Melissa Vaughan is a member of Oriel Chambers family team.

Here Melissa provides a case summary of Re JW.

If you would like any further assistance in any of the topics arising from this article please do not hesitate to contact our clerks at clerks@orielchambers.co.uk

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For the first time in years, the Court of Appeal considered the approach to be taken when care proceedings conclude with a plan for the subject child to be placed, or remain living, at home with their parent and in these instances whether a final care order, supervision order or not order should be made.

In the leading judgment, Sir Andrew McFarlane, President of the Family Division, noted that care orders at home were a ‘hot potato’ and there were distinct geographical variations to the approach that has been taken by different courts.

Sir Andrew McFarlane stated:

‘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, and increasingly so as Family Courts across England and Wales strive, once again, to conclude public law care proceedings within the statutory 26 week time limit set by Children Act 1989, s 32(1) [‘CA 1989’].’
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Factual background

This appeal concerned three children aged 14, 11 and 7. In 2020 the children’s mother met ‘Mr P’ and the couple married the following year. It was only after they married that the mother was informed by social services that Mr P has been convicted in 2005 of offences of making and possessing a large number of indecent images of children. He had been made subject of a Sexual Harm Prevention Order prohibiting him from having unsupervised contact with children.

In October 2021, mother agreed to and signed a safety plan under which Mr P moved out of the family home. However, in the following months, the local authority became increasingly concerned that the mother not adhering to the safety plan and that Mr P was having unsupervised contact with her children.

In May 2022, the local authority issued care proceedings under s.31 of the Children Act 1989 (‘CA 1989’). Throughout the proceedings, the children remained living at home with their mother under an interim supervision order.

The final hearing took place in November 2022. HHJ Jarris-Jenkins acceded to the submissions of the local authority and children’s guardian by making a full care order with a care plan for the three children to remain living at home.

Mother’s appeal asserted that making a care order with the children at home was wrong; in the alternative it was argued that, rather than making a final care order, the judge should have extended the proceedings to allow the mother’s ability to protect the children from Mr P to become more established.

Case Law and Statutory Context

The court was struck by the fact that for many years a difference has existed in the approach taken by courts in different regions when determining final care orders, supervision orders or whether no order should be made when care proceedings conclude with a plan for the child to be placed at home with their parent(s).

The court recognized that the choice between a care or supervision order when a child is placed at home has not been subject of any recent determination. The last determination by the Court of Appeal on this matter was the decision of Baker J (as he was then) in Re DE (Child Under Care Order: Injunction under Human Rights Act 1998) [2014] EWFC 6; [2018] 1 FLR 1001.

The court made clear reference to the statutory frameworks and case law. The court provided the following conclusions:

• Making a care order with a subject child placed at home in the care of their parent(s) is plainly permissible within the statutory scheme and express provision is made for such circumstances in s.22C Children Act 1989 and in the placement regulations.
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• The early post Children Act 1989 authorities established that a care plan for placement at home was an appropriate outcome where the facts justified it, without the need for exceptional circumstances.
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• The analysis of Hale J/LJ in Oxfordshire County Council v L [1998] 1 FLR 70 and in Re O (Supervision Order) [2001] EWCA Civ 16; [2001] 1 FLR 923 laid particular weight upon the need for the authority to have power to remove the child instantly if circumstances required it, or to plan for the child to be placed outside the family.
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• Since Oxfordshire and Re O, the High Court decision in Re DE, containing guidance endorsed by the President, has been widely accepted so that, in all but a true emergency, the local authority power to remove a child from their home under a care order should not be exercised without giving parents an opportunity to bring the issue before a court.
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• The difference concerning removal of a child from home either under a care order or where there is no care order is now largely procedural. In all but the most urgent cases, the decision on removal will ultimately be taken within the umbrella of court proceedings, rather than administratively within a local authority.
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• Sharing of parental responsibility by the local authority with parents is an important element, but, as Hale J/LJ stressed, the fact that considerable help and advice may be needed over a prolonged period is not a reason, in itself, for making a care order.
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• It is wrong to make a care order in order to impose duties on a local authority or use it to encourage them to perform the duties that they have to a child in need.
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• The protection of the child is the decisive factor, but proportionality is key when making the choice between a care and supervision order for a child who is placed at home.
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• Supervision orders should be made to work, where that is the proportionate form of order to make.
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• The court referred to the President’s Public Law Working Group Guidance (“PLWG”), in particular, the main report published in March 2021. The report dealt expressly with the making of care orders where children are placed at home at paragraphs 158 to 162.

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In contrast to the caselaw dating from the first decade following the implementation of Children Act 1989, the court noted that the PLWG recommendations and best practice guidance places greater emphasis upon the need for proportionality in the face of significantly greater power afforded to a local authority under a care order. The court therefore noted that the PLWG identifies the need for ‘exceptional reasons’ to justify the making of a care order with a plan for the child to be living 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.”

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The Decision and conclusion

The situation before HHJ Harris-Jenkins was that the three children had always lived with their mother. The sole source of risk to the children came from the mother’s association with Mr P and the potential for him to cause significant harm to a child as a result of his past history. The harm from which the children required protection was therefore sexual abuse. That risk, which the court felt was plainly and correctly identified by HHJ Harris-Jenkins, was not one of a sudden assault on one or other of the children. Rather, it would arise gradually, over time, from Mr P further insinuating himself into the family.

The court acknowledged that there was no suggestion that the children should be removed from their mother’s care. The situation had been maintained under interim supervision orders throughout the proceedings and the mother had not been seen to ‘slip’ in her ability to protect the children, despite her continued contact with Mr P from time to time in breach of the agreement made with the local authority. The breaches of the agreement were a cause for concern and grounds for holding that the local authority and the court could not fully rely upon the mother’s future cooperation. The court was of the view that HHJ Harris-Jenkins was entitled to hold that the mother had inordinately delayed cutting her ties with Mr P. Her separation from Mr P, leading to divorce, was to be further tested.

Importantly, however, the court noted that the local authority was clear that the measures that it would deploy to monitor and support the family would be the same whether a care order or a supervision order was made.

The court therefore found it difficult to understand the basis for holding that the situation in the family was ‘exceptional’ or ‘rare’ when compared to other families where the children are placed at home with parents at the end of care proceedings.

The court noted that HHJ Harris-Jenkins’ principal reason for making a care order was that a supervision order did not have ‘the safeguarding features’ of a care order and that it was necessary for the local authority to share parental responsibility, and if necessary, take the ‘whip hand’, if there was a falling down in the safeguarding position at any point. HHJ Harris-Jenkins did not, however, identify what ‘the safeguarding features’ of a care order in this case were.

In circumstances where the local authority plan was the same under either order, the court presumed that HHJ Harris-Jenkins was referring to the fact, as he expressly did, that under a care order the authority would share and control the exercise of parental responsibility. The court suggested that, as a matter of law, that meant that the local authority could insist that the mother should act in a particular manner in her care of the children. However, HHJ Harris-Jenkins did not give any consideration of the consequences, on the ground, were the mother to refuse to comply. In particular, he did not consider whether, in ‘taking the whip hand’, the local authority would be justified in immediately removing the children from their mother’s care. The court noted that unless it was likely that immediate removal would be justified, then, on the basis of Re DE, whether the final order was a care order or a supervision order, the issue of removal would have to come back to court.

In light of the above, the court found it difficult to understand just what additional power HHJ Harris-Jenkins was contemplating that a care order would give to the local authority in order to maintain adherence to the safeguarding plan or add to the local authority’s ability to protect the children.

In sum, the court found that HHJ Harris-Jenkins was in error in holding that this case was ‘exceptional’ and that a care order was the proportionate and necessary order to be made. The court concluded that in a case such as this, where the risk is slow burning and the plan for monitoring and support would be the same under either order, and where any attempt to remove the children from home would be likely to lead to further court proceedings, there would be nothing that the making a care order would add to the local authority’s ability to provide protection.

The court therefore allowed ground one of the appeal.

In relation to ground two of the appeal, the court ruled that a further adjournment in the present case would have been for an open-ended period that would have probably included the mother starting and completing the protection enhancement course and demonstrating a substantial period of total separation from Mr P. The court concluded that extension of the 26-week timetable on such a basis would not be justified.

The court therefore dismissed ground two of the appeal.

The full judgment is available below.

https://www.judiciary.uk/wp-content/uploads/2023/08/JW-Children-judgment-040823.pdf