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Re JW [2023] EWCA Civ 944, 4.8.23 - Limitation of care orders whilst children living at home
This alert stems from relevance in a local case I was in recently dealing with care and supervision orders.
But in Re JW the President handed down a judgement in care proceedings in which he examines the role of care orders and supervision orders in care proceedings.
Being an alert, I do not go into the facts, but copy from the judgement of the President which seems to encapsulate the ratio of the case.
- The present situation, in which the law is applied in a markedly different manner in two halves of England and Wales, cannot continue. There needs to be a common approach throughout England and throughout Wales. What that common approach should be has been determined through consultation and discussion by the multidisciplinary membership of the PLWG (President’s Public Law Working Group Guidance). The recommendations at paragraphs 158 to 162, and the Best Practice Guidance at paragraphs 34 to 37, of the PLWG March 2021 report, and Appendix C of the April 2023 report on supervision orders, which have already had extra-curial endorsement, I now formally endorse in a judgment of this court. They must be applied in all cases. The approach taken by the PLWG is no more than the logical development of the earlier caselaw, once account is taken of the need for proportionality and once it is understood that, following Re DE (Child under Care Order: Injunction under Human Rights Act 1998) [2014] EWFC 6; [2018] 1 FLR 1001, there are only procedural differences between the power of removal where there is a care order or where there is none. As Hale J/LJ made plain, it has never been the case that a care order should be used as a means to ensure that a local authority meets the duties that it has with respect to children in need in its area, nor should it be used to influence the deployment of resources.
- The PLWG recommendations and guidance can be reduced to the following short points:
- a) a care order should not be used solely as a vehicle to achieve the provision of support and services after the conclusion of proceedings;
- b) 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;
- c) 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;
- d) where a child is to be placed at home, the making of a supervision order to support reunification may be proportionate;
- e) 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.
