Off the menu? Should care orders at home only be made in exceptionally rare circumstances?

KEYWORDS:

• Child protection
• care order
• care order at home
• supervision order

Re JW (Child at Home under a Care Order) [2023] EWCA Civ 944 is the vehicle, chosen by the President of the Family Division to convert the recommendations of the Public Law Working Group (PLWG) into case law. The President gave the lead judgment endorsing the PLWG’s Report (2021) and its proposals for supervision orders (2023). Allowing the mother’s appeal against care orders for children living at home, the Court stated that only in ‘exceptionally rare circumstances’ should such orders be made. If any order is necessary, a supervision order (SO) should be made, bolstered by a detailed SO plan, as the PLWG proposed.

Three concerns in the Family Justice System form the backdrop to this case: 1) differences in judicial practice, particularly variation in the orders made across England and Wales; 2) the volume of proceedings; and 3) delay – more accurately, the duration of care proceedings. The President referred to the ‘striking’ difference in approach to care orders at home as ‘a hot potato’, stating that ‘such variations cannot continue’ (para 65). The response was to restrict such orders, rather than to provide workable criteria for their use. Replacing these care orders with supervision orders may reduce the demand for court time – almost a quarter of discharge of care order applications relate to children at home throughout the order (Staines et al. 2023). The number of disputed final hearings may decline. However, as the President noted, the failure rate following supervision orders is higher than for other orders; 20% of children with supervision orders experience further care proceedings within five years, increasing the care proceedings workload. More applications to extend supervision orders can be expected and a greater need for private law contact orders. Where there is a care order, contact is managed by the local authority, largely without recourse to the court. If this decision reduces or simplifies care proceedings, it will help courts comply with the statutory, 26 week, time limit. Moreover, failure to resolve a family’s difficulties will be a failure of local authority supervision, not the court making the wrong order.

Factual background

After the mother married P, the local authority informed her that he was subject to a sexual harm prevention order, precluding unsupervised contact with children. She agreed a safety plan and P left the family home. Over the next 8 months the mother was ‘less than fully co-operative’ with the plan, engaging only sporadically, and preventing social work visits and access to her children. This, and her threat to allow P to return, led children’s services to conclude that care proceedings were required. The care application was made in May 2022 with the children remaining at home subject to interim supervision orders; P was allowed supervised contact. In October, after a very negative, independent expert report, P’s contact was stopped, the mother agreed to end her marriage and cut all ties with P, but his contact continued, surreptitiously. At the final hearing in November 2022, the local authority and the Cafcass guardian recommended a care order (CO), with a care plan of placement at home. The mother appealed, arguing that the decision was wrong, or alternatively, that the court should have adjourned to allow her ability to protect the children to become more established.

Decision

The mother’s first ground was accepted, her second roundly rejected. The judge was wrong to have made a CO – it was disproportionate, and the reasoning was inadequate. The Court of Appeal discharged the CO and replaced it with a 12 month SO, to expire in November 2023 a mere 3 months after the judgment was published but almost six months after the appeal hearing.

There are two major problems with the judgment. First, the Court of Appeal failed to consider all the differences between care orders and supervision orders, but instead focussed narrowly on the power to remove. Secondly, the judgment simply adopted the PLWG scheme and did not attempt to translate the test it proposed – ‘rarely and in exceptional circumstances’ - into a form which indicated more clearly when a CO could be made.

The key difference between the two orders is the local authority’s protective power. Under a CO, the local authority shares parental responsibility with the parents and can exercise this, if necessary, to safeguard a promote the child’s welfare. Under a SO, all directions require the parent’s consent. Although the PLWG scheme for SO plans will make it easier for both court and parents to know how the local authority will use the SO, the local authority remains reliant on parental co-operation, not statutory powers. It can only refer the order back to the court for extension or discharge, not enforcement.

Acknowledging that the use of care orders at home had been approved in the early days of the Children Act 1989, the court cited case law on the choice between care orders at home and supervision orders, particularly Hale J’s dicta in Oxfordshire v L [1998] 1 FLR 70. Only the local authority’s need to share parental responsibility remains relevant. The power to remove a child has been limited by procedural controls (Re DE (Child under Care Order: Injunction under Human Rights Act 1998) [2014] EWFC 6) and it has long been accepted that COs cannot be used simply to make the local authority carry out its duties. Nevertheless, the judgment focused narrowly on the vestigial power to remove, giving almost no consideration to the effect of the local authority sharing parental responsibility. This allows the local authority to safeguard the child’s welfare, for example preventing anyone taking action which undermine this and making contact arrangements. It can consent to the child’s vaccination and other health care, ensure regular schooling and access to social activities by permitting this or taking the child, despite objections. In this way the local authority can supplement the position of the parent with care, and control the abusive parent. This could be labelled as ‘support’ but such is only available with a care order. A supervision order would not suffice – the parents’ agreement is required to any local authority directions, leaving the abusive parent’s influence unconstrained.

All orders must be necessary and proportional to comply with the European Convention in Human Rights, article 8(2). The ‘rarely … ’ test is additional, not an alternative. It is a truism that family cases are decided ‘on their own facts’, but this test necessitates comparisons with other cases. It is not sufficient that the risks require a care order and can be managed with the child remaining at home, the court must be satisfied that the circumstances are rare in the extreme. Without such a restriction, judges could continue to make orders that they consider necessary and proportional. Those who do so now must expect to be reversed on appeal. Casting the test in such uncompromising terms will ensure that it is closely policed by parents’ lawyers. Re JW has effectively taken care orders at home off the Children Act 1989 menu.

Short-term consequences

This decision, like Re B-S [2013] EWCA Civ 1146, will result in numerous appeals, including some out of time. The Court of Appeal’s focus on the publication in the PLWG’s proposals in 2021 means that judges should have considered, expressly, the need for a care order, despite the absence of statute or case law implementing this guidance. These appeals will add to the workload of the circuit bench and that of the Court of Appeal.

Longer-term consequences

The assumption behind the PLWG proposals is that making supervision orders work depends on a good plan by the local authority, closely scrutinised by the court. This fails to acknowledge the relational nature of social work; improving parenting and family circumstances depends on the ability of the worker to create the basis for an effective relationship, and the capacity of the parents to develop from that. Supervision orders are ‘coalitions for the willing’ which can be disrupted by workers, by parents themselves, and by external forces. It is far from clear that removing the alternative of a care order will make parents more willing to work with social workers. Knowledge gained through a pilot study exploring how to make the PLWG’s Best Practice Guidance work would have assisted practitioners and provided the basis for a clearer test for which order to make.

Pressures on parents with supervision orders will come from partners and ex partners. Parents with care will be left to manage contact and harassment in the private law system, representing themselves, either because they do not qualify for public funding or because they cannot find a lawyer to represent them. Many who might have been supported by the local authority’s power will have to manage without effective court orders. As with much law reform, an idea rooted in good-will clashes with the reality of family life.

Unless local authorities can make supervision orders work in all cases where the courts expect them to, they will increasingly seek ways to protect children without the recourse to the courts. If this means that the threshold for care proceedings rises, it will be welcomed by some professionals. However, supervision orders will not have become more effective, rather more cases will be diverted from court. Another provision of the Children Act 1989 will become redundant, further depleting the menu of orders. In some circumstances local authorities may simply seek findings on the threshold, which would support future proceedings if required. Alternatively, they might avoid having to seek leave to withdraw by proposing an order of no order. Parents are unlikely to appeal such an outcome, but Cafcass may press for a supervision order and plan.

Using s.20 (or Social Services and Well-being (Wales) Act 2014, s.76) will become a more attractive option, establishing partnerships with parents to look after children (away from home) without recourse to the courts. This may not be what the courts intend, but it will restore the balance between voluntary and compulsory action which has been distorted (in the opposite direction) by judges.

Beyond this, the Court of Appeal appears to have created a new source of law. They have allowed an appeal on the basis of published reform proposals that have neither been enacted nor incorporated in case law. This form of boot-strapping, which undermines the rule of law, should be discouraged. The fact that the proposals originated in a group established by the President and chaired by a judge makes it worse, not better.

Disclosure statement

No potential conflict of interest was reported by the author(s).