JW (Child at Home under Care Order)

Hearing dates: 14 th March 2023

Approved Judgment

This judgment was handed down remotely at 10.30am on 4 th August 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

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 choice between a care or supervision order when a child is placed at home has not been the subject of any recent determination by the Court of Appeal. In particular, the issue has not been considered on appeal since the important decision of Baker J (as he then was) in Re DE (Child under Care Order: Injunction under Human Rights Act 1998) [2014] EWFC 6; [2018] 1 FLR 1001, which established that, in the absence of a true emergency, if a local authority is intending to use its power under a care order to remove a child from home, notice should be given to the parent(s) to allow them to bring the issue to court, either via an injunction application or an application to discharge the care order.

The present appeal concerns three children: a girl, now aged nearly 14 years, and two boys, now aged 11 and 7 years. In 2020, the children's mother (“the mother”) met ‘Mr P’ and the couple married the following year. It was only after her marriage 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. He had been made the subject of a Sexual Harm Prevention Order prohibiting him from having unsupervised contact with children. In October 2021, as soon as she had been made aware of this information, the mother agreed to and signed a safety plan under which Mr P moved out of the family home. However, in the following months the local social services authority became increasingly concerned that the mother was not adhering to the safety plan and that Mr P was having unauthorised contact with her and the family. As a result, in May 2022, the local authority issued care proceedings under CA 1989, s 31. Throughout the proceedings the children remained living at home with their mother under an interim supervision order. At the final hearing, in November 2022, HHJ Harris-Jenkins acceded to the submissions of the local authority and children's guardian by making a full care order with a care plan for the three children to remain living at home. The mother's appeal to this court asserts that making a care order with the children at home was wrong; in the alternative it is argued that, rather than making a final order, the judge should have extended the proceedings to allow the mother's ability to protect the children from Mr P to become more established. Before saying more about the appeal itself, it is necessary to describe the statutory context, the extant caselaw and recent guidance.

Care and supervision orders: the statutory context

A court may only make either a care order or a supervision order if the ‘threshold criteria’ in CA 1989, s 31(2) are satisfied, namely:

“(a) that the child concerned is suffering, or is 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 the 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 court may, on an application for a care order, make a supervision order and, vice versa, on an application for a supervision order make a care order [CA 1989, s 31(5)].

If the threshold criteria are met, the choice of whether to make any order, and if so which, in care proceedings is to be determined by affording paramount consideration to the child's welfare [CA 1989, s 1(1)]. The court must have regard to the matters set out in the welfare checklist in CA 1989, s 1(3) and the non-intervention principle in s 1(5):

“(5) Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.”

(a) Placement with parents under a care order

By CA 1989, s 31(1)(a), a care order places a child with respect to whom the order is made in the care of a designated local authority. The local authority shares parental responsibility for the child, but has the power to determine how any other holders may exercise parental responsibility [CA 1989, s 33]:

‘ 33.—Effect of care order.

(1) Where a care order is made with respect to a child it shall be the duty of the local authority designated by the order to receive the child into their care and to keep him in their care while the order remains in force.

(2) …

(3) While a care order is in force with respect to a child, the local authority designated by the order shall—

(a) have parental responsibility for the child; and

(b) have the power (subject to the following provisions of this section) to determine the extent to which

(i) a parent, guardian or special guardian of the child; or

(ii) a person who by virtue of section 4A has parental responsibility for the child, may meet his parental responsibility for him.

(4) The authority may not exercise the power in subsection (3)(b) unless they are satisfied that it is necessary to do so in order to safeguard or promote the child's welfare.

…’

A child who is placed in the care of a designated local authority under CA 1989, s 31(1) is a child who is being ‘looked after’ by the authority for the duration of the care order [CA 1989, s 22(1)]. Part 3 of the CA 1989, in England, and the Social Services and Well-being (Wales) Act 2014 [SSWB(W)A 2014], in Wales, make extensive provision describing the duties placed upon local authorities with respect to ‘looked after’ children.

In England, CA 1989, s 22C establishes a default requirement for a looked after child to live with a parent or similar parental figure:

“22C Ways in which looked after children are to be accommodated and maintained

(1) This section applies where a local authority are looking after a child (“C”).

(2) The local authority must make arrangements for C to live with a person who falls within subsection (3) (but subject to subsection (4)).

(3) A person (“P”) falls within this subsection if—

(a) P is a parent of C;

(b) P is not a parent of C but has parental responsibility for C; or

(c) in a case where C is in the care of the local authority and there was a child arrangements order in force with respect to C immediately before the care order was made, P was a person named in the child arrangements order as a person with whom C was to live.

(4) Subsection (2) does not require the local authority to make arrangements of the kind mentioned in that subsection if doing so—

(a) would not be consistent with C's welfare; or

(b) would not be reasonably practicable.

(5) If the local authority are unable to make arrangements under subsection (2), they must place C in the placement which is, in their opinion, the most appropriate placement available.”

Similar provision is made in Wales by SSWB(W)A 2014, s 81:

“ 81 Ways in which looked after children are to be accommodated and maintained

(1) This section applies where a local authority is looking after a child (“C”).

(2) The local authority must make arrangements for C to live with a person who falls within subsection (3), but this is subject to subsections (4) and (11).

(3) A person (“P”) falls within this subsection if—

(a) P is a parent of C,

(b) P is not a parent of C but has parental responsibility for C, or

(c) in a case where C is in the care of the local authority and there was a child arrangements order in force with respect to C immediately before the care order was made, P was a person in whose favour the child arrangements order was made.

(4) Subsection (2) does not require the local authority to make arrangements of the kind mentioned in that subsection if doing so—

(a) would not be consistent with C's well-being, or

(b) would not be reasonably practicable.

(5) If the local authority is unable to make arrangements under subsection (2), it must place C in the placement that is, in its opinion, the most...