Hertfordshire County Council v FM & Ors

When deciding between a Care Order and a Supervision Order, the court must assess the children’s welfare and safety while also considering the impact and degree of statutory intervention. A family’s reluctance to engage with social services does not itself justify a Care Order. The court may prefer a Supervision Order where effective inter-agency risk management is available and the less intrusive order is more likely to secure the family’s co-operation, even though the assessed risk remains serious. The order must not be understood as diminishing that risk. A return of a potentially dangerous parent to the family home before adequate assessment, or obstruction of supervision, may justify an application for removal. Supervised contact may be directed under the Children Act 1989, with contact at the family home prohibited unless the specified professionals and the mother agree or the court orders otherwise.

This was an addendum to an earlier judgment concerning three children and the risks arising from their father’s mental illness, sexually disinhibited behaviour, domestic violence and proposed discharge into the community. The local authority and the Children’s Guardian sought Care Orders. The parents sought Supervision Orders.

The court received updated information about the father’s proposed community management, including residence in supported accommodation, medical review and medication. It considered the mother’s capacity to protect the children, the children’s hostility to social services, the breakdown in trust between the family and social workers, and the different practical consequences of the proposed orders. The central issue was which order best protected the children while preserving family relationships and encouraging effective engagement.

1. A family’s reluctance to engage voluntarily with social services is not, by itself, a sufficient reason for making a Care Order. The court must consider the effect of a statutory order, and particularly its degree of intrusion into family life, as part of the welfare checklist under section 1(3) of the Children Act 1989.

2. The court was satisfied that the children could not protect themselves from the risks associated with their father’s possible deterioration and that the mother might not reliably resolve such risks. Ordinarily, those findings would support shared parental responsibility by the local authority. However, the court also considered the children’s strong opposition to social workers, their loyalty to their mother, the adverse effect of a Care Order on the family structure, and the likelihood that a less intrusive order would secure better engagement.

3. The different statutory obligations arising under a Care Order, identified in RE O (Care or Supervision Order) [1996] 2 FLR 755 and Oxford CC v L [1998] 1 FLR 70, were taken into account. The court nevertheless concluded that the balance favoured Supervision Orders because the Mental Health Community Team and Children, Schools and Families team were expected to share information and manage the risks jointly.

4. The making of a Supervision Order did not indicate that the risk had diminished. If the mother permitted the father to return home before adequate assessment, or obstructed access by supervising officers, the local authority was expected to consider applying for the children’s removal. The court also contemplated extension of the Supervision Order when appropriate.

5. Supervised contact was ordered under sections 8, 10 and 11 of the Children Act 1989. Contact was not to take place at the family home without written approval from the relevant mental health personnel, the supervising officer and the mother, or further order of the court.

Supervision Orders were made. The court found no justification for withholding the mother’s or the children’s passports.

Not an appeal. The judgment was an addendum to the court’s earlier judgment of 27 July 2007.