental control.
The following definitions are taken from section 31(9) of the CA 1989.
Development
Physical, intellectual, emotional, social or behavioural development.
Harm
Ill treatment or the impairment of health or development, including, for example, impairment suffered from seeing or hearing the ill-treatment of another.
Health
Includes physical or mental health.
Ill treatment
Includes sexual abuse and forms of ill treatment which are not physical.
7.3 Significant harm
The difficult part for practitioners in care and supervision proceedings is often the definition and proof of ‘significant harm’. Section 31(9) of the CA 1989 gives the definitions (see above). It is also provided in section 31(10) that: ‘Where the question of whether harm suffered by a child is significant turns upon the child’s health or development, his health or development shall be compared with that which could reasonably be expected of a similar child’. The court will therefore have to compare this particular child with a notional similar child, of similar background, age, ethnicity, culture, race, religion and physique. See Figure 7.1.
Figure 7.1 Significant harm flowchart
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Significant harm must be attributable to parental care falling below a reasonable standard, or the child being beyond parental control. The test is objective, measured against a reasonable standard of parenting. However, the definition became problematic in Re MA (Care Threshold) [2009] EWCA Civ 853.
More recently, in Re B (A Child) [2013] UKSC 33, there were important points made surrounding threshold and the terms ‘significant’ and ‘likelihood of harm’. Lord Wilson stated the word ‘significant’ involves comparing what that child has suffered, with what can be reasonably expected of a similar child. Also, that the court should avoid attempting to explain the word ‘significant’ His Lordship stated at [25]:
The first matter is the meaning of the word ‘significant’. In this regard Parliament chose to help the court to a limited extent by providing in section 31(10) as follows:
‘Where the question of whether harm suffered by a child is significant turns on the child’s health or development, his health or development shall be compared with that which could reasonably be expected of a similar child.’
When we read this subsection together with the definition of ‘harm’ in the preceding subsection, we conclude that, whereas the concept of ‘ill-treatment’ is absolute, the concept of ‘impairment of health or development’ is relative to the health or development which could reasonably be expected of a similar child. This is helpful but little more than common sense.
As to the concept of ‘likelihood of harm’, Lord Wilson described it in the following way (at [24]):
... It is common ground that, as recently reaffirmed by this court in In re J (Children) (Care Proceedings: Threshold Criteria) [2013] UKSC 9, [2013] 2 WLR 649, a likelihood of significant harm means no more than a real possibility that it will occur but a conclusion to that effect must be based upon a fact or facts established on a balance of probabilities. In the context of the present case it is also noteworthy that, by section 31(9), ‘harm’ means ‘ill-treatment or the impairment of health or development ...’ and ‘development’ includes ‘emotional ... development’. Beyond this, however, the debate surrounds two matters.
In Re M (Minor) (Care Order: Threshold Conditions) [1994] 2 AC 424, the House of Lords held that ‘is suffering’ means at the date of the hearing, or at the moment when the child protection was initiated, provided that the protection is uninterrupted until the date of the hearing. A careful reading of this judgment is recommended. Whilst the court may find the grounds proved, it may also take account of the circumstances prevailing at the hearing date in considering whether it is necessary to make an order, and which order would be most appropriate.
7.3.1 Standard of proof
The threshold criteria for proceedings under section 31 of the CA 1989 must be established on a ‘simple balance of probabilities’, i.e. significant harm (unlike the ‘likelihood’ element mentioned at para 7.3) must be established on a balance of probabilities. The House of Lords put it very clearly as ‘… a real possibility, a possibility that cannot be sensibly ignored, having regard to the nature and gravity of the feared harm in the particular case …’. See Re H and Others (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80, a section 31 application in respect of four children based on an allegation that the father had sexually abused the oldest child, and positing a likelihood of significant harm to the younger three. The court found that the section 31(2) criteria were not met in the case of the oldest child, leaving no power to go on and even consider the likelihood of harm to the younger three children.
Difficulties in reaching the standard of proof occurred in subsequent cases because of dicta in Re H and Others (above) suggesting that the more serious the allegation, the greater the level of proof needed. However, in Re B (Children) (Sexual abuse: Standard of proof) [2008] UKHL 35, [2008] 2 FCR 339, Baroness Hale clarified that the standard of proof necessary to establish threshold under section 31 is the ‘simple balance of probabilities, nothing more nor less’.
7.3.2 Linking harm or likelihood of harm to the facts
Under section 31 of the CA 1989, the local authority must also prove that the harm was attributable to the parents’ care (or lack of care). This can cause difficulties in the case of ‘uncertain perpetrators’ when it is not known which parent or carer was responsible for an injury. In Re O and N (Children) (Non-accidental injury) [2003] UKHL 18, the House of Lords held that where an injury could be attributed to the parents but neither would say who was responsible, the court should proceed to the welfare stage on the basis that each is a possible perpetrator.
More recently, in Re A (A Child) [2015] EWFC 11 at [7], the then President of the Family Division, Sir James Munby, set out three key aspects surrounding threshold. The first is that it is the local authority which has to prove, on the balance of probabilities, the facts upon which it relies. The court stated that findings of fact must be based on evidence, not suspicion or speculation. The allegations that are put, such as ‘he appears to have’ or ‘other people that stated, or reported’ or ‘there is an allegation’ should not be used. The allegation should not be ‘he appears to have lied’,
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instead it should be ‘he lied’. The second fundamental point is the need to link the facts relied upon by the local authority with its case on threshold, and therefore, the need to demonstrate why the facts asserted justify the conclusion that the child has suffered, or is at risk of suffering, significant harm. Thirdly, at [14] of the judgment, His Lordship emphasised that society must be willing to tolerate very diverse standards of parenting, and that children will have very different experiences of parenting. Also, note the case of Re BR (Proof of Facts) [2015] EWFC 41, in which Jackson J stated that the court acts on evidence, not speculation or...
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