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(Court of Appeal; Sir Mark Potter P, Arden and Jackson LJJ; 4 March 2009)
At the end of a fact-finding hearing, the judge rejected the parents' account of an accidental fall, concluding that the young child's serious injury was non-accidental, and had been inflicted by one of the parents. No care orders were made in respect of the child's elder siblings, but, following a parenting and risk assessment of the parents, it was recommended that only if the parents addressed the underlying issues of domestic violence, alcohol, anger management, and the need to work with a range of professionals, should the injured child be returned to the parents' care. The local authority prepared a care plan for the child to be cared for by a paternal aunt and her partner. However, during an adjournment of the proceedings the parents addressed the various issues with some success; indeed they made such good progress that an independent social worker concluded that the child could be safely reunited with parents, provided that a package of support was provided and that there was monitoring under a phased rehabilitation plan. The local authority prepared a new care plan, on the basis that the child would be returned to parents under a supervision order containing safeguards. This plan was supported not only by the parents but also by the guardian. Despite the support of all the parties for the supervision order, the judge concluded that the child should be returned to the parents' care under a care order rather than a supervision order. The judge was concerned that there was still no acceptable account of how the child came to be injured, and noted that a supervision order had a limited life and less force than a care order. The local authority appealed, arguing that the care order could not be justified in the face of the opposition of all the parties involved.
The authority's appeal was allowed. The judge had not been obliged to give effect to the parties' agreement; the court retained a discretion and indeed was under a duty to consider the appropriateness of the order before approving the care plan. The court's powers to make a care order or a supervision order under Children Act 1989, s 31(5) were not fettered by reason of any agreement between the parties as to which was the more appropriate order. However, when the court addressed this question, the court should examine the background facts as well as the reasoning underlying the agreement and should come to a measured conclusion, taking the relevant considerations into account. In particular, human rights considerations required the court to favour the less draconian provisions of a supervision order supported by the agreement of all the parties, provided that was consistent with the paramountcy of the child's welfare, and represented a sufficient and proportionate response to the risk presented to the child. If the decision the judge was disposed to make would result in rejecting the unanimous approach of parties, it was important that the judge justified his or her reasoning with some precision. Neither of the two key justifications for making a care order rather than a supervision order, that is the power under a care order to remove the child without the need for a court order, or the importance of the local authority exercising parental responsibility, was a factor in this case. There had been no strong and cogent reasons requiring the making of the more draconian order; the desire to ensure that local authority involvement lasted for more than 12 months was not sufficient justification.