Care Orders Versus Supervision Orders - Which One and Why?

Hello. Welcome everybody when I'm so after Mahmoud and today I'm going to be speaking to your back care Orders vs supervision orders, which one is applicable and why? So despite size session through data laws of May 2017 will go through some of these elements with you and really to try and iron out any questions you may well have of the difference between these orders and also the similarities insofar as they are concerned. So I've prepared a couple of slides for you just to go through these areas and then there's some questions and discussion points thereafter to assist you with. Okay, so really first thing I suppose is really to ask ourselves what the what the effect of these orders are and of course with that in mind these are both public lauder's. These are applied for in the section 30 one of the Children active age nine and uh it will be ordinarily most cases the local salty or an authorized person on their behalf who will be applying for such orders. The care order gives the applicant local authority parental responsibility for a child. Was the supervision order does not. The care order gives the local authority prevent responsibility, which they would then share with other people who currently also have parental responsibility. It was a supervision order enables them to advise, assist and befriend the child in these circumstances. Now, one of the things to bear in mind is that even though a care order does give parental responsibility, there are of course limitations with that. And this is also applicable in the case of interim care orders, full care orders if they are made will continue until the child is 18 years of age and less discharged sooner. Was with an interim care order. This can only be made for the duration of the proceedings. So typically for care case, for example, careful supervision order application is lodged and let's say it Lasts for a period of some 26 weeks. For example, then the interim care order could be made for a maximum period of the Duration of the, assuming that some things are going to extend beyond 26 weeks. Of course it's possible for the interim care and interim supervision order, respectively, to be made for longer if necessary. Like I say, there are limitations with the prevent responsibility which local authority does acquire under a care order interim care order, even though it allows them to take steps such as uh deciding where the child is placed where the child is accommodated, allows them to take uh certainly steps in so far as regulating contact and also issues of authorizations and issues over consented and medical intervention. There are limitations. One of the limitations is this uh you'll find out under Section 33 Subsection three. Subsection a of the Children activated nine. It specifically provides that the local authority may not cause a child to be brought up in a different religion to that of the child's family, even with an interim care order or care order. And therefore they must give due regard to the chance, religious, cultural affiliation. And now this is where interestingly in The cases of adoption. For example, you've got section one Subsection five, the adoption Children Act of 2002, which in England was repealed a few years ago. Uh because of the concerns that were raised as to the fact that was being argued that there may well be cases where by local authorities, uh we're giving too much regard to try and find a perfect family, for example, when it comes to adoption. But despite that, you'll find that section one subsection one of the adoption Children at 2002. Still very much is applicable insofar as ensuring that if adoption is sought for the child, then in those circumstances it's got to be the right order, not only for a child's minority, but indeed for life. And if it's not a question of finding a perfect match, But one which will be to meet as as many of your child's particular requirements and needs as is required. So very important as far as the limitation when it comes to a care order. One of the other limitation is a care order does not allow the local authority to appoint a guardian for a child. Now, here we're looking at testamentary guardian, but of course a parent who has parental responsibility would be able to appoint. Also Care order does not allow the local authority consent to Charles adoption. Again, the only person who can consent to a child being adopted, in terms of a person or body who has parent responsibility is in fact a parent with parental responsibility and also one of the other limitations is this whilst there is a care order, interim care order in place that no one may cause a child to be known by new surname or indeed to make arrangements for the child to be removed from the United Kingdom without the consent of everybody else with parental responsibility or leave of the court. However, if, say the local authority, I've got the benefit of an interim care order or care order and say the charges placed in foster care in the foster care wishes to take the child overseas for so holiday. Then in that situation, the local authority consent consent to child leaving the jurisdiction for a period of less than a month. And this is such as to enable in the child to the gone on holiday. For example, in no circumstances under consent of a parent with put into responsibility or leave of the court provided its for less than a month would not be required in those circumstances. No. Well, the other issues is the parental responsibility itself that the local authority acquires under a care order. Section 33 subsection four of the act provides that they can access to the local authority can exercise their parental responsibility to safeguard and promote the charts welfare. Uh And therefore this is where clearly when it comes to matters over, for example placement and accommodation. But of course they do need to ensure that they consult the child's parents and the people who are involved and also take into account the wishes and feelings of the child and also other parties in those circumstances. So again, very, very important to bear that in mind in those circumstances. Now there are other limitations as well. Of course, when it does come to the the care order, interim care order. And I've mentioned a case of Barnett against barnet lbc against A. L. And others. For example, it's a recent case. This was a 2000 and 17 case. And what I found particularly interesting about this is it relates to the issues surrounding vaccinations. And this was one whereby a seven month old child, the local authority who had the benefit of an interim care water. They wanted to have the child vaccinated against various uh types of vaccines. There was the influenza type B vaccine and also the PCV vaccine in both type situations. The mother in fact objected to the child having this vaccination. Her argument was that she had elder Children and her argument was that she had had these vaccinations done of her elder Children and she argued that they had suffered certain side effects which which her chart to go through again. But in fact, the medical evidence did not support that. In fact, there was no evidence in the records to suggest, and in fact, that had been the case. The medical, the medical evidence shoulder. In fact, of these vaccines were not uh administered, that there was potential risk of harm to the child which could result in serious illness and potentially in some extreme cases, even death. What's interesting about this legally, this case is the fact that even though the local authority had the benefit of an interim care order, that does not enable them to go ahead and consent to this form of vaccination without either in this case, the consent of the parent with parent responsibility, or indeed in order from the court and in so far as applying to the court for an order which they did, Section nine. Subsection one of the Children and specifically provides that a local authority could not apply for specific issue orders in relation to the issues issue of vaccination, for example. And instead the local authority would need to then seek to invoke the inherent jurisdiction of the High Court With a view to an invitingly in high court jurisdiction under Section 100 subsection for the Children to be utilized with a view to enabling the High Court to enable lawful authority to be granted to enable the vaccinations to then take place. So that's in fact what they did. They applied using the inherent jurisdiction of the High court fruit to enable or thought to be granted to them so as to carry out dear the vaccination. Now, in so far as the position with a supervision order is concerned as I mentioned, supervision orders would give the local authority the authority to advise the system befriend in those circumstances. It does not give parental responsibility as I mentioned. And the child is then placed under the supervision of the local authority in those circumstances. And that therefore effect would have to be given to the order on this basis. Now one of the things with a supervision order is that it is possible to attach conditions to these. And this is set out within Schedule three, part 2 and three of the Children Act. And for example, there is the power given to give directions to the supervised child. For example, so that for example, supervisor may require the supervised child to comply with any directions given to them, requiring them, for example, to do certain things, such as where the child is to live, for example, presented themselves at a place uh in relation to specified activities, for example, and this is where with the consent of the responsible person, supervision order may include a requirement that such steps are taken in order to ensure that the child's welfare is maintained when it comes to, for example, health appointments or otherwise. Now, in terms of the length of supervision orders and care orders, as I mentioned, an interim care and interim supervision order can only continue for the duration of proceedings with a care order. This will be Made up until the child is 18 years of age unless it's discharged sooner. So It can be made for potentially two for 18 years, as far as a supervision order is concerned. Uh This is in fact a Different section 91 of the Children, for example, provides that supervision orders or cease to have effect at the end of one year, beginning with the date on which it was made. But it may be extended for potentially further two years thereafter. Which would require application to be made for an extension. So potentially a supervision order can be made for a period of up to three years. And this is where you'll find that in these types of situations, it may well be necessary for the local authority than to apply for an extension to the supervision order once The initial 12 month or up to 12 month period has in fact expired. Not a case of SJ, a minor care or supervision order of 1993s of a useful case because this is a case which sets out the differences between care and supervision order. So uh for example, this case highlights that with a care order, interim care order, the local authorities granted parental responsibility and therefore they have came control over the arrangements for the child in an emergency. For example, after the authority to remove the child to a place of safety without recourse to court, as long as they can justify that it was necessary and that it was a proportionate step to take in those circumstances was with a supervision order to. Local authority does not have parental responsibility in that regard and therefore safeguarding the welfare of the child rest very much upon the child's carers rather than upon a local authority. That local authority like say, is there to advise the system befriend in those circumstances. And of course it may be the case that if there is the benefit of a supervision order and the local authorities do, you need to take emergency steps, then it may be that they need to be lodging an application for an emergency protection order under Section 40 four of the Children Act, for example, or maybe seeking a care order, endorsed circumstances. And one of the other differences between a care and supervision order is that which relates to the exclusion provision, that is to say that with an interim care Order, as opposed to a final full care order, it is possible for the court to attach an exclusion requirement under section 38 a of the Children Act. This is where, let's say the local authority of large care proceedings based upon domestic abuse. As the principal reason, let's say the local authority of the view that they are content for the child to remain placed their home with the mother, but under the basis of an interim care order and they seek for there to be an exclusion requirement in the section 38 38 a. So as to require the father to vacate the property as long as they are satisfied that the mother will be able to look after Charles needs in those circumstances. And as long as the father then remains excluded, possibly with the benefit of maybe even a power of arrest. And if they feel that the child's welfare will be adequately met in those circumstances, then that's where you may find that the court will then enable the interim supervision order to continue on that basis with the child being placed along with the parent, either mother in that situation and for the exclusion requirement to be attached. So that's very much where those types of situations may well actually prove successful. Now, one of the other key similarities between uh one of the other differences I should have said is with a supervision or the court does have jurisdiction to also make in addition to the supervision order, maybe a child arrangements order. So for example, it may be the case that if there is a supervision order made alongside that there is an order for say there to be uh the provisions surrounding as a contact, for example, in that situation or perhaps a specific issue in those circumstances. Sometimes you find that it may be the case that the court is going to be granting a child arrangements order, especially find that child lives with the grandmother alongside that there is a supervision order so as to enable that placement and to be supervised in those circumstances. So that can happen was that's not the case with interim Karen care orders. It's not possible to have a child arrangements order running alongside a interim care or care order in those circumstances. And so far as similarities between care and supervision orders. One of the key similarities is the fact that before either order, whether it's an interim or full order is made, the court need to be satisfied at the threshold criteria are met. Now, the threshold criteria do differ depending upon whether one is applying for an interim or a full order. Uh As far as an entry model is concerned, Section 38 Subsection two of the Children Act would need to be met. And this is where many of you will know that the local thought wouldn't satisfy the court, that there were reasonable grounds to believe that unless the child concern is suffering was like to suffer significant harm and that harmful likelihood of harm is attributable to the caregiving to a child would like to be given if the order were not made for not being what it would be reasonable to expect a parent to give. Or of course the other part of the limit could be used, which is where one is stating that the child is actually beyond parental control. Now, the important issue here is the fact that with these orders, The interim order, one needs to show that there are reasonable grounds to believe that the child concerned is suffering or like suffer significant time. Was for full order under section 31 subsection, two it's not sufficient to show that are Reasonable granted. Lee one needs to go further and beyond that to show that the child concerned is in fact, suffering was like to suffer significant harm at the point at which protective measures were taken. Now one of the other key similarities between a care and supervision order is this, if the threshold are not met for purposes of section section 30 1 2 or 38 to then the court cannot in fact go on and decide what we'll do if any to make. And the only exception tonight is if, say, the local authority of logical care or supervision order application and let's assume they are going to be seeking to apply to withdraw from the proceedings, then that situation, it would not be necessary to satisfy the pressure of criteria before the court then goes on to hear the application as to whether or not to allow permission to withdraw from the proceedings. This was made very clear in the case of WBC against a this was a 2000 and 16 family court decision, but by here, the local authority were had to put together a threshold statement on the basis that they were relying upon Section 31 to be, and that is that the child was beyond parental control. Now, what was important about this case is that the court questioned whether or not the threshold need to be met at all. If the parties, as in this case, we're agreed on there being no order. And in fact, the court did go on to say that when it came to public law proceedings as such as what had been lodged here. And in fact, there was a two stage approach. And in public law proceedings, the court did say that the determination of public law proceedings involves in fact two stage approach, And that is, one has to first deal with the issue of threshold and then once that start with then, and only then does kind of courting and gone and the old issue of welfare. So that's only the only exception. That is if local authorities seeking leave to withdraw from the persons Under Rule 29.4 of the FPR were here. One would not need to satisfy threshold before then went on and decided what order if any to make. And the court went on to say that if in fact the local authority cannot satisfy threshold at this point taking account the fact that the burden is upon them, then in that situation, it follows that the logical conclusion is that the court must dismissed the applications. That's very important to ensure that threshold and met before one can go on and decide what order if I need to make in those circumstances. This case is also very useful because it emphasizes the fact that there are of course, a range of orders which are available to the court need to consider and decided what order to make. But a court needs to work on a promise that they should start with a lesser interventionist principle and only make the more draconian care or interim care order if it's necessary in the circumstances. So if in fact the risk factors can be adequately dealt with by way of uh say either no order or perhaps an interim supervision order or supervision or have been granted. And of course, the court can do that without the need therefore, to make them more draconian order in those circumstances. Now, finally, what I wanted to discuss with you is the position surrounding the age of the child, because this has been a recent issue which has cropped up in a recent authority. So, for example, in the Case of reem Children, this 2016 Court of appeal decision. The court really reinforced the position surrounding the continuation of care or supervision orders. And the question therefore, is kind of care or supervision order, whether it's on an interim basis or For final order be made beyond the age of 16 or 17 for the child. And this case makes it very clear, Lord Justice McFarlane made it very clear that there was no jurisdiction under the Children Act of 89 to make a care order with respect to a child who has reached the age of 17 or 16. In the case of a child who is married, always a civil partner. And this was made very clear and is made very clear when one looks at Section 31 Subsection three of the Children Act 1989, and this provision applies just as much to an interim care order as it does to a final care holder in those circumstances or the same principle would apply here. Or it's a very important therefore, to bear in mind that there are limitations as to uh the length of time. So the age after which these orders can be made. Having said that if say you have already got a child who say Approaches 17 who is not married nor civil partner or in a civil partnership who has already made subject to a full care order. In that situation, the order can in fact continue Up to uh, the 18th birthday. And this is made very clear under Section 90 One subsection 12 of his Children act, which provides that where care water has been made prior to a child, 17th birthday. And the care water will actually continue in force until the charge Attains the age of 18 unless it's brought to an end signal in those circumstances. Okay, so you can see today, I've spent some time going through with you what supervision orders are. Care orders are differences between these and also the similarities between these and you can see there are certainly a number of similarities between them. I hope that's been a useful session for you. And I thank you very much indeed for listening. And I'll speak to you next time. Thank you very much. Bye for now.