When can the court make these orders? And what is the impact?
On the application of the LA or the NSPCC the court can make a care or supervision order only if:
- the court has jurisdiction to make an order AND
- if section 31 of the CA is met. i.e. the 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.
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.
Does the court have the power to make a care order about my child?
The court only has power (‘jurisdiction’) to make a care or supervision order:
- if the threshold criteria are met. This is dealt with in another post.
- If the child has links to England and Wales – usually the child needs to have a settled life here (‘habitual residence’). As a general rule, courts in one country do not usually have the power to make orders about people who are citizens of other countries.
This issue about jurisdiction based on ‘habitual residence’ began to cause problems as increasing numbers of people have travelled to England from other countries but objected to the English court making orders about their children. There wasn’t anything clearly set out in any statute to help the judges decide when and how to exercise their jurisdiction over children whose parents had strong ties to other countries.
Sir James Munby set out some useful principles in these two cases: Re F (A Child)  EWCA Civ 789 and Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions)  EWHC 6 (Fam),  FLR.
He noted that Regulation Brussels II revised (BIIR) applied to determine the jurisdiction of the English court in care proceedings, whether or not the other country is a Member State of the European Union: see A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening)  UKSC 60,  AC 1, para 30, and In re L (A Child: Habitual Residence) (Reunite International Child Abduction Centre intervening)  UKSC 75,  3 WLR 1597, para 18.
The basic principle set out in Article 8(1) of BIIR is that the court’s power to make care or supervision orders depends on ‘habitual residence’ NOT just physical presence.
‘Habitual residence’ is meant to be a simple matter of fact and you ask yourself to what extent the child is integrated into his or her local environment – do they go to school for e.g. ?
The court must deal with this matter at the outset and should set out clearly the basis for saying it has power to make orders. If it is necessary to make decisions before there is time for proper investigation and determination, the following suggested recital should be used in the court order: “Upon it provisionally appearing that the child is habitually resident…”.
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.
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.
What if the court thinks there should be a care order and the LA doesn’t?
This situation arose in W (A Child) v Neath Port Talbot County Borough Council  EWCA Civ 1227 where both the mother AND the LA did not agree with the court’s assessment that a care order was required. The Court of Appeal confirmed that the court does have power to make an order even if the LA didn’t want it. Deciding what order is needed is a value judgment about the degree of intervention required by the state to meet the risk.
The starting point is the court’s findings of fact and then moving on to make a decision about a child’s welfare. That latter ‘value judgment’ is for the court to make NOT the LA. The LA may not refuse to accept a court’s evaluation of risk. If the LA refuses to amend its care plan, the Court of Appeal suggests that this could be challenged by way of judicial review. Parliament has given the power to decide what, if any, order to make to a judge and there would be no purpose in this if a local authority could simply ignore what the judge has decided.
However I am not aware of any published case where a LA has been subject to JR for failing to accept a court’s welfare evaluation – is what happens in practice is that the LA will ‘blink first’ ?
What happens in the LA doesn’t want to carry on with proceedings?
Mr Justice MacDonald summarised the approach to be taken in the case of A Local Authority v X, Y and Z (Permission to withdraw)  EWHC 3741. It’s only possible to withdraw proceedings with the court’s permission. Cases will be one of two types – those where the LA would clearly NOT have been able to find the threshold crossed; in these cases the court ought to allow them to withdraw. But in cases where the LA could satisfy the threshold, the court needs to think about it more carefully and look at the 12 factors set out in A County Council v DP, RS, BS (By the Children’s Guardian)  EWHC 1593:
- the interests of the child – which are relevant but not paramount
- the time the investigation would take
- the likely cost to public funds
- the evidential result
- the necessity of the investigation
- the relevance of the potential result to the future care plans for the child
- the impact of fact finding process on other parties
- the prospects of a fair trial
- the justice of the case.
Consequences of a care order
Impact on 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.
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.