Court of Appeal: Farewell to Care Orders At Home?
Family Law Solicitor, Melissa Knight, discusses how a recent Court of Appeal decision has attracted a lot of debate regarding Care Orders and Supervision Orders in her latest blog…
There has been a recent Court of Appeal decision which highlighted some quite stark regional differences in the approach taken by Courts and practitioners when considering whether it is appropriate for a Care Order to be granted. These are circumstances whereby the child has either remained in the family home or been rehabilitated back to parents.
It has become apparent that Family Courts in the Northern and Western regions are more likely to agree to a child being placed at home under a Care Order (which means a Local Authority would share parental responsibility with parents) whereas Courts in the South and East are more likely to agree to a Supervision Order (a less serious order whereby the Local Authority support, befriend, advise and assist the family) being granted or no public law order at all. It is an interesting dilemma which has attracted a lot of debate between the judiciary and family law practitioners in respect of which approach is the correct one and why is geography dictating serious intervention in family lives.
Child at Home Under Care Order
In the case of Re JW (Child at Home under Care Order) [2023] EWCA Civ 944, the Court of Appeal considered an appeal in relation to where a final Care Order was granted and the children remained in their mother’s care. This gave rise to an assessment of how these sorts of cases were being dealt with by the judiciary across England and Wales.
In this particular case, there were three children involved. The mother had married a man who was convicted for possession of indecent images of children however did not realise this until after they had married. She did separate from her husband but the Local Authority were worried that she had been allowing him to have contact with the children and that there was a risk she would continue to do so once the proceedings concluded. The local Family Court made a Care Order with a plan for the children to remain living with their mother so the Local Authority could share parental responsibility. The children’s mother appealed and argued that the Court should have extended the proceedings and completed a more in-depth assessment of whether she is able to protect the children from the risk that her ex-husband posed. The Court granted the appeal however chose to make a final supervision order as opposed to extending the proceedings.
The judgment is a wonderful and succinct summary of the law relating to whether a Care Order or Supervision Order is the most appropriate order to make in family law cases. The Court of Appeal were led by the President of the Family Division and therefore the judgment factors in the recent Public Law Working Guidance on this very issue which concludes that really Courts should be deviating away from the use of Care Orders at home. This should only be happening in exceptional cases. Some key points arising from the guidance include:-
• The current situation in which the law is applied in a markedly different manner in two halves of England and Wales cannot continue and there needs to be a common approach
• If the making of a care order is intended to be used as a vehicle for support and services, that is wrong
• Consideration should be given to the making of a Supervision Order which can support the reunification of a family
• It should be considered rare that the risks of significant harm to the child are judged to be sufficient to merit the making of a Care Order
• A Care Order represents a serious intervention by the state in the life of the child and parents in relation to their article 8 ECHR rights which can only be justified if it is necessary and proportionate to the risks of harm to the child (a phrase we often hear in public law judgments)!
Conclusion
It will certainly be interesting to see whether the regional variation remains in light of the recent case law and Public Law Working guidance. If followed correctly, we should be seeing a reduction of Care Orders at home across all of England and Wales. This will mean there is a shift towards Supervision Orders if children are being rehabilitated at home in care proceedings or even an increased use of the “ no order” principle if Local Authorities feel that the risks can be mitigated by child protection or child in need planning.
I have recently had two care proceedings cases conclude whereby no Public Law Orders have been made at the final hearing stage so it does appear that we are starting to see the shift in practice locally.
November 2023