Tag Archives: General Legal Principles

Care and Supervision Orders

When can the court make these orders? And what is the impact?

Care and Supervision orders were created by Part IV of the Children Act 1989. See also Chapter 3 of the Guidance from the Department of Eduction.

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) [2014] EWCA Civ 789 and Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions) [2014] EWHC 6 (Fam), [2014] 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) [2013] UKSC 60, [2014] AC 1, para 30, and In re L (A Child: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2013] UKSC 75, [2013] 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.

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.

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 [2013] 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) [2017] 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) [2005] 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.

Care order with child remaining at home

The court has recently given guidance about a care order being made with the child remaining at home JW (Child at Home under Care Order) [2023] EWCA Civ 944.

An English local authority may only allow a child in care to live with a parent,
person with parental responsibility, or the previous holder of a ‘live with’ child
arrangements order (made under CA 1989, s 8), in accordance with the Care Planning,
Placement and Case Review (England) Regulations 2010 [‘CPPCR(E)R 2010’]. Under regulation 20, the local authority must provide such support services to the parent as appear to them to be necessary to safeguard and promote the child’s welfare and must under regulation 28 arrange visits to the child as necessary.

Since the early days following the implementation of CA 1989 in 1991 the practice of
making a final care order on the basis that the child will be living at home was endorsed
by the higher courts. The key question is the proportionality of the order. The court summarised the relevant law at para 28 of the judgment

  1. making a care order with a subject child placed at home in the care of their
    parent(s) is plainly permissible within the statutory scheme and express
    provision is made for such circumstances in CA 1989, s 22C and in the
    placement regulations;
  2. the early post-CA 1989 authorities established that a care plan for placement at
    home was an appropriate outcome where the facts justified it, without the need
    for exceptional circumstances;
  3. the analysis of Hale J/LJ in Oxfordshire and in Re O laid particular weight upon
    the need for the authority to have power to remove the child instantly if
    circumstances required it, or to plan for the child to be placed outside the family;
  4. since Oxfordshire and Re O, the High Court decision in Re DE, containing
    guidance endorsed by the President, has been widely accepted so that, in all but
    a true emergency, the local authority power to remove a child from their home
    under a care order should not be exercised without giving parents an opportunity
    to bring the issue before a court;
  5. the difference concerning removal of a child from home either under a care order
    or where there is no care order is now largely procedural. In all but the most
    urgent cases, the decision on removal will ultimately be taken within the
    umbrella of court proceedings, rather than administratively within a local
  6. sharing of parental responsibility by the local authority with parents is an
    important element, but, as Hale J/LJ stressed, the fact that considerable help and
    advice may be needed over a prolonged period is not a reason, in itself, for
    making a care order;
  7.  it is wrong to make a care order in order to impose duties on a local authority or
    use it to encourage them to perform the duties that they have to a child in need;
  8. the protection of the child is the decisive factor, but proportionality is key when
    making the choice between a care and supervision order for a child who is placed
    at home;
  9. supervision orders should be made to work, where that is the proportionate form
    of order to make.

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.

The Public Law Working Group produced a report and ‘Best Practice Guidance’ (BPG) around Supervision orders in April 2023. It’s key recommendations were:

  • Each local authority’s children’s services department implements the BPG.
  • Supervision orders are only made when all of the matters set out in the supervision order template within the BPG have been considered and addressed.
  • Each children’s services department adopts and completes the self-audit questions within the BPG in respect of every supervision order made in its favour.
  • Each children’s services department considers developing good practice tools to embed the BPG (e.g., Essex Children’s Social Care’s ‘thinking tool’).
  • In light of the report and recommendations of the Independent Care Review commissioned by HM Government, HM Government to commit to provide the necessary resources to local authorities to enable them to adopt and implement the BPG to the fullest and most effective extent possible.

The report also makes four proposals for long-term change. These recommendations will require legislative changes to be implemented and/or the approval of additional public spending by the Government.

  • Amending the Children Act 1989 to provide a statutory basis for supervision support plans (akin to s 31A, CA 1989 in respect of care plans). MoJ and DfE participation in the working group should not be taken as government endorsement of all the recommendations in this report or the BPG.
  • Placing local authorities under a statutory duty to provide support and services under a supervision order.
  • Amending statutory guidance to reflect the recommendations in this report and the BPG.
  • HM Government undertaking or funding an external body to identify all supervision orders made by the Family Court to support family reunification and collect data on (a) the supervision plan at the end of proceedings, (b) the implementation of the plan during the life of the supervision order and (c) change of placement or return to court for the children and their parents up to two years after the end of the supervision order

What do we mean by proving something ‘on the balance of probabilities’ ?


How and why do we have two different standards of proof in civil and criminal proceedings?

‘The balance of probabilities’ is the standard of proof used in all civil court proceedings, so includes care proceedings.

The other standard of proof we use is the one in criminal cases which is ‘beyond a reasonable doubt’ or that the jury must be ‘sure’ a crime was committed, which is a higher standard due to the very serious consequences that can follow a criminal conviction, such as loss of liberty.

Its often difficult for non lawyers to understand that there are two separate systems which work on two different ‘standards of proof’ and many parents struggle to accept that the lower civil standard of proof is used to make findings about parents which are often just as serious as a decision to send someone to prison. For example, the family court gets to decide whether a child is removed permanently from the parents’ care. This struggle becomes even more acute around the issue of removing children at risk of future emotional harm – i.e. for something that hasn’t happened yet, but the court thinks will.

I agree that if the State takes your child away, that is a very serious and significant interference in the family life of both parent and child. But if children are left in dangerous situations, that also puts them at serious risk of being hurt, either emotionally or physically. Therefore, it is a deliberate decision to use balance of probabilities in family cases because we could not always prove children were at risk using such a high standard of proof, or it may take much longer to find and gather together the evidence to have a court hearing, leaving the children at risk of harm while this is done.

Baker J discussed the issue of the burden and standard of proof in 2013:

In English law, the House of Lords has now concluded definitively that in order to determine whether an event has happened it has to be proved by the person making the allegation on the simple balance of probabilities. Where the law establishes a threshold based on likelihood, for example that a child is likely to suffer significant harm as a result of the care he or she would be likely to receive not being what it would be reasonable for a parent to give, the House of Lords has also concluded that such a likelihood, meaning a real possibility, can only be established on the basis of established facts proved on a balance of probabilities.

There are those who considered that to require the proof of past harm was a misreading of the intention of Parliament, and that a system devoted to child protection should not imposed such a high hurdle. It was argued, and in some quarters is still argued, that since we would not insist on proof before protecting our own children from risk, we should adopt the same cautious approach when protecting other, more vulnerable children. The House of Lords has of course firmly rejected that approach, which of course would at one extreme involve removing children from their parents on the basis of mere suspicion.

However, it is clear that certainly in ‘finely balanced cases’ that a finding can often be very difficult for parents to accept, particularly as any finding then becomes ‘the truth’ unless and until it is challenged. Our current system of fact finding permits only two outcomes (the ‘binary system’) – either it did or it didn’t happen.

Application of the standard of proof in care proceedings .

In care proceedings, the Judge has to be satisfied that the evidence to show that your child is suffering or is at risk of suffering significant harm has been proved on the balance of probabilities. This phrase has been explained to mean ‘more likely than not, or ‘ ‘more than 50/50’.

For a while, the courts did approach the standard of proof for serious allegations in  family cases as being similar to the standard in criminal cases, as it was felt that such serious allegations with such serious consequences required a high level of proof.

The courts however from 2004 onwards decided to move away from this approach and confirmed it by a decision in the House of Lords in 2008  (The House of Lords is now called the Supreme Court).

Baronness Hale said at paragraph 69 of her judgment:

There are some proceedings, though civil in form, whose nature is such that it is appropriate to apply the criminal standard of proof. Divorce proceedings in the olden days of the matrimonial “offence” may have been another example (see Bater v Bater [1951] P 35). But care proceedings are not of that nature. They are not there to punish or to deter anyone. The consequences of breaking a care order are not penal. Care proceedings are there to protect a child from harm. The consequences for the child of getting it wrong are equally serious either way.

Baronness Hale stated ‘loud and clear’ that the standard of proof in care proceedings is the simple balance of probabilities, neither more nor less.

Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies. […] It may be unlikely that any person looking after a baby would take him by the wrist and swing him against the wall, causing multiple fractures and other injuries. But once the evidence is clear that that is indeed what has happened to the child, it ceases to be improbable. Some-one looking after the child at the relevant time must have done it. The inherent improbability of the event has no relevance to deciding who that was. The simple balance of probabilities test should be applied.

The dangers of ‘pseudo maths’ to determine the balance of probabilities

The court examined this in the tragic case of A (A child) 2018.  In November 2016 S, aged only 10 years, was found dead in her bedroom. Initially it was thought this was a tragic accident – that she had become entangled in decorative netting around her bed and injuries to her neck caused her death. There were problems at the outset in the police gathering evidence at the scene.

However it was then discovered she had injuries to her genitals, probably inflicted about 12 hours before she died and the view of the experts was that this made it more likely that the neck injuries were deliberately caused, probably in some sexually motivated homicide.

However at the first hearing the LA failed to persuade the Judge to make a finding on the balance of probabilities that both sets of injuries were deliberately inflicted. The LA appealed successfully to the Court of Appeal who criticised the first instance Judge for failing to look at the wide canvass of the evidence and to consider neck and genital injuries together, and also for attempting to apply ‘pseudo maths’ to the analysis of the balance of probabilities, in particular by identifying percentages for each possibility and adding them up. As the Judge could not reach ’51’ by this method, he concluded the LA had not met the standard of proof.

The Judge relied upon the decision of Mostyn J in A County Council v M & F [2011] EWHC 1804 (Fam), [2012] 2 FLR 939 as support for his contention that, where there are rival hypotheses, the judge is not bound to make a finding and that as a consequence the burden of proof is the only course to take. The judge went further saying at para 98 of his judgment that:

“98. I find that this is one of those unusual cases where the burden of proof comes to the judge’s rescue. Aggregating, as I must, the probability of suicide together with the probability of accident, I find that the aggregate of these two is more than 50 per cent. Doing the best that I can, I find that the possibility of suicide is about 10 per cent, and the possibility of accident and a perpetrated act are about 45 per cent each. It would be wrong for anyone to regard these figures as in any way accurate, for of course they are not. They persuade me, however, that the local authority has not discharged the burden of proof which is upon it. I am not satisfied, on the balance of probabilities, that this was a perpetrated act, albeit that I recognise that it is one of three possibilities. On the basis, however, that I do not discard the least probable and then allow a competition between the other two options, but that I should look at each of the alternative possibilities and aggregate them together, I am quite satisfied that the burden of proof in this case is not discharged. Accordingly, I do not find that the local authority’s case is proved in respect of any of the contested issues. By application of the binary principle, it is the finding of this court that neither the father, the mother, M or N are responsible for a sexual assault on L and nor are they responsible for her death. Accordingly, threshold is not met.”

The Court of Appeal firmly rejected this approach at para 51 of their judgment and emphasised that the starting point remains the test articulated in Re B (Minors) 2008 2 WLR 1 HL, discussed above:

“70. My Lords, for that reason I would go further and announce loud and clear that the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts. The inherent probabilities are simply something to be taken into account, where relevant, in deciding where the truth lies.


It is the binary nature of our fact finding system that makes the ‘balance of probabilities’ sometimes an uneasy place to be. If the court finds something happened then that is ‘the truth’ that all must abide by for all future dealings with the family. If the court finds something didn’t happen then it simply never did. I am not alone in feeling uneasy about the consequences of this from findings made on the lower standard of proof, particularly when the fact finding exercise is offered as ‘the child’s right’ to know ‘the truth’ about what happened – See comment from the Justice Gap and  The Transparency Project in ‘further reading’ below.

However, what is clear is that the Judge must meticulously examine a broad canvass of evidence and not be swayed by any ‘pseudo mathematics’.  while I can sympathise with a Judge who attempts to impose some clarity on the analytical process by affording a ‘value’ to the options of suicide, accident, or deliberate killing, this is now clearly identified and rejected as unlawful.


Further Reading

  • There is an interesting article about the importance of ‘beyond reasonable doubt’ by BarristerBlogger;
  • Here is a useful  article by Simon Goddard which discusses in more detail the standard of proof generally, and with particular reference to cases involving suspected non – accidental injury.
  • We discuss how to get the best evidence to make the right decisions for children in our post ‘Achieving Best Evidence in Children Act cases’.
  • There is concern that the ‘balance of probabilities’ standard is structurally unfair – can a ‘fact’ really be found on 51% certainty? See this article from The Justice Gap, commenting on the tragic case of Poppi Worthington.
  • You can’t handle the truth – The Transparency Project, raises unease that more weight is being put on the balance of probabilities than it can reasonably carry.
  • Lucy Reed discusses on Pink Tape her unease that barristers facing a disciplinary charge benefit from ‘beyond reasonable doubt’ but parents will lose their children on the lesser civil standard.