JW (Child at home under Care Order) – has anything changed?
A care order is made by the court. It gives the local authority parental responsibility (PR) alongside the parents. If needed the local authority can exercise its PR, above that of the parents, to protect the child.
Care orders at home at the conclusion of proceedings
The Court of Appeal decision in the case of Re: JW (Child at Home under a Care Order)  EWCA Civ 944, made clear it was wrong to make a care order for a child living at home. This was unless the circumstances were exceptional and particularly if the support provided under supervision orders would have been the same. In reality this is often the case.
Families were often reunited or remained together at the end of court proceedings under a care order placing the child at home. However, the reality can often be that the “support” doesn’t need a local authority to share PR.
Often the same support to protect the child’s wellbeing and manage any identified risks should be managed with the robust package of support and a supervision order. Therefore, not giving a local authority PR for the child. The lesser supervision order gives a duty to a local authority to ‘advise, assist and befriend’ the child but allows parents to retain responsibility.
In the case of Re JW, the President of the Family Division, Sir Andrew McFarlane, noted that there appeared to be a clear north/south divide. Especially when granting either care or supervision orders - the north made significantly more recommendations for a care order at home.
As a Northern (Yorkshire) firm we’ve seen a sea change in the majority of local authorities rightfully scrutinising the High Court decision. Many are now seeking supervision orders over what would previously have attracted a recommendation for a care order at home.
The courts will now need much more persuasion that a care order is necessary if a supervision order provides enough support for the child. We’ve seen this adopted in practice and any applications sought for a care order are being scrutinised by the court, lawyers and other professionals.
Existing care orders at home
Where an existing care order is in place, it needs to be reviewed immediately in light of a recent decision of the Court of Appeal. Parents and children need to know if those orders should now be discharged. Many parents may not realise that whilst the local authority can apply to discharge an existing care order, so can the parents or the child themself. The test is being able to demonstrate a significant change in circumstances.
Can you demonstrate “significant change in circumstances”?
If you are a parent or a child at home with a care order in place, consider:
- When was the last time the need for the care order for your child was properly reviewed?
- Did the last meeting you attended consider this?
- Should you be making an application to discharge the order rather than waiting for the local authority?