Care Orders at Home – Honesty Truly is the Best Policy

September 14, 2021

Robert Povall

Robert Povall reflects upon a recent case of his in which the court considered and applied the Public Law Working Group’s recommendations on care orders at home. Robert offers practical advice for clients and practitioners on how to navigate care cases to achieve this less interventionist outcome.

Each time I represent a parent, I emphasise the importance of working openly and honestly with the local authority. Many of my clients respond that they do not feel comfortable doing so for fear of reprisal at a later juncture. My advice is almost always the same – it is not the local authority that makes the final decision but the court.

Several weeks pass and the next drug tests results are in. Once more, I face that uncomfortably familiar phrase, ‘the results obtained are not in agreement with their declaration.’ The client protests that there must be an error. And the smartphone analysis proving the client is still in that abusive relationship that led to proceedings in the first place? The dates are wrong.

And the cycle continues.

However, on occasion we meet that elusive species of parent that is frank about their flaws and the support they require. Rarer still are those who actively take steps to address those deficits and instil change. These are the parents who remind us that not every case ends in heartbreak. But why are such cases so rare and why is there a culture of hopelessness within care? What can be done to address this and achieve better outcomes for families and children?

In this article, I reflect on why it is incumbent upon us as practitioners, whichever party we represent, to foster a system which encourages parents to fully engage in proceedings, ensuring all parties grasp from the outset that the court is being increasingly reminded of a care order’s interference with family life and for greater consideration to be given to supervision orders, having been underutilised for so long.

For ease, any reference to ‘parent(s)’ applies to grandparent(s) or any other family member who have cared, are caring, or are seeking to care for children in care proceedings.

The Public Law Working Group

The Public Law Working Group Report 2021 (‘the Report’), published in March 2021, has been a hot topic in the family jurisdiction. Bold in its recommendations, the Report outlines how the court should be approaching the panoply of issues before it.  Unsurprisingly, one of the most debated proposals regards the most appropriate kind of final order in care cases where the final plan is one of placement at home with parent(s): only in exceptional circumstances should such a plan be approved by way of care order, with supervision orders being proffered in such cases instead.

The PWLG declared this a formal recommendation[1] having reported the following:

• that there is ‘an increase/significant regional variation in the number of children returning home under a full care order … of very real concern’[2]
• that ‘[care orders] should not be used as a vehicle to achieve the provision of support and services after the conclusion of proceedings’[3]
• that ‘the making of a final care order must be a necessary and proportionate interference in the life of the family’[4]
• that ‘the risks of significant harm to the child are either adjudged to be such that the child should be removed from the care of her parents/carers or some lesser legal order and regime is required’[5]

Of perhaps the most significance, the Report concludes, ‘it should be considered to be rare in the extreme that the risks of significant harm to the child are judged to be sufficient to merit the making of a care order but, nevertheless, the risks can be managed with a care order being made in favour of the local authority with the child remaining in the care of the parents/carers.’[6]

In my region, care orders at home were common. I cannot recall an occasion during pupillage or since qualification where I have seen a supervision order made in a contest. Thus, the recommendation has caused quite the shake-up. But is this a case of ‘easier said than done?’

Case Study

In May, I represented a mother in my first case since the Report’s publication in which the authority’s final plan was one of placement at home. The matter concerned the mother’s fourth child in care. Two key issues were the mother’s drug misuse and domestic abuse by the father.

Proceedings were issued in 2020, and the mother and child underwent residential assessment. The father presented an unknown risk by virtue of disappearance. The mother’s engagement with the placement was exemplary and included voluntarily informing the local authority that the father had made contact. She went on to successfully engage with drugs counselling until her discharge due to progress made. These actions marked the positive trajectory of the case not only with the local authority but with the court.

By January 2021, the local authority were so impressed by the mother that they amended their final plan of foster care to placement at home under a supervision order. This was supported by the guardian until the mother disclosed to her drugs support worker that she still used cannabis recreationally when stressed. The guardian formed the view that the mother may be slipping into old habits. The guardian was also concerned by the father’s unknown status and the potential threat he would pose, should he resurface and seek contact. The guardian’s position shifted in favour of a care order at home. The authority’s plan remained unchanged.

Following a contested final hearing, the court in its judgment described the mother’s honesty throughout the case as ‘characteristic’ and concluded there was no evidence upon which to find that she would not reach out to the council should drug issues re-emerge or if the father should resurface. The court noted that on each occasion the mother had disclosed information that may prejudice her case, this was done voluntarily, and that some of that information may have never been discovered by the local authority. She was commended for this.

After careful deliberation of the contested position and having considered the Report, the court granted a 12-month supervision order, deeming that this was not one of the ‘exceptional cases’ envisaged in its recommendations on care orders at home.

Conclusion

What lessons can we learn from the Report and this case?

1. Where parents are caring for children at home during proceedings, all parties must ensure that the court is fully apprised of the advantages and disadvantages of a supervision order as final order.
2. Local authorities must consider supervision orders within their final care plan in a way hitherto discounted, an alternative care plan must be before the court.
3. Parents and, in particular, guardians must ensure the local authority fully considers all the options, even if they would not support them.
4. All parties must plan ahead with case management directions, making the court aware from an early stage of the possible trajectory of the case – this will avoid delay and/or judicial criticism that insufficient consideration was given to the alternatives.
5. Advocates must ensure that the court is referred to the Report and its recommendations not only in this type of case, but all types of cases upon which recommendations were made.
6. Parents must appreciate the value of being open and honest with the local authority and with the court – they may wish to retain evidence of the same.

It is vital that practitioners inform clients of all the options available, whichever party we represent. All too frequently is the court presented with one solution which can leave parents feeling hopeless. It is incumbent upon those acting for local authorities to apprise the court of all the alternatives and for those acting for parents or children to ensure this is done.

[1]  Paragraph 198

[2]  Paragraph 158

[3]  Paragraph 159

[4]  Paragraph 162

[5]  Appendix F, paragraph 36

[6]  Appendix F, paragraph 37