Re O (Minors) (Care or Supervision Order)
| Jurisdiction | England & Wales |
| Judgment Date | 23 April 1996 |
| Court | Family Division |
HALE, J
Care proceedings – local authority applying for supervision orders in respect of six children of a family – local authority not proposing to remove children from home – magistrates making care orders – whether care orders appropriate – factors to be taken into account.
The parents had seven children. The eldest was 17 and the others were aged from 9 to 2. There had been long standing concerns from health professionals about the children's development and certain health needs which had not been properly addressed. In June 1995 the local authority began care proceedings in respect of the six younger children. Interim supervision orders were made and the substantive hearing took place in March 1996 before a family proceedings court. It was conceded that the threshold criteria in s 31 of the Children Act 1989 were met as the children had suffered emotional and physical deprivation and a lack of stimulation resulting in developmental delay. However, by and large the children's educational needs were being met, the parents loved them, there were attachments between them and the children and between the children themselves, and the present standards within the home were satisfactory. In those circumstances the local authority applied for supervision orders. They had no intention of removing the children from their home but wanted to maintain the progress which had already been made in working with the family. The guardian ad litem wanted the magistrates to make care orders so that the local authority could share parental responsibility with the parents. The magistrates made the care orders.
The parents appealed.
Held – allowing the appeal: (1) the magistrates had misdirected themselves in law in that in their reasons they had stated that "in reaching our decision we have put the needs of the children as our paramount consideration"; once the threshold criteria had been established it was the welfare of the children, not their needs, which was the paramount consideration. Further, the one main issue in this case was whether, given that the children were to remain living with their parents, their welfare would be better served by the making of supervision orders or care orders and there was at least one mistake and some gaps in the magistrates' reasons stating the comparative advantages and disadvantages of care and supervision orders in general. Although the court was free to make a different order from that applied for by the local authority under s 31(1) of the Children Act 1989 and thus impose upon the local authority an order other than that for which they had asked, there should be very cogent reasons for doing so. The question of the children's interests should
be approached from the point of view exemplified by s 1(5) of the 1989 Act that, when considering whether to make any order, the court was not to make an order unless it considered that doing so would be better for the child than making no order at all. The court should begin with a preference for the less interventionist rather than the more interventionist approach. The magistrates had erred in stating that the care order would give the court an "ongoing opportunity to assess the care and welfare of the children" which a supervision order would not, whereas the reverse was the case. Also the magistrates had indicated that if care orders were made s 22(3)(a) of the 1989 Act would place a duty on the local authority to safeguard the welfare or the children. Under s 17(1)(a) of the 1989 Act the local authority had a general duty to safeguard and promote the welfare of children in their area who were in need. There was a considerable distinction between the two provisions, the duty under s 22 being towards the individual child being looked after by the local authority and that under s 17 being to the community of children in their area. Nevertheless, where there were children whose needs had clearly been identified by the local authority they would obviously regard themselves as being under a duty to do what they could to ensure those needs were met, particularly when it was borne in mind that paras 4 and 7 of sch 2 to the 1989 Act placed duties on local authorities to take reasonable steps to prevent children suffering ill-treatment and neglect and to reduce the need to bring proceedings for care and supervision orders.
(2) When balancing the various factors in the case, the magistrates had given four reasons in favour of a care order rather than a supervision order. First, they had given undue weight to the fact that the parents had not given evidence even though it had been agreed between the advocates that there was no need for them to do so. If the magistrates were going to attach weight to this in their reasons they should, at the very least, have mentioned it so as to give the parents an opportunity of dealing with it. Second, the magistrates intimated that the local authority's care plan was incomplete through lack of co-operation by the parents without considering whether the gaps were material. Third, they were not satisfied the local authority would take the case back to court if problems remained even though a social worker had given evidence that if the supervision order did not work the local authority would come back to court. If the magistrates were going to reject the clear evidence of the social worker they should have stated why in their reasons. Fourth, they expressed the view that the parents would actively build barriers between themselves and the local authority when, although there was evidence of the parents not accepting the local authority intervention, it was going too far to say that was actively building barriers. On the other hand, the magistrates had not given sufficient weight to other factors: first, the improvements in the condition of the children which had taken place in the course of the proceedings; and second, evidence of the parent's co-operation. Thus, the magistrates had given insufficient weight not only to the improvement in parental co-operation but also to the intensification of the local authority's effort over the past few months.
(3) Having regard to all the above factors the exercise of the magistrates' discretion was fundamentally flawed. They should have been prepared at least to see what the effect of supervision orders would be before going straight to the most Draconian order which was permitted under the 1989 Act. Supervision orders would be substituted in respect of the children.
Statutory provisions referred to:Children Act 1989, ss 1, 17, 22, 31 and 94: and sch 2, paras 4 and 7.
Cases referred to in judgmentAssociated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223;
B (Care or Supervision Order), Re[1997] 1 FCR 309.
D (A Minor) (Care Proceedings: Appropriate Order), Re[1993] 2 FCR 88.
F (A Minor) (Wardship: Appeal), Re [1976] Fam 238; [1986] 2 WLR 189; [1976] 1 All ER 417.
G v G (Minors: Custody Appeal) [1985] 1 WLR 647; [1985] 2 All ER 225.
M (A Minor (Contact), Re[1995] 2 FCR 435.
M v Westminster City Council [1985] FLR 325.
S(J) (A Minor) (Care or Supervision Order), Re[1993] 2 FCR 193.
T (A Minor) (Care order), Re[1994] 1 FCR 663.
David Jones for the parents.
Sally Cahill for the local authority.
Amanda Ginsburg for the guardian ad litem.
MRS JUSTICE HALE.This is an appeal against the decision of the Bradford family proceedings court on 13 March 1996. The court made care orders relating to six children: M, a boy, who was born on 7...
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