Re K (supervision orders)
| Jurisdiction | England & Wales |
| Judgment Date | 14 October 1998 |
| Court | Family Division |
Care proceedings – Local authority contending and parent accepting threshold criteria satisfied – Local authority and parent agreeing that supervision order should be made – Guardian ad litem disagreeing – In the alternative guardian ad litem contending court should make no order – Role of guardian ad litem where local authority and children’s parent reaching agreement – Whether supervision order or no order should be made – Children Act 1989, s 31(2), Pt III.
Following the suspicious death of the mother’s fourth child when he was one month old, the local authority commenced care proceedings in respect of the three surviving children and, with the mother’s agreement, they were accommodated in foster care. They were subsequently reunited with the mother and no interim care orders or supervision orders were made. In the course of the proceedings, which were transferred to the High Court, the local authority acknowledged that the evidence concerning the death of the fourth child was insufficient to satisfy the requisite burden of proof and did not invite the court to make a finding of fact that the mother was in any way responsible. The local authority contended, and the mother accepted, that the threshold criteria under s 31(2) of the Children Act 1989 were met by other unrelated factors, such as social isolation, unsuitable associations, ineffective boundaries for the children, and the local authority and the mother agreed that the proper course of action was a supervision order to the local authority for one year. However, the guardian ad litem disagreed with them submitting that if the court was not being invited to make findings of fact as to the baby’s death, the threshold criteria were not met. In the alternative he submitted that if the court was satisfied that the criteria were met, it should have particular regard to the no order principle, especially since the children’s needs were already being met by the local authority in accordance with its duty under Pt III of the 1989 Act to provide services for children and their families.
Held – (1) Where the local authority and the parents had reached a sensible agreement which clearly, as in the present case, protected the child and was in no sense collusive, a guardian ad litem should think long and hard before he sought to upset that agreement or put forward alternative contentious proposals. However, the guardian ad litem had a duty to represent the child and to place before the court all relevant matters relating to the child’s welfare and therefore where the threshold criteria under s 31(2) of the 1989 Act were in issue, there would inevitably be cases in which guardians not only formed opinions as to the
outcome on the basis that the threshold criteria were met, but also about whether or not they were met and that latter opinion might be critical to their recommendations on behalf of the child. Accordingly, whilst guardians should never seek to usurp the functions of the court and might be wise in the vast majority of cases to predicate their recommendations on the premise that the court might make certain findings of fact, it would be unreal for the court to shut out or rule inadmissible that part of the guardians’ reasoning if it informed their conclusions. Thus, the guardian ad litem in the present case could not be criticised for forming a view about the proposed supervision order and expressing it to the court. On the facts, the threshold criteria were met as the family’s situation was fragile and there must be a real possibility that if an order was not made the children would be likely to suffer significant harm.
(2) Once the threshold criteria were satisfied, in considering whether to make a supervision order or no order in accordance with s 1(5) of the 1989 Act, there had to be something in the making or operation of a supervision order which made it better for the children for it to be made. It would be wrong to make a supervision order where the duties imposed on the local authority under Pt III of the 1989 Act to provide services for children and their families would be sufficient to meet the children’s needs as the court should start with a preference for the less interventionist approach rather than the more interventionist approach. In the present case there was abdundant evidence that in the absence of a supervision order the mother would not continue to co-operate with the local authority. The making of a supervision order would ensure the mother’s co-operation, secure careful monitoring by the local authority, and would impose obligations on the mother not imposed under Pt III. It followed that a supervision order was better for the children than no order at all.
Cases referred to in judgmentB (a minor) (supervision order: parental undertaking), Re[1996] 3 FCR 446, CA.
B (minors) (care or supervision orders), Re[1997] 1 FCR 309.
CB and JB (minors) (care proceedings: case conduct), Re[1998] 2 FCR 313.
Croydon London BC v A and B[1992] 2 FCR 481.
D (a minor) (basis of uncontested care order), Re[1995] 2 FCR 681.
Devon CC v S[1992] 1 FCR 550, [1992] Fam 176, [1992] 3 All ER 793, [1992] 3 WLR 273.
H and R (minors) (sexual abuse: standard of proof), Re[1996] 1 FCR 509; sub nom Re H (minors) (sexual abuse: standard of proof) [1996] AC 563, [1996] 1 All ER 1, [1996] 2 WLR 8, HL.
G (a minor) (care: evidence), Re[1995] 2 FCR 120, CA.
J (a minor) (specific issue order), Re[1995] 3 FCR 799.
M and R (minors) (expert opinion: evidence), Re[1996] 2 FCR 617, CA.
O (minors) (care or supervision order), Re[1997] 2 FCR 17.
Oxfordshire CC v L and F[1997] 3 FCR 124.
S (J) (a minor) (care or supervision order), Re[1993] 2 FCR 193.
T (a minor) (care order), Re[1994] 1 FCR 663, CA.
T (accommodation of child by local authority), Re[1995] 1 FCR 517.
V (a minor) (care or supervision order), Re[1996] 2 FCR 555, CA.
ApplicationIn care proceedings in which the local authority applied for a supervision order the parent of the children accepted that the threshold criteria were met and agreed to a supervision order. The guardian ad litem disagreed and submitted that the court should make no order. The case was heard and judgment was given in chambers. The case is reported with the permission of Wall J. The facts are set out in the judgment.
Anthony Kirk (instructed by the local authority solicitor) for the local authority.
Celia Graves (instructed by Iliffes Booth Bennett, Uxbridge) for the mother.
Nicolas Baker (instructed by Turbervilles, Uxbridge) for the guardian ad litem.
WALL J.These care proceedings raise two points of general interest. The first relates to the role of the court and the guardian ad litem where the local authority and one or both of the children’s parents (in this case the mother) reach an agreement (1) that the threshold criteria under s 31(2) of the Children Act 1989 are met, and (2) that a supervision order under s 31(1)(b) of the Act should be made.
The second relates to the nature of the supervision order itself; in particular what, if any, are the benefits of making a supervision order if the only appropriate alternative is not to make a care order, but either: (a) to make no order, thereby leaving the local authority to exercise its duties and responsibilities under Pt III of the Act (provision for services for children and their families); or (b) to make a family assistance order under s 16?
The facts are as follows. I am concerned with three children. They are VK, born on 6 August 1993, and so aged five, DK, born on 27 April 1995, and so aged three, and YK, born on 20 February 1997, and so nearly 20 months’ old. Their mother is 25 and English; their father is 40 and Turkish. The parents married on 13 February 1993. They last lived together in Turkey in November 1997. The father remains in Turkey and has been refused an entry visa to the United Kingdom. He therefore plays no part in these proceedings.
The mother’s case is that the father was extremely violent to her, and that when she returned to England with the children in November 1997 she bore the marks of recent assaults on her. She had nowhere to live and was placed in bed and breakfast accommodation with the children by the local authority.
When she came to England in November 1997 the mother was heavily pregnant with her fourth child, PK. On 3 December 1997 VK, DK and YK were placed with foster carers whilst the mother went into hospital for the birth of PK, who was born on 1 January 1998.
On 8 January 1998 PK was taken to hospital and found to be dead on arrival. His death was treated as suspicious, with the result that although the children were initially returned to their mother’s care on 22 January 1998, the mother very
shortly thereafter agreed that they should be returned to foster care whilst the police conducted their inquiries.
On 2 March 1998 the local authority commenced care proceedings, which have been transferred to the High Court for hearing. No interim care orders or supervision orders have, however, been made, and the three children, with the mother’s agreement, remained accommodated by the local authority in foster care until August 1998, when, under the local authority’s care plan, they were reunited with their mother, with whom they have remained ever since.
The mother has also moved house. Although initially adamant that she should be accommodated in the area of the local authority which had initiated the proceedings, she has recently moved to the area of a different local authority, ostensibly because she would there be nearer to certain members of her family. There are thus two local authorities involved in the case, and it is common ground that if a supervision order is made it should be made in favour of the second local authority. Both authorities, however, argue for a supervision order, and I heard evidence from the allocated social worker from the second authority.
It is sufficient for the purposes of this judgment for me to record that the...
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Re X and Y (leave to remove from jurisdiction: no order principle)
...(application to remove children from jurisdiction), Re[1999] 2 FCR 410, [1998] 2 FLR 1006, [1998] Fam Law 584. K (supervision orders), Re[1999] 1 FCR 337, [1999] 2 FLR 303, [1999] Fam Law 370. K v K (removal of child from jurisdiction) [1992] 2 FCR 161, [1992] 2 FLR 98, [1992] Fam Law 240. ......