Care Orders vs Supervision Orders for Children Placed at Home

Introduction

For the first time in many years, the Court of Appeal in 2023 looked at the type of order, if any, under which a child should be placed at home in JW (Child at Home under Care Order) [2023] EWCA Civ 944[1].

Case Law and Legal Principles

Until the Court of Appeal revisited this area in JW, the last time that the topic had been, albeit tangentially, considered by the Court was in Re DE (Child under Care Order: Injunction under Human Rights Act 1998) [2014] EWFC 6; [2018] 1 FLR 1001.

Baker J held that, unless the need to remove arises as an emergency, a local authority considering removal should give notice to the parents, who may then make an application to the court to hold the situation via either an application to discharge the care order or a HRA 1998 injunction, or both. The decision to remove a child should only be made after a ‘rigorous analysis of all of the realistic options’ (in a similar manner required by the Supreme Court in Re B [2013] UKSC 33 when adoption is being considered). Baker J set out guidance on the approach to be taken where a local authority is proposing to remove a child, who is the subject of a care order, from home at paragraph 49 of the judgment.

[28] of JW sets out a helpful summary of the statutory scheme and case law:

1. making a care order with a subject child placed at home in the care of their parent(s) is plainly permissible within the statutory scheme and express provision is made for such circumstances in CA 1989, s 22C and in the placement regulations;
2. the early post-CA 1989 authorities established that a care plan for placement at home was an appropriate outcome where the facts justified it, without the need for exceptional circumstances;
3. the analysis of Hale J/LJ in Oxfordshire and in Re O laid particular weight upon the need for the authority to have power to remove the child instantly if circumstances required it, or to plan for the child to be placed outside the family;
4. since Oxfordshire and Re O, the High Court decision in Re DE, containing guidance endorsed by the President, has been widely accepted so that, in all but a true emergency, the local authority power to remove a child from their home under a care order should not be exercised without giving parents an opportunity to bring the issue before a court;
5. the difference concerning removal of a child from home either under a care order or where there is no care order is now largely procedural. In all but the most urgent cases, the decision on removal will ultimately be taken within the umbrella of court proceedings, rather than administratively within a local authority;
6. sharing of parental responsibility by the local authority with parents is an important element, but, as Hale J/LJ stressed, the fact that considerable help and advice may be needed over a prolonged period is not a reason, in itself for making a care order;
7. it is wrong to make a care order in order to impose duties on a local authority or use it to encourage them to perform the duties that they have to a child in need;
8. the protection of the child is the decisive factor, but proportionality is key when making the choice between a care and supervision order for a child who is placed at home;
9. supervision orders should be made to work, where that is the proportionate form of order to make.

President’s Public Law Working Group Guidance

In March 2021[2], the report at paragraphs 158 – 162 dealt with the making of care orders where children are placed at home. Key parts of those paragraphs are:

• There is a risk that the making of a care order at home provides false assurances to partner agencies because the local authority is neither involved in, nor has a thorough oversight of, the child’s day-to-day care.
• The making of a care order should not be used as a vehicle to achieve the provision of support and services after the conclusion of proceedings. Unless a final care order is necessary for the protection of a child, an alternative means/route should be made available to provide this support and these services without the need to make a care order.
• Supervision Orders may be appropriate, but there are concerns of their use. They have a higher (20%) risk of breakdown and return to court for further care proceedings within 5 years.
• A final care order should not be used as a method prematurely to end proceedings within 26 weeks artificially to alleviate concerns that the children will be at continuing risk of harm. The order should only be made whether the local authority can demonstrate that the assessment of any carer of a looked after child meets the criteria of the regulations.
• A final care order has an intrusive effect of state intervention, not only for the parents but also for the child. It can only be justified if it is necessary and proportionate to the risk of harm to the child.

Appendix F of the report sets out the best practice guidance (paragraphs 34 – 37) where a care order is sought but the child is to be placed at home:

• There should be exceptional reasons for the court to make such an order.
• It should not be used as a vehicle for the provision or support or services.
• The risks of significant harm to the child are either adjudged to be such that the child should be removed from the care of her parents/carers, or some lesser legal order and regime is required. Any placement with parents under an interim or final order should be evidenced to comply with the statutory regulations for placement at home.
• It should be considered to be rare in the extreme that the risks of significant harm to the child are judged to be sufficient to merit the making of a care order but, nevertheless, the risks can be managed with a care order being made in favour of the local authority with the child remaining in the care of the parents/carers. A care order represents a serious intervention by the state in the life of the child and in the lives of the parents in terms of their respective ECHR, article 8 rights. This can only be justified if it is necessary and proportionate to the risks of harm of the child.

The PLWG in their report and recommendations placed emphasis on the need for proportionality when considering the necessity for a child placed at home under a final care order. This in turn caused the Court of Appeal in JW to find that there needs to be ‘exceptional reasons’ to justify the making of a care order for a child who is to be placed at home as a long-term care plan.

Paragraph 37 of JW is key;

‘It should be considered to be rare in the extreme that the risks of significant harm to the child are judged to be sufficient to merit the making of a care order but, nevertheless, the risks can be managed with a care order being made in favour of the local authority with the child remaining in the care of the parents/carers. A care order represents a serious intervention by the state in the life of the child and in the lives of the parents in terms of their respective ECHR, article 8 rights. This can only be justified if it is necessary and proportionate to the risks of harm of the child.’

In April 2023 a further report was published (Recommendations to achieve best practice in the child protection and family justice systems: Supervision Orders)[3]. The key provision within this report is contained with Appendix C. The key change is the expectation that, in every case where a supervision order may be made, the local authority will prepare a clear and detailed Supervision Support Plan[4] which is tailored to the needs of the child. It also requires that the plan should be clear as to the provision of resources to underpin each element of the plan, and that the plan should be seen as a living instrument and be kept under formal ‘robust’ review during the life of the supervision order:

‘In every case where a Supervision Order may be made, the local authority will prepare a clear and detailed Supervision Support Plan which is tailored to the needs of the child. The guidance also requires that the plan should be clear as to the provision of resources to underpin each element of the plan, and that the plan should be seen as a living instrument and be kept under formal ‘robust’ review during the life of the Supervision Order.’

Conclusion

Following the decision in JW, it is anticipated that the number of final care orders for children placed at home will drop significantly. As practitioners, it is important to analyse the facts of each case where such a care plan is proposed, to identify whether there are ‘truly exceptional’ circumstances that justify the same. Where a case is to be concluded by way of a supervision order, it is essential that the support plan is a comprehensive document that sets out exactly what the parents can expect the local authority to do to support the family in making the placement successful, and vice versa.

[1] https://www.judiciary.uk/wp-content/uploads/2023/08/JW-Children-judgment-040823.pdf

[2] https://www.judiciary.uk/wp-content/uploads/2021/03/March-2021-report-final_clickable.pdf

[3] https://www.judiciary.uk/wp-content/uploads/2023/04/April-2023-Report-Supervision-Orders-Final.pdf

[4] https://www.judiciary.uk/wp-content/uploads/2023/04/Annex-A-Supervision-Order-Plan.pdf