Re B (Minors) (Care or Supervision Order)
| Jurisdiction | England & Wales |
| Judgment Date | 1997 |
| Year | 1997 |
| Date | 1997 |
| Court | Family Division |
HOLMAN, J
Care – local authority applying for supervision orders in care proceedings – guardian ad litem recommending that care orders be made – whether care orders or supervision orders should be made – factors to be taken into account.
The parents were married in 1979 and had six children: two boys and four girls. The eldest child was now aged 15 and the youngest was now aged 8. The eldest, a boy, suffered from schizophrenia with paranoid beliefs. In 1994 the eldest of the girls, then aged 13, stated that the father had repeatedly sexually abused her and she and the next eldest girl, then aged 12, stated that the father had excessively chastised them.
The father was charged with indecent assault but failed to attend his trial in October 1994 and had disappeared.
In March 1995 full care orders were made by consent in respect of the two elder girls and they were placed with foster-parents. The mother was given residence orders in relation to the other four children with an express order that there should be no contact with the father. The mother entered into an agreement with the local authority which was recorded in a schedule to the orders. This agreement permitted the local authority to refer any or all of the four children to experts for protection/assessment work. The mother also agreed to see a psychologist for assistance with her parenting. The case was listed for hearing. The local authority sought supervision orders whereas the guardian ad litem recommended that care orders should be made in respect of the four children.
A few days before the hearing began, the up-to-date information as to the eldest child's needs suggested that consideration should be given to a recommendation by a consultant psychiatrist that the boy should be placed in a residential setting providing education and therapeutic support. This needed investigation so a decision as to the boy's future had to be postponed. The court therefore proceeded to deal with the issue relating to the three youngest children.
Held – (1) On the basis of admissions of fact made by the mother, it would be held that in relation to each of the three youngest children he or she was likely to suffer significant harm if a care order or supervision order was not made. As a result, the court must exercise a discretion whether to make a care order or a supervision order or no order at all. In exercising that discretion the court must make the welfare of the child the paramount consideration and applying the tests in s 1 of the Children Act 1989. It was clear that each of the children needed more protection than could be given voluntarily. Consequently, the court had to choose between a care order and a supervision order.
(2) On the choice between a care order and a supervision order it was clear on the authorities that it could be appropriate to make a care order even although (i) all the parties agreed that the children should not be removed from the daily care of and living with the parent, and (ii) the local authority only sought a supervision order. A care order was a stronger and more serious order to make than a supervision order and should only be made if the stronger order was necessary for the proper protection of the child. A fundamental difference between the two types of order was that whereas if a care order was made the local authority had an obligation under s 22 of the 1989 Act to safeguard the child, if a supervision order was made that obligation remained with the mother.
(3) In the circumstances of the present case, it was relevant to have regard to the view of the local authority that the powers of a care order were excessive; that the mother would be less co-operative if there were care orders rather than supervision orders; and that there was concern as to how the children would react to care orders. In all the circumstances, the pressing needs of the three children were: first, to be closely monitored within their home; and secondly, for work to be undertaken away from home to teach them how to protect themselves. Those needs could be appropriately provided within the scope and power under a supervision order coupled with the agreements which were scheduled to the residence orders.
Statutory provisions referred to:Children Act 1989, ss 1 and 22.
Cases referred to in judgment:D (A Minor) (Care Proceedings: Appropriate Order), Re[1993] 2 FCR 88.
S(J) (A Minor) (Care or Supervision Order), Re[1993] 2 FCR 193.
T (A Minor) (Care Order), Re[1994] 1 FCR 663.
W (A Minor) (Care Proceedings: Interim Order), Re[1994] 3 FCR 102.
Yvonne Healing for the local authority.
Anastasia Ioannou for the mother.
Gillian Irving for the guardian ad litem.
MR JUSTICE HOLMAN. IntroductionMr and Mrs B (whom I shall call the "father" and the "mother") were married in 1979. They have six children: J, a boy, is now aged 15½. R, a girl, is now aged 14½. M, a girl, is now aged 13. S, a boy, is now aged 11½. C, a girl, is now aged 9¾. RB, a girl, is now aged 8¾.
As long ago as 1982, when the family lived in Hackney, the children then born were monitored by the local social services who were concerned with the way the family functioned and in particular with how the parents coped with J, whose rate of development was slow. Even then the family was noted to be resistant to social work involvement.
In about 1990 the family moved to the Manchester area. The parents apparently separated. The father lived in Moss Side, but spent considerable amounts of time with the mother and the children at the mother's home. In February 1994 R revealed, first to an aunt and then to social workers and the police, that her father
had repeatedly sexually abused her over a long period of time. The alleged abuse was very serious, including inserting his finger into her vagina and other forms of inappropriate touching and displays of his own penis. Physical examination of R's genitalia, on 5 February 1994, revealed two clefts in her hymen and associated scarring, which, in the opinion of the examining doctor, "could have resulted from digital penetration or from penetration through the hymenal orifice by an object".
At the same time R and M both stated that their father had repeatedly excessively chastised them, but in particular M, "for fun" with a leather belt which he would soak in salt water so as to make it extra hard. R and M were removed from home and have since then lived with foster-parents. Further investigation by the social services revealed a number of serious concerns about the other children and about the functioning of this family generally.
The father was charged with six specimen counts of indecent assault and bailed to stand trial in October 1994. He failed to attend the trial and no one, whom I will loosely call "in authority", has seen him or had any knowledge of his whereabouts since about one week before he was due to stand trial. Although the mother denies it, the guardian ad litem strongly believes that in the period between February and October 1994 the father continued to visit the mother's home in breach of his conditions of bail. But so far as I am aware there is no evidence that since his "disappearance" in October 1994 the father has visited or been in contact with the mother or any of the children. The mother firmly denies that she is in touch with him or has any knowledge of his whereabouts.
After a number of interim hearings and orders the case was listed before Bracewell, J in Manchester on 28 March 1995. Throughout that day a detailed agreement was negotiated outside court between the local authority, the mother and the guardian ad litem, which resulted in the consent order of 28 March 1995. In essence it provided for full care orders in respect of R and M, who, as I have said, have continued to live with foster-parents, although they make fortnightly visits to their mother's home. So far as I am aware there are no plans for R or M to return home in the foreseeable future.
The remaining four children (whom I will refer to as "the four children") had and have continued to remain with their mother. The local authority sought supervision orders in relation to the four children and this was acceptable to the mother. But the guardian ad litem then, as now, considered that the four children should be the subject of full care orders, but on the basis that they continued to live at home. In effect the resolution of that issue was postponed until this week. The mother was given residence orders in relation to the four children with an express order that "there shall be no contact to the father". There was provision for a series of interim supervision orders and the mother entered into a detailed agreement with the local authority, recorded in a schedule to the order. Of particular relevance today are her agreement to permit the local authority to refer any or all of the four children to appropriately qualified experts instructed by the local authority for protection/assessment work and her agreement to see a psychologist, Mrs Litwinenko, for assessment of and assistance with her parenting. Paragraph 6 of the order itself specifically envisaged that the NSPCC would be involved in the "formulation of a clinical protection package". There was no oral evidence given to Bracewell, J and no actual judgment or findings by her as
to any of the facts of the case.
In accordance with the March order the case has been listed this week for determination of the issue whether the four children should be the subject of care orders or supervision orders in the light both of the whole history of the case and of the developments and assessments since the March order.
The eldest child, JJ has very special and very serious problems of his own. He suffers from schizophrenia with paranoid beliefs for which he receives regular medication. He has very disturbed sleep and a very reclusive outlook to life, such that he will rarely leave home and is completely missing school or other normal...
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