Re D (Care or Supervision Order)  2 FLR 423
The father had a conviction for cruelty to a child and had served 18 months when a child in his care died. The LA was concerned for the safety of a different child of a relationship between the father and a different mother. An interim care order was applied for while assessments were made. The mother alone had PR. Having agreed a supervision order the GAL sought a care order. The parents supported the view of the LA that a supervision order met the needs of the child. Experts in the case agreed that the child was at risk if allowed to live with the father. The father did not accept his own culpability for injuries in the previous instances.
The history of the case firmly pointed to a care order. The protection of the child was the decisive factor and overrode the LA view that, as the child was thriving, and a care order would undermine co-operation with the social services, a supervision order would have been adequate.
Re S (J) (A Minor) (Care or Supervision Order)  2 FLR 919
Mother and father had 2 children J and K. There was a history of violence by the father to the children. K was removed to foster care but the mother continued to care for J after breaking up with the father. J thrived in the sole care of the mother. The LA sought a supervision order. The mother reconciled with the father and the LA wished to change their application to a care order. Before the hearing the LA changed their mind again, in consequence of the care plan, and once more sought a supervision order. The Official Solicitor recommended a care order.
The threshold was satisfied, and in deciding what order to make the court had to be clear what risks J might face in the future. A supervision order could guarantee access to the home supported by a warrant if necessary (s.102). An EPO could be sought if necessary and J was on the protection register so periodic reviews would be conducted. This was a strong package but left PR with the mother. However, a care order was better since the LA would be in a position to enforce requirements for J’s safety more so than if a supervision order were made.
Re T (A Minor) (Care or Supervision Order)  1 FLR 103
The parents had five children. There was massive neglect in the family and the children were subject to long-term care orders. A child T was born to the parents. A month later care proceedings were commenced and a family assessment took place. During this time an interim supervision order was made and T remained with her parents but in 1993 a care order was made. The mother appealed.
The LA could place the children with their parents even if a care order were made. The parents did not lose PR under a care order. Even though the child had not suffered any significant harm as a result of the care of the parents, a care order could be made if previous examples of parenting had led to harm in other children of the same parents. The limits of a supervision order did not begin to address the problem of parents who exercised PR in a way that merited criticism.
Re DH (A Minor) (Child Abuse)  1 FLR 679
Mother convicted of child cruelty to D after a series of incidents diagnosed as Munchausen’s by proxy. Following an EPO, care proceedings were started and, by consent, the LA was granted a series of interim care orders. D ended up with his father where he thrived. Neither mother nor maternal grandmother had contact initially. A psychiatric report said that the mother suffered from a treatable personality disorder and that supervised contact posed no risk to D. The LA said all contact should be terminated between D and the mother, but the father and the GAL thought that no benefit would be derived from completely cutting off contact with D.
Supervised contact should be maintained with the mother while further assessment of her was undertaken. There was value in maintaining contact between D and mother to help him come to terms with what she had done.
A supervision order was appropriate. Supervision cannot be made a condition of contact, nor can it happen through a specific issue order. Although a family assistance order might be justified where the s. 31 CA 1989 conditions were satisfied, there was scope to use a supervision order instead.
There is a positive duty as per Oxfordshire v M to make voluntary disclosure of medical reports even if they are contrary to the interests of counsel’s client. They may be witnesses of the court if no party wishes to adopt the report.
Evidence produced by covert video surveillance is generally admissible, even if illegally obtained, if it is in the best interests of child protection that it be adduced.
Re K (A Minor) (Care Order or Residence Order)  1 FLR 675
After a series of interim care orders under which two children resided with their maternal grandparents, the children were found to be suffering from a disease which would confine them to wheelchairs in the near future. The local authority sought to withdraw its care order applications and sought supervision and residence orders for the grandparents. The grandparents did not want this responsibility.
A care order could provide financial advantages for the grandparents and consequent advantages for the children. The grandparents had not made any application and would not be forced to accept the responsibility which the LA now sought to thrust upon them. If neither a care order nor a residence order were made the parents’ PR would revive. Although the LA was reluctant, if the threshold criteria were satisfied and the welfare of the children demanded it, the care order must be made.
Re B (Care or Supervision Order)  2 FLR 693
The parents had six children. One of the girls revealed that she had been repeatedly sexually abused by the father (F). The other said she had been beaten by him. F vanished before standing trial for assault. Care orders were made by consent regarding the two girls. The eldest boy was recognised to have special needs and a decision on his future was postponed. It fell to the court to decide if the remaining three boys needed care, as requested by the GAL or supervision as requested by the LA.
The threshold criteria were clearly met so it fell to the court to apply the test in s. 1 CA 1989. A care order was appropriate even if (i) all parties agreed that the children should not be removed from the home and (ii) the LA was seeking a supervision order. It was appropriate to make a care order if the stronger powers of the order allowing the LA to remove a child and placing on it a duty to safeguard the child were needed for the protection of the child. On the facts of the case the pressing needs of the children were to be closely monitored at home to ensure there was no contact with the father and to undertake work with professionals away from home to teach them how to protect themselves. This could be achieved with a supervision order with a schedule of agreement and a residence order. There was also evidence that the mother and the children would not respond well to a care order being made.
Manchester City Council v B  1 FLR 324
The child Z was found to have a brain haemorrhage which might or might not have been accidental in origin. The parents denied any non-accidental causation. The LA sought a care order with respect to Z. The GAL argued for a supervision order and the parents for no order. The medical evidence was conflicting.
The applicable standard of proof is the balance of probabilities, but the LA had to supply highly cogent evidence before the balance was tipped in its favour. The court preferred the evidence for non-accidental injury. However, the parents were a positive factor in Z’s life and his welfare required that he be rehabilitated with his parents, within the framework of statutory protection, so that he could be monitored by the LA. A care order might do this but a supervision order was deemed more appropriate.
Re V Care or Supervision Order)  1FLR 776
S had cerebral palsy. He attended special school but the mother and father did not agree on him being a weekly boarder. S was absent from school on a number of occasions and the LA became concerned, seeking a care order supported by the GAL. The trial judge did not see a care order as in the best interests of S and put a supervision order with conditions in place instead. The GAL appealed.
The concept of a supervision order subject to conditions did not fit the framework of the CA. Schedule 3 dealt with directions to be given to a supervisor, and the requirements imposed with consent but not conditions. A care order was needed to safeguard the wellbeing of S, as a supervision order with conditions was a wholly empty sanction.
Re O (Care or Supervision Order)  2 FLR 755
Proceedings concerned six children. The LA was concerned about specific health and developmental needs of the children, but on the whole their needs were met. The LA applied for a supervision order on these grounds. The GAL wanted a care order made so that the LA could share parental responsibility with the parents. There was no intention to remove the children. A care order was made at the final hearing and the parents appealed.
The court could reverse a decision not only where the justices had misdirected themselves as to the law, failed to take account of relevant matters, or taken account of irrelevant matters, but also where they had erred in their discretion in the way they had conducted the balancing exercise. Taken as a whole they had been fatally flawed in the way they had decided the weight of certain aspects of the case.
The justices had misdirected themselves in that they had referred to the ‘needs’ of the children rather than the paramount concern for their welfare. Further they had made errors in looking at the comparative advantages and disadvantages of care vs supervision orders. Supervision orders were made for all children.
Re S (Care or Supervision Order)  1 FLR 753
The mother set up home with the father who had a previous finding of fact against him for sexual abuse. S was the child of these two parents. The LA contended that in setting up house with the father, the mother put S at risk and sought a care order placing S with the maternal grandmother. The judge declined to make a care order and instead put in place a supervision order with conditions attached as a means of safeguarding S. The LA appealed.
The judge had not properly adverted to the difference between care and supervision in this case. The order that was actually made was not capable of conferring on S the degree of protection that the judge had sought to achieve. The risk of harm from abuse had to be weighed against the harm of possible removal from the care of S’s natural parents. The matter was remitted for a rehearing of the case.
Oxfordshire CC v L (Care or Supervision Order)  1 FLR 70
The children were placed under police protection orders, then returned to the family home when conditions improved, removed once more and then returned again. The LA applied for a supervision order but the GAL wanted care orders. The threshold criteria were conceded and care orders made. The LA appealed.
The CA 1989 allowed the court to make an order other than the one that was asked for. Where the children were to live at home in any event, three possible reasons might be advanced for making a care order.
The LA needed power not only to remove the children at once but to plan for care outside the family. Removing a child should not be a purely administrative decision.
It was necessary for parental responsibility to be shared by the LA and the parents.
It was necessary to place duties towards these children on the LA. It would be wrong however, to impose a care order where it was not in the best interests of the children just to encourage the LA to perform its statutory duties towards the child.
Re C (Care or Supervision Order)  2 FLR 621
J had seven older siblings, all subject to care orders. It was common ground at the time of the final hearing that threshold had been met and that whatever order was made, J would remain with the parents. Both parents and the LA wanted a supervision order but the GAL wanted a care order, as only this, she contended, would properly protect J. A care order was made and the parents appealed.
It was submitted that where the court was minded to make a stronger order than the one wanted by the LA there should be strong and cogent reasons for doing so. The question was still however a matter for the judge’s discretion. In this case the judge’s decision was within their discretion.
A – Y (A Child) 1999 (CA Ward LJ) LTL 6/10/99 Unreported
Social services were contacted by the father (F) who was concerned for the daughter S. Mother disappeared and left S uncared for. S’ name was placed on the child protection register. F, having settled down, wanted a residence order made in his favour. GAL and social services wanted a care order and for S to be placed in foster care. The judge ordered residence to F and a one year supervision order.
F’s early conduct had given rise to legitimate concerns about his parenting. However, he was trying to improve and S had expressed a wish to remain within the family. The case was not one that required in- depth assessment of F or his ability to deal with S’ emotional needs. The judge heard F give evidence and was able to assess the weight that should be given to it.
Re K (Supervision Order)  2 FLR 303
Mother’s child died in suspicious circumstances and, as a result, care proceedings were started in respect of the three older children. Both the mother and the LA agreed to a one year supervision order as they both concluded that the three older children had suffered significant harm. The GAL opposed the agreement and said that the criteria were not met unless findings of fact were made. Alternatively, even if they were made, the ‘no order principle’ should apply. The GAL argued that a supervision order would not improve the lot of the children.
The GAL’s opinion on threshold was admissible. The GAL was there to put the children’s case but in circumstances like this the GAL should think long and hard before upsetting an agreement between the LA and the mother. Regarding the supervision order, this should only be made if it made things better for the children. It would be wrong to make one simply to make the LA carry out its statutory duty. However, in this case the order was appropriate as it would encourage the mother to co-operate with the LA.
Re D (Care or Supervision Order) Sep. 2000 Family Law 600
The LA sought a supervision order and residence for the father of six year old boy. The GAL argued for care and residence for the father.
If the balance between care and supervision is equal, the court should adopt the least interventionist approach. There is a list of things the court should address itself to and the court should not saddle the LA with care orders, when they have so many demands on their resources, unless it is necessary to do so.
Re C (Care Order or Supervision Order)  2 FLR 466
Mother left baby of 2 weeks with father who had history of violent assaults on the mother. While in his care the child suffered severe injuries to the head resulting in brain damage. Father was found guilty of GBH and sentenced to 8 years. Mother wanted to continue caring for the child. Mother co-operated fully with social services and sought a residence order and a supervision order. The LA and GAL sought supervision.
A supervision order was proportionate to the risks faced by the child in this case. The risks the mother’s care presented to the child were small in nature and met by the supervision order. Under the ECHR any intervention into an article 8 right had to be proportionate to the legitimate aim of the intervention.
Re O (A Child) (2001) CA LTL 15/1/2001 Unreported
X was the child of a mother with four older children, all in foster care as a result of sexual abuse in a previous relationship. The mother refused to accept that the abuse had taken place. The LA applied for a care order regarding X when the baby was born because of the mother’s previous history. At the final hearing their case was that X was likely to suffer harm as a result of the mother’s mental health. The judge found that X was not at risk from sexual abuse and that any deterioration in the mother’s mental health would be slow enough to allow the LA to apply to the court should they need to remove X. The LA appealed.
This was a case at the lower end of the risk spectrum. Given the care plan and the number of measures the LA had in place it was difficult to see why a care order was needed. Further, given article 8 UCHR rights, proportionality was the key when deciding the level of interference necessary in a case such as this.
Re R (A Child)  EWCA Civ 1792
Appeal by mother against a care order made in respect of her 7 year old child. Care proceedings were issued after it emerged that the child’s older sister had been sexually abused by her father. The issue of the proceedings was essentially to ensure that the father would remove himself from the family and remain separately housed. There was no dispute that the threshold criteria had been crossed; the issue was the type of order to make. The local authority argued for a care order, all other parties including the Guardian supported by four mental health experts argued for a supervision order. The judge had concluded that although the remaining risk was currently low, the child’s welfare interests could only be protected by a care order.
Appeal allowed and the care order replaced with a supervision order. The court held that where the Guardian’s opinion was not followed there needed to be a clear and independent explanation for this, particularly given the weight of expert opinion. The obligation on a judge to explain and justify such a departure was therefore a heavy one. Court concluded that the original judgment was too concerned with the historic past, rather than the relevant present and agreed with the experts’ view that the making of a Care Order might have a detrimental effect on the mother’s self confidence, self esteem and emotional well-being.
B (A Child)  EWCA Civ 1254
The trial judge decided to make an interim supervision order in respect of one child and an interim care order in respect of the other as he considered that the parents treated one child better than the other, meaning the risk of harm to that child was lesser. The LA appealed and sought ICOs in respect of both children.
Appeal allowed and ICO granted. The court considered that the child’s welfare did demand her immediate removal from her parents’ care, and that there was abundant material (not least the views of the police) which warranted this. Held that the child’s safety, using that word in a broad sense to include her psychological welfare, did require interim protection. Agreed that authorities are of limited use in cases such as this because they can usually be distinguished on their facts. Concluded that the judge had conducted a flawed balancing exercise and had not adequately explained why he took the course he did. Stressed the need in this case for the judge to give adequate reasons for making an interim supervision order and to explain how an interim supervision order was to operate and protect the child, both of which he had failed to do.
N-F (Children)  EWCA Civ 274
Appeal by LA against judge’s decision not to make interim care orders in respect of the younger 2 of the 4 children in care proceedings. ICOs were made in respect of the older 2 children. The parents had significant cognitive difficulties. The Guardian had supported this decision as she considered that there was a clear distinction between the risks to the older and younger children.
Appeal dismissed. There was sufficient foundation for the resulting order and the judge was entitled to make the finding that the mother was prepared to and did in practice comply with most of the LA’s requirements. The judge was entitled to conclude that, with two of the children removed, the parents would be able to perform better parenting for the remaining two children. The court considered that, whilst the prospects for the younger children remaining with their parents were not high, removing them during the interlocutory stages was “quite another thing”.
Re T (Care Order)  EWCA Civ 121
3 month old baby suffered a head injury which it was concluded was non accidental and caused by one of the parents. During an adjournment of the proceedings the parents actively addressed the various significant concerns of the LA, and made such good progress that all the parties were in agreement that the child should be returned to their care under a phased rehabilitation plan. The LA sought a supervision order containing safeguards. Despite this the judge concluded that the child should be returned to the parents’ care under a care order.
LA’s appeal allowed. There were two principal reasons for making a care order rather than a supervision order: (i) that the local authority needed the power to remove the child instantly and plan for long-term placement outside the family without prior judicial sanction; or (ii) that it was necessary for the local authority to share parental responsibility with the parents. The fact that considerable help and advice might be necessary over a long period was not in itself a reason for making a care order and it was wrong to impose an order simply to encourage a local authority to perform its statutory duties towards children in need. The desire to ensure that local authority involvement lasted for more than 12 months was not sufficient justification for a care order, as this would depend upon the parents’ continuing progress. Having decided that rehabilitation was the proper course, and indicating that the power of the court to remove the child without court order was not crucial, the judge’s decision had been wrong.
Re L (A Child)  EWCA Civ 489
Appeal by mother against an interim care order which sanctioned the continued removal of her 4 month old baby from her care. The central issue in the case was how courts should approach an application for an interim care order where the interim safety of the child was not in question but for other reasons it might be in the child’s interests not to be reunited with their parents. In this case the mother had sentenced to three years’ imprisonment and sought to care for the baby in the prison mother and baby unit.
Appeal allowed and an interim supervision order substituted. The district judge had been entitled to find that the issues of safety at an interim stage included emotional safety. However, there was no risk to A’s emotional safety in the present case and it was inappropriate to class the longer term issues as a danger. It was further held that there is no different “test” to be applied in principle when considering first removal or a later refusal by the LA to return the child to the care of its parent(s). An interim care hearing is not designed to evaluate the longer term future except in so far as that is necessary to give directions for the management of the case. An interim care order should not be made just because it would afford an advantage to the local authority or prejudice a parent’s ability to put forward proposals to care for their child. The fact that a parent’s case has a poor prognosis in the long-term must be carefully balanced against the damage caused by separation to the development of a relationship between parent and child which would be a necessary foundation for future care. If, as here, safety would not be compromised in the short-term, longer term concerns were not a sound justification for continuing separation before a court could evaluate that on the basis of full and tested evidence.
Y (Children)  EWCA Civ 1553
A mother’s second appeal against a care order, placing her two children in long-term foster care. This was the second set of care proceedings. In the previous proceedings the children were placed with their mother under a supervision order. It was then found that their violent father had returned to the family home despite the serious risk he posed. In light of this care proceedings recommenced and a care order was made. The judge did not view the children remaining in their mother’s care as a realistic option, so did not consider it alongside the local authority’s plan for the children to be placed in foster care.
Appeal allowed. On the facts of this case, the option of the mother’s care deserved comparison alongside the local authority’s plan and a welfare evaluation was therefore necessary. In the absence of consideration of the mother’s care, the proportionality evaluation conducted by the judge could not have continuing validity. It was not right to remove the children from the care of their mother on a “marginal risk analysis based on the credibility of the parties”. Care by the mother is in the best interests of the children. This was a finely balanced case where the options were closely matched. The Court of Appeal replaced the care order with a child arrangements order and supervision order.
B and G (Children) (No 3)  EWFC 27
Case concerned 2 children. The LA sought for the children to be placed for adoption due to concerns of domestic violence by father, mother’s mental health problems, neglect and a lack of engagement with professionals. Alternatively they sought for the children to be placed with their father under a supervision order. The Guardian recommended that the children be placed with their father under care orders.
The President found that threshold had been established, albeit not by a very large margin. In light of the findings he concluded that the local authority’s case that the children should be adopted could not be approved, as this plan would not be in their best interests and would be a wholly disproportionate response to the comparatively little that had been proved against either parent. He concluded that the children’s best interests required that they be cared for by the father under a supervision order and section 8 order. The President considered that as the local authority was not proposing a care order in the alternative it would be a very strong thing to impose this upon them. He also considered that father was trustworthy and could be relied upon so Care orders were unnecessary.