JW (Child at Home under Care Order)

A final care order under the Children Act 1989 may permit a child to live at home, but it should be made only for exceptional reasons and must be necessary and proportionate to the identified risk of harm. The protection of the child is decisive.

A care order must not be used solely to secure support, services or local authority involvement. The court must identify the practical protective benefit which shared parental responsibility would provide beyond a supervision order. Following Re DE, the difference between the powers of removal with and without an existing care order is generally procedural, save in a true emergency.

Where supervision is proportionate, the order should be supported by a clear, adequately resourced and robustly reviewed Supervision Support Plan.

Three children remained living with their mother throughout care proceedings. The local authority’s concern arose from her association with a man convicted of offences involving indecent images of children and prohibited from unsupervised contact with children. Although she ultimately ended the relationship, her separation was recent and her adherence to an agreed safety plan had been inconsistent.

On 11 November 2022, HHJ Harris-Jenkins made final care orders, with care plans for the children to remain at home. He considered that shared parental responsibility and the safeguarding features of care orders were necessary while the mother undertook protective work.

The mother appealed, arguing that supervision orders should have been made. Alternatively, she contended that the proceedings should have been extended so that her separation and protective work could become established. The central questions were whether care orders were necessary and proportionate and whether an extension beyond the statutory 26-week timetable was justified.

1. Appeal allowed on the choice of final order. The care orders were replaced by supervision orders for all three children. The recommendations and best-practice guidance of the President’s Public Law Working Group were formally endorsed and must be applied in all cases. A care order allowing a child to live at home is legally permissible, but exceptional reasons are required. Such an order should be rare in the extreme and must be necessary and proportionate to the identified risk of significant harm (Sir Andrew McFarlane P, Macur and Coulson LJJ agreeing) (paras [65]–[66], [73]–[78]).

2. A care order must not be used solely to procure support or services, compel a local authority to perform its existing duties, influence the deployment of resources or bring proceedings to a premature end. If a care order is not exceptionally necessary for protection, support must be delivered by another route. A supervision order may be the proportionate means of supporting a child at home. The April 2023 guidance requires a clear, tailored, resourced and robustly reviewed Supervision Support Plan (paras [65]–[67]).

3. The protection of the child is decisive, but proportionality governs the choice between care and supervision orders. The court must identify the particular risk and explain what additional practical protection a care order provides. Shared parental responsibility is important but is not self-justifying. Considerable need for help, advice, monitoring or visiting does not alone justify a care order (paras [28], [65]–[66], [72]–[73]).

4. The guidance in Re DE [2014] EWFC 6 was endorsed. Except in a true emergency, a local authority proposing to remove a child living at home under a care order should give notice and allow the parents to bring the issue before the court. Consequently, the difference between removal under an existing care order and removal where no care order exists is largely procedural. Earlier authorities emphasising an immediate administrative power of removal must be read in that light (paras [24]–[28], [65], [72]).

5. The identified risk was gradual manipulation and grooming, rather than a sudden assault. The children had remained safely at home under interim supervision orders, and the authority proposed the same monitoring and support under either final order. Any attempted removal would probably have returned the matter to court. The judge therefore erred in finding the circumstances exceptional: a care order added no material protective power (paras [69]–[74]).

6. The alternative ground was dismissed. An extension intended to cover completion of protective work and a substantial period of separation would have been open-ended. It was not justified under the 26-week scheme. Supervision orders were made for an initial year from 11 November 2022, with a care and support plan for each child under Part 4 of the Social Services and Well-being (Wales) Act 2014 (paras [67], [75]–[78]).

1. Court of Appeal (Civil Division): The appeal against the care orders was allowed. Supervision orders were substituted for all three children. The alternative challenge to the refusal to extend the proceedings was dismissed: [2023] EWCA Civ 944.
2. Family Court at Swansea: On 11 November 2022, HHJ Harris-Jenkins made final care orders for all three children, with care plans for them to remain living with their mother.