LB v LB

When the threshold for public-law intervention is met, the court must evaluate all realistic orders holistically, treating the child’s welfare as paramount and selecting an order that is necessary, proportionate and least interventionist. A care order may be appropriate even where the child remains living at home. Its value may lie in providing sustained statutory oversight, stability, access to resources and a framework for therapeutic work. The court should avoid speculative contingency planning where future circumstances and the appropriate response cannot sensibly be predicted.

The proceedings concerned a child living with his mother after the breakdown of his parents’ relationship and the loss of contact with his father. An earlier order terminating contact was successfully appealed in 2018, and the matter was reheard. Further expert evidence addressed the child’s autism, CODA identity, anxiety, communication difficulties and the parents’ ability to meet his emotional needs.

At the final hearing, the parties agreed on a therapeutic package and continued residence with the mother. They differed principally on whether the package should operate under a supervision order or a care order, and whether the care plan should contain a removal contingency. The court had to determine the appropriate public-law framework.

1. Threshold and welfare. The statutory threshold under Children Act 1989, s.31(2), was established. The child had suffered and remained at risk of significant emotional harm, including damage to his relationship with his paternal family, anxiety and impaired development towards independence. In deciding whether to make a care or supervision order, the court had to treat welfare as paramount and consider the welfare checklist under s.1(3).
2. Evaluative approach. The judicial task was global and holistic. The court had to evaluate all realistic options, take account of the Article 6 and Article 8 rights engaged, and choose an order that was necessary and proportionate and represented the least interventionist course consistent with welfare.
3. Care plan. The agreed therapeutic work, parenting support, educational assistance and team-around-the-family structure offered the best prospect of reducing the child’s anxiety, promoting independence and rebuilding his relationship with his father. Specific deadlines for contact would be counterproductive, although loose goals and timeframes could properly be included.
4. Legal framework. A care order was preferable to a supervision order. Although sharing parental responsibility could theoretically undermine joint parental responsibility, that risk was slight on the evidence. A care order provided a valuable safety valve if cooperation failed, longer-term statutory oversight, independent reviewing officer involvement, stability and access to resources. A 12-month supervision order was inconsistent with the medium- to long-term nature of the therapeutic work and risked renewed litigation at a critical stage.
5. Contingency planning. The court declined to include a plan for removal. The future response to failure could not sensibly be predicted because it would depend on the progress and circumstances of the child and both parents. A removal contingency might operate as a threat rather than a safety net and undermine the therapeutic process.
6. The court made a care order under which the care plan, amended to reflect funding, parenting support, goals and loose timeframes, was to be implemented.

1. High Court (Family Division). In December 2018, the father’s appeal from an order terminating contact was allowed and the matter was directed to be reheard.
2. High Court (Family Division). On the rehearing, the court made a care order and approved implementation of the therapeutic care plan.