by Paige Procter-Harris

A care order provides for the Local Authority to share parental responsibility with the parents of the children and the children whilst subject to a care order are ‘looked after’ children. Part 3 of the Children Act 1989 makes provisions for the duties placed upon local authorities in England for ‘looked after’ children.

In contrast the purpose of a supervision order is to ‘advise, assist and befriend the supervised children’, the Local Authority does not have parental responsibility nor the power to direct how anyone who has parental responsibility may exercise it under such an order as they do under a care order.

Factual background of Re: JW

The facts of Re JW are that three children were placed under a supervision order for the duration of care proceedings in the care of their mother. At the final hearing it was decided that all three children would remain in the mother’s care however, the Judge decided that a care order should be made rather than a supervision order, the mother of the children appealed this decision on two grounds:

1. The court was wrong to make final care orders instead of final supervision orders in circumstances where the care plans were for the children to remain at home with their mother.
2. Alternatively, in the event that the court had considered that more time was required for the mother to evidence the ending of the relationship with Mr P and/or her commitment to the proposed work, the court was wrong not to adjourn the final hearing and extend the proceedings.

Judgment of McFarlane LJ in Re: JW

McFarlane LJ in his Judgment considered the leading case law as well as the Presidents Public Law Working Group (PLWG) Guidance, whereby he further endorsed the recommendations of the PLWG and summarised them as follows:

1. a care order should not be used solely as a vehicle to achieve the provision of support and services after the conclusion of proceedings;
2. a care order on the basis that the child will be living at home should only be made when there are exceptional reasons for doing so. It should be rare in the extreme that the risks of significant harm to a child are judged to be sufficient to merit the making of a care order but, nevertheless, as risks that can be managed with the child remaining in the care of parents;
3. unless, in an exceptional case, a care order is necessary for the protection of the child, some other means of providing support and services must be used;
4. where a child is to be placed at home, the making of a supervision order to support reunification may be proportionate;
5. where a supervision order is being considered, the best practice guidance in the PLWG April 2023 report must be applied. In particular the court should require the local authority to have a Supervision Support Plan in place.

Within his Judgment McFarlane LJ also considered the Judgment of Hale J in Oxfordshire County Council v L [1998] 1 FLR 70 and Hale LJ’s approach in Re: O (Supervision Order) [2001] EWCA Civ 16; [2001] 1 FLR 923, he noted ‘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;

vii) 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;

viii) 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;

ix) supervision orders should be made to work, where that is the proportionate form of order to make.’

In Re: JW the local authority was clear that the measures that it would take to monitor and support the family would be the same whether a care order or a supervision order was made.

Outcome of the Appeal

The Court of Appeal allowed the mother’s appeal on ground one, holding that the Judge was in error in holding that this case was exceptional and that a care order was the proportionate and necessary order to be made but rejected ground two. Supervision orders were made in respect of all three children in place of the care orders.

This Judgement reinforces that when children are to be returned to or remain placed in their parent’s care then there must be exceptional circumstances that warrant a need for a care order to be made as opposed to a supervision order that would provide the same oversight necessary for the welfare of the children.

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The views stated in this article belong to the writers in a personal capacity.  No warranty is given, express or implied, in respect of the contents of this article.  Nothing in this article is tendered as or is intended to be taken as legal advice and the contents should not be construed or relied upon as legal advice.  Specialist legal advice should always be taken in every case noting that the application of the law may vary according to the individual facts of the case and the nature of the dispute. 

Keywords: Care Proceedings, Care Order, Supervision Order, McFarlane LJ, The Presidents Public Law Working Group, The Children Act 1989, Hale LJ