In Public Law Proceedings, Where The Final Care Plan Is For A Child To Remain At Home With Their Parent(s), Should The Court Make A Care Or Supervision Order?

• Published date: 23 August 2023
• Subject Matter: Litigation, Mediation & Arbitration, Court Procedure, Trials & Appeals & Compensation
• Law Firm: Deka Chambers
• Author: Ms Madeleine Miller

The court allowed this appeal, making supervision orders in place of care orders for the children who are placed at home. The court addressed the fact that this issue was being approached differently based on whether the court was North or West, or South or East, of an imaginary line between Hull and Bristol.

Practitioners will be familiar with the 2021 Public Law Working Group ('PLWG') Guidance. The President of the Family Division Sir Andrew McFarlane's judgment in JW (Child at Home under Care Order) [2023] EWCA Civ 944 puts that guidance on a footing with the caselaw and clarifies that, in a case where the risk is slow burning and the plan for monitoring and support is the same under either a care or supervision order, and where any attempt to remove the child would be likely to lead to further court proceedings in any event, there is nothing that making a care order would add to the local authority's ability to provide protection.

Sir Andrew McFarlane said at paragraph [55]: "There needs to be a common approach throughout England and throughout Wales. What that common approach should be has been determined through consultation and discussion by the multidisciplinary membership of the PLWG. The recommendations at paragraphs 158 to 162, and the Best Practice Guidance at paragraphs 34 to 37, of the PLWG March 2021 report, and Appendix C of the April 2023 report on supervision orders, which have already had extra-curial endorsement, I now formally endorse in a judgment of this court. They must be applied in all cases."

Facts

The case concerned three children whose mother married a 'Mr P' in 2021. After they were married, social services informed the mother that Mr P had a conviction for possessing a large number of indecent images of children, and was prohibited from having unsupervised contact with children.

While the mother initially agreed that Mr P should move out, the local authority became concerned that she was not adhering to the safety plan, and that they were having unauthorised contact with Mr P. The mother's engagement with the local authority was sporadic, and at times she prevented social work visits and did not allow the children to speak to professionals. She began threatening to move Mr P back into the family home.

The local authority brought care proceedings. The children remained at home with the mother under an Interim Supervision Order. An expert psychologist concluded that Mr P posed a significant risk, and recommended that the...