The Court could make a Supervision Order or Care Order, what approach needs to be applied by the Court when considering these Orders?

The recent decision in the Court of Appeal in the case of JW (Child at home under Care Order) [2023] EWCA CIV 944 is a reminder of the approach that should be taken when considering making final Supervision and Care Orders. The judgement provides a summary of the important principles to be considered in each specific case.

The March 2021 Public Law Working Group [PLWG] report highlighted a distinct contrast in the North and South of England and Wales approach to the making of a Care Order at home. As it currently stands Courts North and West of Hull down to Bristol often made a Care Order, compared to Courts South and East where normally a Supervision Order or no public law orders were made. The Court of Appeal stressed that there needs to be a common approach applied throughout England and Wales.

The Court of Appeal acknowledged the need for exceptional reasons to justify the making of a Care Order with a plan for the child to live at home and stated that it will be rare that the risks of significant harm to the child are judged to be sufficient in granting a Care Order but, nevertheless, the risks can be managed with a Care Order being granted in the Local Authority’s favour but with the child remaining at home in the care of their parents/carers.

The PLWG report also identified that Supervision Orders had the highest risk (20%) of breakdown and returning to Court for further Court Proceedings within five years. It stated that professionals across the country have concern for the ‘lack of teeth’ that Supervision Orders have. This is important when considering the specific risks in each family and what tips the balance in favour of recommending a Care Order over a Supervision Order.

The recommendations and guidance from the PLWG were put into the following points by the Court of Appeal:

1. A Care Order should not be used as the only provision of support and services after the conclusion of proceedings.
2. A Care Order with the child living at home should only be made when there are exceptional reasons for doing so.
3. Unless a Care Order is necessary for the protection of the child, other means of providing support and services must be used.
4. The making of a Supervision Order should be proportionate to support reunification where a child is to be placed at home.
5.  The best practice guidance can be found in the PLWG April 2023 and must be applied where a Supervision Order is being considered. The Local Authority should be required to have a Supervision Support Plan in place.

The facts in JW (Child at home under Care Order) [2023] EWCA CIV 944 were that the Local Authority and Children’s Guardian had supported the making of a Final Care Order for the child to remain at home with their mother. The risk of sexual harm to the children came from mother’s husband who prior to the marriage had been convicted of offences of making and possessing a large number of indecent images of children. The expert psychologist concluded that there were significant risks posed by the mother’s partner and recommended that mother cut all ties with him. The Local Authority’s concern was mother’s ability to do this. On appeal, the mother argued that the children had been under Interim Supervision Orders for the duration of the proceedings. The Local Authority had also indicated that the final plan for monitoring and support would be the same under either type of Order.

The Court of Appeal allowed the appeal and made Supervision Orders for all of the children for a period of 12 months and directed the Local Authority to file supervision support plans. The Court of Appeal held that the Judge had erred by holding this case as exceptional and finding that a Care Order was proportionate and necessary.

How can Johnson Astills help?

If you have Local Authority involvement with your children at Child Protection level ranging through to Care Proceedings in the Family Court, then Johnson Astills can assist you. We have experience in assisting parents at all stages of Local Authority involvement. Please contact Johnson Astills at either our Leicester office on 0116 255 4855 or our Loughborough office on 01509 610 312 and ask for a member of the Care Team so that we can advise you accordingly.