JW (Child at Home under Care Order)

The Court of Appeal considered the appropriate statutory and jurisprudential approach to making a final care order where the care plan is for the child to remain at home. The court endorsed the Public Law Working Group (PLWG) guidance that a care order with the child at home should be rare and only made in exceptional circumstances, and reiterated the need for proportionality under the Children Act 1989 (in particular s 1(1) and s 1(5)).

Applying the statutory framework (notably CA 1989, s 31 threshold criteria and the permanence provisions) and the guidance in Re DE (child under care order: injunction under Human Rights Act 1998), the court held that a care order should not be used merely to secure services or monitoring that could be achieved by other means and that, outside a true emergency, removal under a care order will usually require notice and opportunity for parents to bring the matter back to court.

On the facts, the judge at first instance was wrong to hold that the case was exceptional and to make final care orders where the children were to remain at home, because the local authority's plan and available protective measures were materially the same under a supervision order and a care order and any removal would in practice require further court proceedings. The appeal was allowed on that ground and the care orders were replaced by supervision orders; the alternative ground seeking an adjournment to extend the 26-week timetable was dismissed.

Background and parties:

• The proceedings concerned three children who remained living at home with their mother throughout care proceedings brought by the local authority in May 2022 under CA 1989, s 31 following concerns about the mother's continued contact with a man ("Mr P") with convictions and restrictions relating to indecent images of children and a Sexual Harm Prevention Order.
• The interim supervision order made in May 2022 remained in place while the local authority, supported by the children's guardian, sought final orders. The final hearing concluded on 11 November 2022 (the 26-week limit) before HHJ Harris-Jenkins, who made full care orders with plans for the children to remain at home. The mother appealed.

Nature of the appeal and relief sought:

• The mother sought to challenge the making of care orders on two principal grounds: (i) that the judge should have made supervision orders rather than care orders because a care order was not necessary or proportionate; and (ii) alternatively that the final hearing should have been adjourned so that the 26-week timetable could be extended to allow the mother's protective work and separation from Mr P to be further tested.

Issues framed by the court:

1. When is it appropriate to make a care order where the child will remain at home, and what weight should be given to the PLWG guidance that such orders should be "rare in the extreme" and made only in exceptional circumstances?
2. What, if any, additional protective effect does a care order give in circumstances where the local authority's plan and intended support are the same under a supervision order?
3. Whether the 26-week timetable should have been extended to allow further protective steps to be taken and tested.

Court's reasoning:

• The court formally endorsed the PLWG reports and best practice guidance and emphasised that proportionality under CA 1989, s 1(5) is central to the choice between a care order and a supervision order.
• The court explained that Re DE requires that, absent true emergency, removal of a child placed at home under a care order should not be undertaken without notice so that parents can seek relief in court; consequently, the practical difference between removal under a care order and removal after fresh court proceedings is now largely procedural.
• On the facts, the primary risk was slow-developing sexual grooming by Mr P if he re-entered the mother's life. The judge below emphasised the value of the local authority sharing parental responsibility under a care order, but did not explain what concrete additional protective steps would be taken under a care order that would not exist under a supervision order, nor whether immediate removal would be likely if the mother failed to comply.
• The court refused to extend the 26-week timetable because an adjournment would have been open-ended; the mother had had a period to start protective measures and further time was not justified.

Disposition:

• The appeal was allowed on ground one and dismissed on ground two. The care orders were set aside and replaced by supervision orders running from 11 November 2022 for an initial period of one year. The court directed that the local authority should file Supervision Support Plans (implemented in Wales by Part 4 care and support plans under the Social Services and Well-being (Wales) Act 2014).

Appeal allowed in part. The Court of Appeal held that the judge below was wrong to make final care orders where the children were to remain living at home because the local authority's plan and support were materially the same under a supervision order and any removal would, absent a true emergency, require further court proceedings; making a care order in those circumstances was not necessary or proportionate. The court substituted supervision orders. The alternative ground seeking an adjournment and extension of the 26-week timetable was dismissed as not justified.

Appeal from Family Court, Swansea (HHJ Harris-Jenkins, decision dated 11 November 2022, Case No SA22C50077) to the Court of Appeal (Civil Division), resulting in judgment [2023] EWCA Civ 944.