J & Ors (Children: Interim Removal), Re
[2023] EWCA Civ 1266
JW (Child at Home under Care Order)
4 August 2023
[2023] EWCA Civ 944
Court of Appeal
A judge ordered the government to take over the care of three children even though they were safely living at home with their mom. A higher court said that was wrong. The government can still help the mom and kids, but they don't need to take over completely.
Key Facts
- •Care proceedings concerning three children (girl, nearly 14; boys, 11 and 7) whose mother had a relationship with Mr. P, who had a history of child sex offences.
- •Mother was aware of Mr. P's past and initially agreed to a safety plan where he moved out.
- •Mother's cooperation with social services was inconsistent, leading to care proceedings.
- •Children remained at home under an interim supervision order throughout proceedings.
- •HHJ Harris-Jenkins made full care orders with a care plan for children to remain at home.
- •Mother appealed, arguing care orders were wrong and proceedings should have been adjourned.
Legal Principles
Threshold criteria for care or supervision orders: significant harm to child attributable to parental care or lack of control.
Children Act 1989, s 31(2)
Paramount consideration of child's welfare when deciding on orders.
Children Act 1989, s 1(1)
No order should be made unless it's better for the child than making no order.
Children Act 1989, s 1(5)
Care order places child in local authority care; authority shares parental responsibility and can determine extent of other's parental responsibility.
Children Act 1989, s 31(1)(a), s 33
Supervision order doesn't give local authority parental responsibility; relies on parent's cooperation; enforcement is through court application for variation or discharge.
Children Act 1989, s 35, Schedule 3
In cases involving removal from home under a care order, unless an emergency exists, parents must be given notice and an opportunity to challenge the removal through court proceedings (injunction or discharge application).
Re DE (2014)
Care orders with children remaining at home should be made only in exceptional circumstances; proportionality is key.
President's Public Law Working Group (PLWG) Guidance
Outcomes
Appeal allowed.
The judge erred in finding exceptional circumstances justifying care orders. The risks were not immediate; the support plan was the same under either order; and any removal would necessitate further court proceedings. A care order offered no additional practical protection.
Supervision orders made instead of care orders.
Supervision orders were deemed sufficient to address the risks and ensure the children's welfare, aligning with PLWG guidance.
Ground two (adjournment) dismissed.
An adjournment would have created an open-ended delay, not justified given the circumstances and the 26-week timetable.