A Judgment of HHJ Bellamy in Leicester has been published recently, which looks at the crucial differences between placing a child at home under a care order versus placing a child at home under a supervision order. As it is a judgment of a Circuit Judge it is not binding on other judges, but it is a useful case to use to look at the distinction between care and supervision orders – and contains quite a useful summary of the relevant authorities (older cases that ARE binding).

You can read the judgment in full here : Re FC (A Child: Care or Supervision Order) [2016] EWFC B90 (16 November 2016).

The basic facts

The case concerned a child aged 16 months at the time of judgment. The mother had learning difficulties and all of her previous children had been removed from her care. However, the local authority which had issued the case had concluded that this child should remain at home with her parents under a supervision order. They had prepared a final care plan and a final supervision plan, which were almost identical – the support plan in each was the same.

Everyone in the case agreed the child should remain with her parents. But the Guardian for the child argued that a care order was necessary. She was worried in particular how the parents would manage as JC turned from a baby into a toddler and older child, when the demands are very different. She was also worried that the services (and funds) required to support the placement wouldn’t be available under a supervision order – and a supervision order wouldn’t last long enough. She felt that the local authority would need to be involved throughout JC’s childhood, which a supervision order wouldn’t ensure.

The Local Authority and parents argued that a supervision order was the proportionate and appropriate order to make. The District Judge disagreed and decided that a care order should be made. The Local Authority appealed (the parents supported the appeal).

HHJ Bellamy’s judgment is the decision on that appeal. He went through the background and the reasons given by the District Judge, confirmed that she had weighed up the correct factors, and upheld her decision to make a care order.

Could the court make a care order?

Everyone agreed that the child should remain at home and that an order should be made. Everyone agreed the “threshold” had been crossed (the judgment doesn’t set it out but this would either be because the child had suffered significant harm due to the care of her parents, or because (based on the background) there was a risk that she would do so if a care or supervision order wasn’t made. Once this test is met it is open to the court to make either a care order or a supervision order – and it can make a care order even where the local authority is only asking for a supervision order, or a supervision order even where the local authority is asking for a care order. Everyone agreed the court could make a care order whilst still allowing the child to remain at home. The question was whether it should.

It’s probably worth setting out a scenario that didn’t apply in this case to avoid confusion : What a court can’t do is tell a local authority what can be in its care plan i.e. what it should do with its care order. In this case the local authority had filed a care plan just in case, and it was clear from this plan that it would not remove the child – but in many cases the care plan is for removal, so the judge doesn’t have an option for a care order at home – the furthest a judge can go is to refuse to make an order until the local authority reconsiders its plan, in the hope that it will say “OK, we’ll place the child at home if you make the care order”. If the local authority won’t budge, the judge must choose – stay at home but with no care order, or – if a care order is necessary – then the court must accept the plan put before it.

Care order at home compared to supervision order at home

HHJ Bellamy confirmed that there is no “checklist” of criteria for the making of a care order, but the important distinctions between the two types of order must be borne in mind when deciding what is the right order for the particular child in each case.

Firstly, the order made must be a proportionate interference with the family’s rights to private and family life (Article 8 ECHR). An order won’t be proportionate if a lesser order will do the job of protecting the child’s welfare.

Secondly, the biggest difference between a care and a supervision order is that a care order grants the local authority parental responsibility for the child, meaning that it can take decisions for the child and override the wishes of the parents. The most obvious example of a local authority using its parental responsibility to override the wishes of the parents is the removal of a child from the care of its parents. In this case the local authority didn’t want or need that power. It was suggested in the course of the appeal that a care order would have allowed the local authority at some point to change its plan and remove the child without coming back to court and that therefore the care order was an unnecessary interference in the autonomy of the family. But this is simply wrong in light of the Human Rights Act and the decision of Baker J in Re L-A (Children) [2009] EWCA Civ 822, which confirms that a removal of this sort (except in genuine emergency) would be unlawful (see 63 of the Bellamy judgment for more on this).

Thirdly, the fact that it grants a local authority parental responsibility means that a care order places significant obligations upon a local authority as a “Corporate parent” of a child. They have duties in respect of the provision of services to the child and family. But in this case the LA had said they were going to provide these services anyway. (It is fair to say though that sometimes when a supervision order lapses a family can fall off the edge of a cliff as far as services, support and monitoring go – but the LA was saying that wouldn’t happen in this case so again this wasn’t a reason for a care order).

Fourthly, a child under a care order will be treated as “looked after” (even if living with parents, as effectively the local authority is allowing them to continue caring). This means that they will have the protection of at least 6 monthly LAC Reviews (Looked After Child Reviews – sometimes now called Child in Care or CIC Reviews), and an Independent Reviewing Officer (IRO) to monitor how the LA is doing.

Fifthly, a care order will last (unless it is discharged) for the whole of a child’s childhood. A supervision order lasts for up to a year, and can be extended annually for a maximum of three years. So for a child as young as FC a supervision order could not last for the rest of her childhood or anything like it.

The following paragraphs (96 and 97) neatly sum up why HHJ Bellamy thought the District Judge had correctly made a care order :

Every case is fact specific. In this case the background history of both of these parents gives cause for significant concern. The mother has learning difficulties. FC is the mother’s sixth child. Her inadequate care of each of her first five children led to them being removed from her care. Four of them have since been adopted. The father has a significant criminal record. He is known to have been a perpetrator of domestic violence in previous relationships and to have abused drugs and alcohol. Since they have been in a relationship together the police have been called out to the parents’ home on four occasions as a result of allegations of domestic violence. 

Against that background the District Judge identified two key concerns – risk of harm and protection from harm. As for risk of harm, the District Judge came to the conclusion that the risks in this case ‘are real and significant’. As for protection from harm, the District Judge had in mind the detail of the support plan, the fact that the support plan had scarcely begun to be implemented, the uncertainties of the parent’s ability to engage with the support plan, the considerable length of time for which support was likely to be required and the significant efforts that had been required to persuade the local authority to put in place such a detailed support plan in the first place. I do not accept that the District Judge gave too much weight to the risks or too little weight to the parents’ capabilities and the contents of the support plan.

And on the tricky subject of proportionality the judge said this (pa 102) :

Whether an order is proportionate or disproportionate is a matter for the trial judge. On this issue, too, on the same set of facts different judges may arrive at a different conclusion. What is proportionate and what is disproportionate are not fixed points to be ascertained by the application of a set of criteria. Proportionality and disproportionality fall on a spectrum. In any particular case precisely where they fall on that spectrum is a matter of impression and judgment. Here, too, in my judgment, only if in exercising her discretion the District Judge exceeded the generous ambit within which reasonable disagreement is possible is it open to me to conclude that the District Judge was ‘wrong’ in reaching the conclusion that a care order is proportionate. I noted earlier that it is very clear from her judgment that the District Judge had the issue of proportionality at the forefront of her mind.

HHJ Bellamy concluded by reminding us that the decision between a care or supervision order is one of discretion – and does not always have a single right or wrong answer.

A post script

One point only briefly touched on but not really explored in this case is the question of the lawfulness of a placement of a child at home under a care order. Although it is clear that a care order with a plan for home can be made, there are also regulations which require any carer of a looked after child to be positively assessed and to meet certain criteria (in Wales, under regulations 16-21 of the Care Planning Placement and Care Reviews (Wales) Regulations 2015 and guidance in the Social Services and Well-being (Wales) Act 2014 Part 6 code, chapter 2, paras 136-135 and, in England under the Care Planning, Placement and Case Review (England) Regulations 2010). In the writer’s experience sometimes a local authority that does not wish to remove a child (or which does not think it can justify removal in court) cannot propose a care order with a plan for placement at home because it knows that the parents will not meet the requirements in the regulations. This can sometimes lead them to seek a lesser order than is perhaps justified. This doesn’t seem to have been the position in this particular case – or at any rate if it was it wasn’t spelt out).

Feature pic : Scales by Hittie Evie on Flickr – thanks!