T (A Child) (Supervision Order: Duration)
| Jurisdiction | England & Wales |
| Judgment Date | 2008 |
| Date | 2008 |
| Court | Court of Appeal (Civil Division) |
Family proceedings – Orders in family proceedings – Care or supervision order – Supervision order – Whether permissible to make three-year supervision order at outset – Children Act 1989, Sch 3, para 6.
The local authority brought proceedings in the county court, seeking a supervision order pursuant to s 31 of the Children Act 1989 in respect of a child, T, born in February 2005. The risk to the child related to her maternal grandmother’s 55-year-old partner, who had a long criminal record of sexual offences. It was not disputed that he was likely to remain a danger even to a child as young as T. If the danger was not indefinite, it would certainly run until T was better able to protect herself. The judge made a supervision order for three years, considering that T’s welfare required an order of that duration. The father appealed, supported by the mother.
The issue on the appeal was whether the judge had the power to make a three-year supervision order. It was submitted for the father that the words of para 6 of Sch 3 to the Children Act 1989 were clear, and that para 6(1) did not permit the making of a supervision order for three years from the outset; and that it was abundantly clear from the provisions which para 6 replaced, namely s 17 of the Children and Young Persons Act 1969, that the legislative intention was to curtail to some degree the powers of the court. It was submitted for the local authority and the child’s guardian that, whilst the clear words of para 6(1) could not be circumvented, if the supervisor applied for an extension immediately after the judge had made a supervision order which complied with para 6(1), the court could immediately extend it for up to two further years under the provisions of para 6(3) and (4).
Held– The making of a three-year supervision order from the outset was not permitted by para 6(1) of Sch 3 to the 1989 Act. The solution put forward on behalf of the local authority and the guardian amounted to an impermissible circumvention of the plain language of para 6(1). The artificiality of an almost immediate application for the extension of the basic order was self-evident. The outcome would be the frustration of the clear legislative intention to reform the pre-existing law, which had expressly granted jurisdiction to impose a supervision order of three-year duration. Re A (A Minor) (Supervision Order: Extension) [1995] 2 FCR 114 applied.
The difficulties that remain on an adoption of [that] construction must be recognised. If the court in initiating supervision may not look beyond twelve months a jurisdiction to impose a two-year extension appears illogical, although this is clearly permitted by para 6(4). Then if an application to extend cannot be made immediately or shortly after the making of the original order when can it first be issued? Such difficulties stem from the absence of any date by which an application to extend must be made or any date before which such an application may not be made. The absence of such a provision seems particularly surprising given that Pt II [of Sch 3] dealing with supervision orders is immediately followed by Pt III dealing with education supervision orders. Paragraph 15 deals with the duration of such orders. Amongst its detailed provisions states in sub-para (3) that an extension application ‘may not be made earlier than three months before the date on which the order would otherwise expire’. [The court] would fill the void in para 6 by suggesting a like practice in relation to supervision orders. The appeal would be allowed.
Cases referred to in judgmentsA (A Minor) (Supervision Order: Extension), Re[1995] 2 FCR 114, [1995] 3 All ER 401, [1995] 1 WLR 482, [1995] 1 FLR 335, CA.
M (Intractable contact dispute: Interim care order), Re[2003] EWHC 1024 (Fam), [2003] 2 FLR 636.
AppealThe father appealed with permission from Judge Peter Hunt against his decision in Leeds County Court on 31 October 2007, against the supervision order of three years’ duration, on the grounds that para 6(1) of Sch 3 to the Children Act 1989 did not permit the making of a supervision order for three years from the outset and that the legislative intention was to curtail to some degree the powers of the court. The facts are set out in the judgment of Thorpe LJ.
Eleanor Hamilton QC and Stephen Switalski for the father.
Anthony Hayden QC for the local authority and the guardian.
THORPE LJ.[1] This appeal, for which Judge Peter Hunt gave permission, requires the construction of the statutory provisions contained in the Children Act 1989 (the 1989 Act) governing the duration of supervision orders. The question arose in public law proceedings in the Leeds County Court brought by the City of Wakefield Metropolitan District Council to determine the future of a little girl, A, born in February 2005. The point of construction was considered by the judge in the course of his judgment of 31 October 2007. Before the court were the council and A’s parents, separately represented, and A’s guardian. At the end of his judgment Judge Hunt acceded to the application for permission to appeal advanced by Mr Switalski for the father. In this court the father was represented by Miss Eleanor
Hamilton QC leading Mr Switalski. She told us that her appeal was supported by the mother. The respondent’s to the appeal, the council and A’s guardian were represented by Mr Anthony Hayden QC.
[2] Supervision orders are very commonly made under the statutory provisions contained in the 1989 Act. Usually they are made where there is a real risk that the child’s carers, ordinarily the child’s parents, will fail or falter unless supported by a supervisor. Thus the supervision order where the risks indicate the need for statutory intervention is less intrusive than a care order.
[3] This is not such a case. The capacity of A’s parents to provide good enough parenting is not in question. The risks relate to a single member of the extended family, namely the maternal grandmother’s 55-year-old partner. He has a long criminal record for sexual offences and it is not disputed that he is and...
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Re T (Care Order)
...(Care or Supervision Order), Re[1993] 2 FCR 193, [1993] 2 FLR 919. T (a child) (supervision order: duration), Re[2008] EWCA Civ 199, [2008] 3 FCR 319, sub nom Wakefield Metropolitan District Council v T [2009] Fam 1, [2008] 1 FLR 1569, [2008] 3 WLR 1316, T (A Minor) (Care Order), Re[1994] 1......