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August 29, 2023

The recent Court of Appeal decision in JW (Child At Home Under Care Order) [2023] EWCA CIV 944 is a welcome reminder to family practitioners and courts across England and Wales of the approach to be taken and applied when considering making a final supervision order or care order. The judgement also provides an important summary of the principles to be contemplated in each specific case.

Having carefully considered the March 2021 Public Law Working Group [PLWG] report and its findings, what struck the Court of Appeal was the distinct contrast in the North and South of England and Wales approach to the making of a care order at home. Sir Andrew McFarlane described the situation as a ‘’hot potato’’ and one that ‘’cannot continue’’. As it stands, broadly courts north and west of Hull down to Bristol will often make a care order, in contrast to courts South and East where normally a supervision order or no public law order will be made. The Court of Appeal stressed that there needs to be a ‘’common approach’’ applied throughout England and Wales.

The PLWG report identified and 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 states that it will: ‘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.’

On the other hand and what should be borne in mind, is the same PLWG report also identified that final supervision orders have the highest (20%) risk of breakdown and likelihood of returning to court for further court proceedings within five years. It further stated that there are widespread professional concerns that supervision orders ‘lack teeth’ as well as significant regional variation. This is of particular importance 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 PLWG recommendations and guidance were reduced by the Court of Appeal to the following short points:

a) a care order should not be used solely as a vehicle to achieve the provision of support and services after the conclusion of proceedings;

b) a care order on the basis that the child will be living at home should only be made when there are exceptional reasons for doing so. It should be rare in the extreme that the risks of significant harm to a child are judged to be sufficient to merit the making of a care order but, nevertheless, as risks that can be managed with the child remaining in the care of parents;

c) unless, in an exceptional case, a care order is necessary for the protection of the child, some other means of providing support and services must be used;

d) where a child is to be placed at home, the making of a supervision order to support reunification may be proportionate;

e) where a supervision order is being considered, the best practice guidance in the PLWG April 2023 report must be applied. In particular, the court should require the local authority to have a Supervision Support Plan in place.

The specific facts in JW (Child At Home Under Care Order) were that the local authority and children’s guardian had proposed and supported the making of a final care order and for the children to remain at home with their mother. The risk of sexual harm to the children came from the 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. He had also been made the subject of a Sexual Harm Prevention Order prohibiting him from having unsupervised contact with children. The expert psychologist, Professor Gray, completed a report that concluded there were significant risks posed by the mother’s partner and she recommended that the mother should cut all ties with him. The mother’s ability to do this was what concerned the local authority and the children’s guardian. In submitting her appeal, the mother to summarise, argued a final care order was not a proportionate order in circumstances where the children had been under interim supervision orders for the duration of the care proceedings and the local authority had indicated the final plan for monitoring and support of the family would be the same under either type of order.

The Court of Appeal held the Judge at first instance was in error in holding that this case was ‘’exceptional’’ and that a care order was the proportionate and necessary order to be made. It allowed the appeal and made supervision orders for all three children for a period of 12 months and directed the local authority to file supervision support plans.

Following this decision, it will be interesting to see how courts across England and Wales apply the principles identified in this judgement and whether the ‘’hot potato’’ will finally cool, or indeed whether more questions arise as to what the practical realities of making either order are and what risks are more or less likely to tip the balance in favour of making a care order at home or a supervision order.

Yasmine El-Nazer