The President of the Family Division has issued guidance on when a care order is the right order for the court to make although the children are to live at home with their parents. In other words, there is no imminent plan to remove the children under a care order, but the court decides that a care order is necessary to protect the children from harm. The Court of Appeal decision Re JW (Child at home under care order)  EWCA Civ 944 has confirmed that such a decision should only be made in ‘exceptional circumstances’. The President comments that practice has developed differently across England and Wales, with some local authorities commonly seeking and being granted care orders for children who are living with their parents, but in other places, such orders are rarely if ever made.
First, the case itself – where a Family Court judge in south Wales had made care orders that were overturned by the Court of Appeal and replaced with supervision orders.
The facts and decisions in Re JW
There are three children aged between 7 and 14. Their mother had married Mr P in 2020 but learnt in late 2021 that Mr P had convictions for sexual offences some 15 years earlier and was subject to a Sexual Harm Protection Order that prevented him from having unsupervised contact with children. She signed a safeguarding agreement with the council that Mr P would be excluded from the family home and not see the children unsupervised. However, the local authority were concerned that she was not keeping to the agreement and applied in May 2022 for care orders. During the proceedings the children all remained living with her, under an interim supervision order. In November, HHJ Harris-Jenkins in Swansea Family Court made care orders with the plan being that the children would continue living at home with their mother. The judge noted the ‘inordinate’ delay by the mother in cooperating with children’s services and completely ending her relationship with Mr P. In these circumstances, care orders were proportionate because supervision orders would be insufficient to protect the children. (The judgment is not published, so we can only read those points that are quoted by the Court of Appeal.) The mother appealed.
The Court of Appeal disagreed with the family court judge. Care orders were not proportionate. The judge was wrong to see this as an exceptional case. An injunction and undertakings were in place to control Mr P’s contact with the family and the local authority’s monitoring and support measures would be the same under a care order or supervision order. In a case where the risk was ‘slow-burning’ and the plan for monitoring and support was the same under either type of order, and where any attempt to remove the children would be likely to lead to further court proceedings, a care order would add nothing to the local authority’s ability to provide protection.
Judicial comments on the geographical variations in practice
In the first paragraph of the Court of Appeal judgment, the President says:
For some years it has been recognised that a difference exists in the approach taken by courts in different regions when determining whether a final care order, supervision order or no order should be made when care proceedings conclude with a plan for the subject child to be placed, or remain living, at home with their parent(s). Broadly speaking, if a line is drawn from Hull down to Bristol and beyond, courts in England and Wales that are North and West of that line will often make a care order in such cases, in contrast to courts South and East of the line where normally a supervision order or no public law order will be made. My experience is that the judges who sit on one side of the line or the other are confident that the approach taken in their area is the correct one. The difference of approach is striking, and its existence has become something of a hot potato…
In para 65, he says that the markedly different approach in the two halves of England and Wales cannot continue. This judgment is therefore intended to ensure consistency in the future by endorsing recommendations of the Public Law Working Group.
The President does not explore the possible reasons for the different approaches but he does summarise Lady Hale in Re O (Supervision Order)  EWCA Civ 16 as saying:
it has never been the case that a care order should be used as a means to ensure that a local authority meets the duties that it has with respect to children in need in its area, nor should it be used to influence the deployment of resources.
The President sets out the relevant legislation regarding family support in England and in Wales, but from the few paragraphs of the judgment that are reproduced here, it appears that HHJ Harris-Jenkins was not concerned that the family would not receive support services but that Mr P continued to represent a safeguarding risk. The different legislation on care and support between England and Wales doesn’t seem significant here.
Research on the higher rates of care orders in Wales than England has suggested that the tendency for judges in Wales to make care orders when children are placed with their parents could be one of the contributing factors (See: H Hodges and J Scourfield, ‘Why are there higher rates of children looked-after in Wales?). However, why judges above and to the west of the Hull – Bristol line might trust local authorities less than judges in the south-east is a conundrum.
Guidance on deciding between a care and a supervision order
Surprisingly, it‘s been a long time since an appeal court gave any guidance on the proportionality between a care order and a supervision order, last considered by Mr Justice Baker in Re DE (Child under care order: Injunction under Human Rights Act 1998)  EWFC 6. The Court of Appeal are therefore using the JW case to update the position.
The President handily summarises the PLWG guidance at para 66:
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.
It’s to be hoped that during the six months between the Swansea judgment in November last year and the Court of Appeal judgment in April, the mother in JW had continued to demonstrate that she was keeping the children safe. The supervision orders made by the Court of Appeal are due to expire this November 2023. Perhaps the local authority and the judge feared that anything less than care orders would allow this mother to ‘slip’, but the guidance tells us that such circumstances do not always meet the ‘exceptional’ threshold for a care order at home.
It would be very valuable to have some means of monitoring the impact of the guidance – will fewer care orders be made? Or will judges spell out in more detail why the circumstances are exceptional? We will probably continue to hear only anecdotal evidence, although collecting this sort of data reminds us of the ambitions of the Transparency Review to undertake some analysis of family court decisions for publication in an annual report.
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