Tag Archives: care order

Final care order with child placed at home

It is possible that a care order can be made but the care plan is for the child to remain at home. This used to be quite unusual but may become more common as the requirement is now that care proceedings must conclude as soon as possible or in any event take no longer than 26 weeks.

The difficulty with this scenario, is what happens if the LA don’t think things are going well at home and they decide they want to remove your child?

 

What happens if the LA want to remove your child after final care order is made?

Parents have the option of applying to discharge the care order under section 39 of the Children Act 1989.

However, this is not an option that is useful in an urgent situation because takes time for the necessary reports to be written and evidence gathered. Further, parents won’t automatically get help with paying for lawyers.

 

What can the parents do to act quickly in this situation?

Injunctions under the Human Rights Act 1998

This issue was death with in the Matter of DE (A Child) in 2014.  There were concerns about how DE’s parents would cope looking after him as both parents had learning disabilities. However, with a package of support and the help of extended family, DE was able to live with his parents from birth.

In November 2012 when D was aged 11 months, the court made a final care order supporting the LA plan that DE remain at home with his parents but subject to  a care order. This would be kept under review – if all was going well, the LA might apply for a supervision order instead. If things were not going well, the LA would remove DE from his parent’s care.

The LA became increasingly worried about the care that DE’s parents were giving him, considering that the parents needed constant prompting about issues of safety both in and outside the home.  In March 2014 the LA told the parents that they were going to remove DE in a month’s time.

The father applied for an injunction under section 8(1) of the Human Rights Act 1998 to prevent the LA removing DE as there was no urgent need to do so. The LA responded that they were entitled to act in this way as they had a care order and the responsibility of making decisions for the child had therefore passed to them; the court could only intervene if what the LA was doing was unlawful. The Judge felt he had no choice but to refuse the father’s application for an injunction and DE was removed.

The father appealed and Mr Justice Baker concluded that the first judge was wrong to say he could not go behind the care order. The court did have the power to make an injunction to stop the LA removing the child.

Although the LA has the power under section 33(3) of the Children Act 1989 to determine how others may exercise their parental responsibility for child, under section 33(4) they can only exercise that power if to do so is necessary to safeguard or promote the child’s welfare.

Therefore a LA should only remove a child from home under a care order if removal meets the requirement of necessity. If removal is not necessary, the LA are proposing to act in a way which breaches Article 8 of the ECHR  – and  the court has the power to stop them by way of injunction using the Human Rights Act 1998.

The court said:

34. To my mind, where a care order has been granted on the basis of a care plan providing that the child should remain at home, a local authority considering changing the plan and removing the child permanently from the family is obliged in law to follow the same approach. It must have regard to the fact that permanent placement outside the family is to be preferred only as a last resort where nothing else will do. Before making its decision, it must rigorously analyse all the realistic options, considering the arguments for and against each option. This is an essential process, not only as a matter of good practice, but also because the local authority will inevitably have to demonstrate its analysis in any court proceedings that follow the change of care plan, either on an application for the discharge of the care order or an application for placement order under the Adoption and Children Act 2002. This process of rigorous analysis of all realistic options should be an essential feature of all long-term planning for children. And, as indicated by Munby J in Re G, the local authority must fully involve the parents in its decision-making process.

 

 
35. While this process is being carried out, the child should remain at home under the care order, unless his safety and welfare requires that he be removed immediately. This is the appropriate test when deciding whether the child should be removed under an interim care order, pending determination of an application under s.31 of the Children Act: Re L-A (Children) [2009] EWCA Civ 822. The same test should also apply when a local authority’s decision to remove a child placed at home under a care order has led to an application by the parents to discharge the order and the court has to decide whether the child should be removed pending determination of the discharge application. As set out above, under s.33(4) of the 1989, the local authority may not exercise its powers under a care order to determine how a parent may exercise his or her parental responsibility for the child unless satisfied it is necessary to do so to safeguard or promote the child’s welfare. For a local authority to remove a child in circumstances where its welfare did not require it would be manifestly unlawful and an unjustifiable interference with the family’s Article 8 rights.

 

 
36. In submissions before the district judge, and before this court, it was argued on behalf of the local authority that its removal of D from the family home was lawful simply by reason of the care order. That submission is fundamentally misconceived. The local authority’s removal of the child would only be lawful if necessary to safeguard or promote his welfare. Any other removal, or threatened removal, of the child is prima facie unlawful and an interference of the Article 8 rights of the parents and child. In such circumstances, the parents are entitled to seek an injunction under s.8 of the HRA.

The court ordered a further hearing in a few weeks time in order to consider whether DE should be returned to his parents’ care whilst all the necessary evidence was gathered to proceed with an application to discharge the care order.

 

Guidance from the court for future cases.

(1) In every case where a care order is made on the basis of a care plan providing that a child should live at home with his or her parents, it should be a term of the care plan, and a recital in the care order, that the local authority agrees to give not less than fourteen days notice of a removal of the child, save in an emergency. I consider that fourteen days is an appropriate period, on the one hand to avoid unnecessary delay but, on the other hand, to allow the parents an opportunity to obtain legal advice.

 
(2) Where a care order has been granted on the basis of a care plan providing that the child should remain at home, a local authority considering changing the plan and removing the child permanently from the family must have regard to the fact that permanent placement outside the family is to be preferred only as a last resort where nothing else will do and must rigorously analyse all the realistic options, considering the arguments for and against each option. Furthermore, it must involve the parents properly in the decision-making process.

(3) In every case where a parent decides to apply to discharge a care order in circumstances where the local authority has given notice of intention to remove a child placed at home under a care order, the parent should consider whether to apply in addition for an injunction under s.8 of the HRA to prevent the local authority from removing the child pending the determination of the discharge application. If the parent decides to apply for an injunction, that application should be issued at the same time as the discharge application.

(4) When a local authority, having given notice of its intention to remove a child placed at home under a care order, is given notice of an application for discharge of the care, the local authority must consider whether the child’s welfare requires his immediate removal. Furthermore, the authority must keep a written record demonstrating that it has considered this question and recording the reasons for its decision. In reaching its decision on this point, the local authority must again inter alia consult with the parents. Any removal of a child in circumstances where the child’s welfare does not require immediate removal, or without proper consideration and consultation, is likely to be an unlawful interference with the Article 8 rights of the parent and child.

(5) On receipt of an application to discharge a care order, where the child has been living at home, the allocation gatekeeper at the designated family centre should check whether it is accompanied by an application under s.8 of HRA and, if not, whether the circumstances might give rise to such an application. This check is needed because, as discussed below, automatic legal aid is not at present available for such applications to discharge a care order, and it is therefore likely that such applications may be made by parents acting in person. In cases where the discharge application is accompanied by an application for an order under s.8 HRA, or the allocation gatekeeper considers that the circumstances might give rise to such an application, he or she should allocate the case as soon as possible to a circuit judge for case management. Any application for an injunction in these circumstances must be listed for an early hearing.

(6) On hearing an application for an injunction under s.8 HRA to restrain a local authority removing a child living at home under a care order pending determination of an application to discharge the care order, the court should normally grant the injunction unless the child’s welfare requires his immediate removal from the family home.

For further discussion about this case and its implications, see this blog post from suesspicsiousminds. 

 

Care and Supervision Orders

Care and Supervision orders were created by Part IV of the Children Act 1989.

See Chapter 3 of the Guidance from the Department of Eduction.

On the application of the LA or the NSPCC the court can consider making either order if the provisions of section 31 are made out. This requires the judge to be satisfied that a child has suffered or is at risk of significant harm.

The significant harm can occur because of bad parenting (which is likely to be seen as the parents’ ‘fault’) or because the child is beyond parental control – this may be less likely to be seen as the ‘fault’ of the parents. But regardless of questions of who or what is to ‘blame’ – there must be a link between the parenting/lack of control and the significant harm.

In this post, we examine the legal consequences that flow from the making of either a care or a supervision order.

If you are worried that your child is going to be taken away at an ‘interim hearing’ i.e. before the final care order is made, read more about this here.

 

Care and Supervision Orders – some general points

  • No care or supervision order can be made once child is 17 years old (or sixteen if married!)
  • If the LA want a care order the court can decide to make a supervision order or no order at all. This is due to the principle of ‘least intervention’; the court must be careful that the decisions it makes are proportionate to the harm in question. Proportionality is a key concept in Family Law – see Article 8 of the ECHR. If the child could be kept safe by a less serious order, such as a supervision order or child arrangements order, then that is the order that should be made. See further our post about Article 8 and proportionality.
  • A care order gives the LA parental responsibility for a child; a supervision order does not. See discussion below.
  • If a care order is made, if the child is subject to any other orders – such as any order under section 8 of the Children Act 1989, a supervision order, education supervision order or school attendance order – those orders will be discharged. Also if the child was a ward of court, the care order will bring wardship to an end.
  • If the child is subject to a care order and the court makes a special guardianship order or a child arrangements order under section 8 of the Children Act 1989, dealing with the living arrangements of a child, that will bring the care order to an end. If the court makes a placement order, the care order is suspended not discharged and will revive if the placement order is revoked.

Care Plans

Under section 31A of the Children Act 1989 the court cannot make a care order unless the LA have provided a care plan for the child. Section 15 of the Children and Families Act 2014 has amended the law with regard to care plans to say that the court need only  examine that part of the plan which relates to permanency for the child – i.e. what the LA thinks should happen to the child in the future and where he or she should live.

 

Consequences of a care order

Impact on parental responsibility

What is parental responsibility?

Parental responsibility (‘PR’) is defined under section 3 of the Children Act 1989 as “all the rights, duties, powers, responsibilities and authority, which by law a parent has in relation to the child and his/her property.”

In a nutshell this means that people with PR have a right to know and make decisions about serious issues in the child’s life, such as where they live or go to school or what medical treatment they need.

Mothers automatically have PR for their children; fathers will have it automatically if they are married to the mother or – from 2003 – if their name appears on the birth certificate. If the parents were not married, the father is not on the birth certificate and the parents cannot agree about PR, the father will need to apply to the court for an order awarding him PR.

The key distinction between care and supervision orders is found under section 33(3) of the Children Act. Only a care order can gives the LA parental responsibility and the power to decide how any one else can exercise their parental responsibility. It is often said that a care order allows the LA to ‘share’ parental responsibility but the more realistic description is that the LA is now in the driving seat when it comes to making decisions about the child. 

 

The LA can control parents’ exercise of their parental responsibility when ‘necessary’.

However, under section 33(4) the LA can only use their powers to control other people’s parental responsibility if to do so is necessary to safeguard or promote the child’s welfare. Together with the considerations of Article 8 of the ECHR and the need to act proportionally, the LA will need to think seriously about whether or not what it proposes is ‘necessary’.

For example, see our post on what happened when the LA wanted to remove a child who was placed at home under a care order. The court decided that this had not been ‘necessary’ and that the first judge had the power to stop them by way of an injunction under the Human Rights Act 1998.

Further, under section 33(6) the LA is NOT entitled to change the child’s religious persuasion and NO ONE is allowed to call the child by a different surname or take him out of the country for more than a month unless everyone with parental responsibility agrees or the court orders.

 

Duty to consult

It is important to note that, even though under a care order the LA is in the ‘driving seat’, they cannot ignore the other passengers – the LA MUST consult with and inform other PR holders about important decisions they make for the child and they have rightly been subject to serious criticism when they have failed to do this.

See this case from 2013 where Kingston on Hull City Council were subject to a successful judicial review of their failure to consult parents.

The Judge made clear at paragraph 58 his views about the duty to consult:

I have made it clear that there is a duty upon a local authority to consult with all affected parties before a decision is reached upon important aspects of the life of a child whilst an ICO is in force. I have been shown the guidance issued by HM Government to local authorities in 2010 [The Children Act 1989 Guidance and Regulations] where there is valuable material available to social workers about how to approach their difficult task in this regard.

Paragraph 1.5 provides (inter alia):
“Parents should be expected and enabled to retain their responsibilities and to remain closely involved as is consistent with their child’s welfare, even if that child cannot live at home either temporarily or permanently.” …

“If children are to live apart form their family, both they and their parents should be given adequate information and helped to consider alternatives and contribute to the making of an informed choice about the most appropriate form of care.”
Whilst it is not spelled-out quite as starkly as perhaps it should, there is contained therein a plain message that a local authority must consult and, in my judgment, that is even more crucial during the interim phase of proceedings when final decisions as to the threshold criteria and outcome have not been made by a court.

The issue about how the LA needs to consult will depend on the facts of each case, but should usually include the parents and the guardian, if one is appointed and any other family member who has a close link to the children, such as a grandparent who may be caring for the child or otherwise closely concerned.

The LA will then have to decide how much weight to attach to the input of those it consults and again, this will depend on the facts of each case.  But the Judge was clear:

The “others” who need to be consulted may have a valuable contribution that might alter the proposal of the local authority. It does not mean the parents and other parties must concur with the proposal before it can be implemented. There can be no veto or casting vote. Equally, the parents and other parties are not mere vassals to whom information is given and nothing more.

I don’t agree with what the LA wants to do

If, after consultation, you do not agree with the LA’s proposed plan of action, you may need to consider applying for an injunction to prevent them from acting under the Human Rights Act. We discuss this remedy here.

 

Impact of care order on contact with children

There is a helpful article from Family Law which discusses applications for contact with a child in care. See also the Care Planning, Placement and Case Review Regulations 2010.

Section 34 states that the LA ‘shall’ allow the child ‘reasonable contact’ with his parents or guardian, a step-parent who has parental responsibility or anyone who had a residence order immediately before the care order was made. Any other person who wants contact will have to apply to the court for leave to make an application and the court may make ‘such an order as it considers appropriate’.

Contact with babies in care proceedings

It used to be thought that when babies were taken into care, that parents ought to have as much contact as possible, and 5 times a week would represent a minimum. However, more recently,  the courts have become aware of research which showed that frequent contact for babies in care was often harmful to  them as it could mean that they were subject to a lot of travelling with unfamiliar people and it had a negative impact on their ability to settle in foster placements. So it is likely that contact with a baby will be set at between 2-3 times a week and probably less for older children as they are likely to have a number of commitments such as school attendance which may impact upon frequent contact.

If you want to know more about the issue of contact with babies in care, here is a transcript of a debate on 8th December 2010, organised by the Family Justice Council ,which includes contributions from the President of the Family Division. There is a useful article here from Jenny Kenrick, a child psychotherapist, which looks  further at the practical issues around contact with babies in care proceedings.

The LA want to stop contact

The LA cannot refuse contact unless for an urgent reason and then only for 7 days. If the LA wants to stop contact and you don’t agree,  it will have to ask the court to order this under section 34(4).

If the LA do want to stop your contact, then under Regulation 8 of the Care Planning, Placement and Case Review Regulations of 2010, they must give written notice of:

(a) the responsible authority’s decision,
(b) the date of the decision,
(c) the reasons for the decision,
(d) the duration of the decision (if applicable), and
(e )remedies available in case of dissatisfaction.

 

Supervision Orders

You will find supervision orders at section 35 of the Children Act 1989.

A supervision order does NOT give the LA parental responsibility for your child but allows them to appoint a ‘supervisor’ who will ‘advise, assist and befriend the supervised child’ and take whatever steps are necessary to make the supervision order work. 

Supervision orders are normally made for six months or 12 months at time. They can be a good way of dealing with concerns which are worrying but not so serious that a care order is required. It is a way of keeping an eye on a situation and monitoring how well things are going.

The court can make a supervision order even if the LA is asking for a care order, if the court thinks a supervision order is the best order to make.