O (a child), Re

The choice between a care order and a supervision order must be proportionate to the risk of significant harm. A care order should not be made merely because the risk may continue beyond the maximum duration of a supervision order.

The court must consider the nature and speed of the anticipated harm, the protection available from others, and whether the local authority needs the care order’s powers to remove the child or control parental responsibility. Where a supervision order is proportionate, public authorities must provide the necessary services and parents must co-operate. A failure to co-operate may provide cogent evidence that stronger intervention is required.

A local authority appealed from HHJ Poulton’s decision in Canterbury County Court to make a supervision order concerning a baby who remained living with his parents. The authority and guardian ad litem had sought a care order, while the parents had sought no order.

The judge found a risk of unspecified physical or emotional harm if the mother relapsed into serious mental illness and the father or others failed to protect the child. He considered the risk manageable through a compulsory supervision order, psychiatric support and social services. The authority argued that a care order was justified because the risk could persist beyond the supervision order’s maximum duration.

The central issue was whether the duration of the risk required a care order despite the limited intervention contemplated by the care plan.

1. Appeal dismissed unanimously. Hale LJ delivered the substantive judgment, with which Cresswell J agreed. The judge had been right to make a supervision order. The risk was at the lower end of the spectrum: it involved unspecified harm following a possible psychiatric relapse, deterioration was unlikely to be rapid, and protection was available from the father and professional services.

2. A care order would confer powers extending substantially beyond the identified need. It would permit the local authority to remove the child without first obtaining an emergency protection order. It would also give the authority parental responsibility and power to control the parents’ exercise of their responsibility. Neither the findings nor the care plan demonstrated a need for those powers. Appropriate requirements could instead be included in the supervision order.

3. The possibility that the risk might continue beyond the supervision order’s maximum duration did not justify a care order. Difficulty in obtaining a later order would arise only if the risk, or the need for compulsory intervention, had largely disappeared. If material risk remained, the authority would have to investigate and take appropriate protective action.

4. A supervision order is compulsory. A failure by the parents to co-operate would be cogent evidence that a more stringent response might be required or that the risk remained. The necessary social and psychiatric services could and should be supplied irrespective of whether a care order existed.

5. The choice of order was governed by proportionality under article 8 of the European Convention on Human Rights. State interference with family life must be lawful, pursue a legitimate aim and be necessary in a democratic society. Necessity requires intervention proportionate to the protection of the child. Where supervision is proportionate, the authorities must make it effective by delivering and coordinating the required services, while the parents must co-operate fully.

Order: Appeal dismissed, with a detailed funding assessment of costs.

1. Court of Appeal (Civil Division): In [2001] EWCA Civ 16, the local authority’s appeal was dismissed and the supervision order was upheld.

2. Canterbury County Court: HHJ Poulton made a supervision order on 3 August 2000 after finding a risk of significant harm arising from a possible relapse in the mother’s mental health. He granted permission to appeal on 10 August 2000.