A & Ors (Care Orders at Home)

LORD JUSTICE BAKER :

1. At the conclusion of an appeal hearing this morning, we allowed an appeal by consent against care orders made in proceedings under Part IV of the Children Act 1989 in respect of five children. We substituted interim care orders and remitted the matter for rehearing before another judge. This judgment sets out my reasons for agreeing with that outcome.

2. The five children are four girls – A, aged 13, B, 12, C, 10, D, 9 – and a boy, E, aged

8. They are part of a family which has been known to social services for over a decade. They have three older siblings, all now adults. The eight children were the subject of earlier care proceedings in 2019, arising out of allegations that the father was physically chastising the children. It was also asserted by the local authority that the mother had failed to intervene to protect the children, and that both parents had failed to engage with professionals in order to reduce any risks to the children. After a contested hearing before HHJ Tyler in November 2019, findings were made that the father had been physically abusive towards the three oldest children by his use of unreasonable physical chastisement. On the basis of those findings, the local authority sought supervision orders and the children’s guardian recommended care orders. In the event, however, the judge made no orders, but instead urged the parents to voluntarily attend a parenting course.

3. The family came to the attention of social services again in February 2024 after A (then aged 11) had gone missing from the family home on several occasions. In the course of social work inquiries, A alleged that her father had hit her across the face following her return, that he regularly threatened to hit her, and that she did not feel safe at home. But the parents refused to engage with the local authority and did not attend an initial child protection conference on 16 May 2024. A’s allegations were investigated by the police who decided to take no action.

4. On 24 May 2024, A was involved in a violent physical altercation with another girl of a similar age. The fight was recorded on video and the recording was produced in the care proceedings and seen by the judge and by this Court. It is asserted by the local authority that the other children were present during this incident, that the parents encouraged A to assault the other child and that they failed to intervene. In the recording, the father can be heard attempting to prevent a third party from intervening.

5. On 29 May 2024, the local authority filed this application for care orders and initially sought the removal of the children under interim care orders. In the event, at a hearing before a district judge, the parties agreed that the children should remain at home under a safety plan or contract of expectations, with an order excluding the father from the family home and a provision that the father’s contact with the children should be supervised. Although the parents agreed the plan, they never signed the document and it is alleged by the local authority that they broke the terms of the agreement on many occasions and that they continued to refuse to engage with local authority support. The father stopped attending supervised contact on or around 30 September 2024 and the local authority became concerned that he was visiting the family home.

6. During the proceedings, the local authority became increasingly concerned about the safety and welfare of the eldest child, A. In June 2024, she was expelled from school. In October 2024, she took an overdose of ibuprofen and paracetamol, reporting that she did so because she felt guilty about the father not living in the family home and because she was being bullied. In that context, the local authority came into possession of another video recording, also produced to the judge and to this Court, showing A surrounded by a group of her peers and being apparently subjected to bullying.

7. It is the local authority’s case that the parents continued to obstruct their investigations and attempts to provide support and assistance. Arrangements were made for an assessment to be carried out by an independent social worker, but it could not be completed because the parents failed to respond to the social worker’s attempts to contact them and make arrangements.

8. Despite these difficulties, in its evidence for what was intended to be the final hearing, the local authority’s view was that the children should remain at home, albeit under a care order. Although the parents had largely failed to co-operate, the social worker had been able to identify positive features in the parents’ care of the children. The children were all closely attached to their mother and to each other.

9. The final hearing was listed before HHJ Tyler over five days starting on 3 March 2025. In the event, the judge was unwell on the first day, and the case came before the designated family judge, HHJ Singleton KC, for brief mention. Judge Singleton expressed the view that the local authority should consider changing its care plan to provide for the removal of the children. On the following day, the hearing started before Judge Tyler, but on the fourth day it was adjourned because the local authority informed the court that it proposed to change its care plans to provide for the removal of all five children from the mother’s care. It seems that the development that finally led the local authority to change its plan for the children was that, in the course of her oral evidence, the mother said that she would not work with the local authority or allow social workers into the home. The local authority understandably took the view that that made the original care plans unfeasible because they would not be able to work with the mother to address the risk factors while the children remained in her care. An application for the interim removal of the children during the adjournment was refused on the basis of a working agreement being proposed and accepted by the court setting out the expectations about the parents’ conduct and co-operation prior to the next hearing. In the event, the parents refused to sign the agreement and did not comply with its terms. In fa t, it subsequently transpired that, during the adjournment, the parents took the children to Blackpool without notifying the local authority and in breach of the restrictions on the father’s contact.

10. The part-heard final hearing resumed before the judge on 3 April 2025. The local authority sought care orders for all five children with care plans for removal from their parents’ care. The plans were for A to be placed in a therapeutic residential placement and for the other four children to be placed in long-term foster care (B and C to be placed together in one placement and D and E together in another placement). The care plan included provision for defined contact with the parents. The local authority also sought an order under s.34(4) of the 1989 Act permitting it to refuse contact between the children and the father. The guardian supported the care plan for A and supported placement of the youngest two children in foster care. The guardian recommended, however, that B and C remain in their mother’s care at home under a care order. The parents opposed the care plans, denying that the threshold criteria under s.31(2) of the 1989 Act were satisfied. They argued that all of the children should remain at home in their care under no order with no further local authority involvement.

11. After a further three days of hearing, judgment was reserved and delivered on 2 May. In view of the outcome of this appeal, it is unnecessary to set out the judge’s findings and reasoning in great detail. The findings made included reference to the earlier proceedings, the incident involving A on 24 May 2024, the fact that A had gone missing on a number of occasions, that the father had had contact with the children in breach of the contract of expectations, and a finding that the parents were “unwilling to meaningfully engage with the local authority and have frustrated efforts of reducing and monitoring the risks to the children, resulting in the children being at risk of physical and emotional harm.”

12. On this last issue of the parents’ lack of engagement, the judge concluded (at paragraph 42 of her judgment): “It is not therefore the case that [the mother] cannot and will not work with professionals, but as a couple [they] have taken what I can only describe as an intransigent position, an immovable position in that regard latterly. I think [the father] has been fairly resolute from the start that he is not going to cooperate with the Local Authority because he did not see a reason to, but [the mother] has been more flexible at times. By the conclusion of the evidence, it was clear that [she] had adopted the same position, in general terms, as [the father].”

13. In the course of considering the welfare options, the judge noted the position of the individual children. She noted that there are ‘many positives’ about the children’s relationship with their mother and described it as ‘also positive’ that the children say they miss their father. The judge said she was troubled by the prospect of A being “in a placement with other young people whom she does not know, and how she would choose to resolve difficulties and differences between them if there were any”. She described her current placement with the mother as ‘on more of an even keel’ whereas any other residential placement would be ‘an unknown’. Although the parents had failed to co-operate with social services, the judge recorded that the mother had expressed support for A receiving support from CAMHS and her school. She noted that B had a clear wish to remain living with the mother and had threatened to run away if placed away from the mother. She noted that C may also need some therapeutic input to assist her with resolving issues without resorting to anger and physical violence.

14. The judge expressed her ultimate conclusion in these terms:: “…I am driven to the conclusion (unattractive though I thought it was, and still think it is) that, in terms of the balance of harm, when one considers the risks arising from the threshold findings which I have made and the potential risks for each of these children, particularly of their emotional welfare, of being removed from the care of their mother, I am satisfied that it would be disproportionate to that level of risk to remove the children from the care of their mum.”

15. She continued: “As a result…, I am also more than satisfied that it is entirely proportionate in this very unusual situation, exceptional situation, that the local authority should share parental responsibility for the children. I am very aware of the limitations there are to that. This has been clear throughout the time where the local authority has held the interim care orders. What it does mean, however, is that the local authority will continue to have access to the children. The local authority will be able to make plans for the children. The local authority will continue to be able to regulate the contact between the children and the father until such time as there can be some sensible dialogue about how he can, if at all possible, return to the family home. That might never happen, and I am very clear about that.”

16. Following her judgment, the judge made a final care order in respect of each child. The order included a number of recitals, including the following: “On consideration of the oral evidence heard during the final hearing, the evidence contained within the Court bundle, the application of the welfare checklists and considering the balance of harm, the Court found that the local authority’s plans for each of the children was not proportionate to the risks of harm. The court considered the appropriate care plans for all the children was to remain at home with the mother, subject to care orders.” The judge listed the matter for a further hearing on 12 May. The order included a number of ancillary provisions, including a direction that the local authority file amended care plans in respect of each child by 30 May.

17. For separate reasons, the local authority and the mother each applied at the conclusion of the hearing for permission to appeal on the grounds that the care plans were unworkable. Those applications were refused.

18. At the hearing on 12 May, the local authority informed the judge that the parents were continuing to refuse to engage and that there was evidence (denied by the father) that he had returned to live in the family home. On that basis, the local authority applied for an injunction under the inherent jurisdiction excluding him from the home and its surrounding area. After hearing argument, the judge made an order under that jurisdiction that the father must not go to, enter or attempt to enter the family home or go within 0.2 miles thereof as outlined on a map appended to the order. The injunction was expressed as continuing to the next hearing fixed for 10 June. The father’s application to the judge for permission to appeal against the injunction was refused.

19. On 21 May, the father filed a notice of appeal against the care orders and against the injunction. His grounds of appeal in summary were: (1) The judge failed to undertake a sufficient analysis of the necessity and proportionality of the making of care orders in the context of the risks arising from the threshold findings made. (2) She failed to analyse sufficiently why the case was one of the exceptional nature necessary to justify the making of care orders with placement of the children at home. (3) She failed to provide an adequate analysis as to why an injunctive order excluding the father from the family home was necessary and proportionate in the context of the risks arising from the threshold findings made.

20. On the following day, 22 May, the local authority filed a notice of appeal against the care orders, putting forward two grounds which were, in summary: (1) The judge failed to properly evaluate the risk to the children if they remained in their mother’s care and was wrong to make final care orders on the basis that they remain with the mother while the father has family time supervised by the local authority. (2) She failed to weigh and balance the totality of the evidence available to her and so the factual findings, by not finding that the father had caused physical harm to the children, were flawed.

21. On 4 June, I granted the local authority permission to appeal on both grounds, and adjourned the hearing of the father’s application for permission to appeal to the appeal hearing.

22. On 10 June, a further hearing took place before Judge Tyler. Following further developments, the local authority had applied for the removal of the children but in the event elected not to pursue that course pending determination of the appeals, on the basis that the injunction against the father was extended. In those circumstances, the judge extended the injunction until 17 July 2025.

23. The parties filed skeleton arguments or position statements in response to the local authority’s appeal and to the father’s application for permission to appeal. Although the guardian remained of the view that B and C should continue to live at home under a care order, he supported the local authority’s case that A, D and E should be removed and also that the judge’s reasoning and evaluation of risk were flawed. He opposed the father’s application for permission to appeal. The mother supported the father’s proposed appeal against the injunction but did not support the challenge to the judge’s findings. All parties were agreed, however, albeit for different reasons, that the judge’s decision to make a care order on the basis that the children should remain at home with the mother was wrong.

24. In the event, a full consideration of the respective challenges to the judge’s analysis has not been necessary. At the outset of the hearing, the Court raised with the parties a more fundamental problem with the course taken by the judge. After discussion all parties agreed with our observations and the appeal was compromised on that basis.

25. The fundamental problem is this. Under s.31(3A) of the 1989 Act, “no care order may be made with respect to a child until the court has considered a section 31A plan.” When the judge made final care orders in respect of all five children. she did not have before her a plan which made provision for the children to live at home. The plans filed at the start of the final hearing had been withdrawn. The local authority was now proposing the removal of the children, and therefore no plans to that effect had been formulated. Accordingly, it was not lawful for the judge to make a final care order at that stage. Given her conclusion that the children should remain at home with the mother, the right course would have been to adjourn the hearing and invite the local authority to reconsider its plans for the children in the light of her judgment. Such a course was particularly important given the sharp divergence between her conclusions and the local authority’s position.

26. It was even more important, given her proposal that the children should remain at home under care orders. In Re JW (Child at home under care order) [2023] EWCA Civ 944, at paragraph 66, Sir Andrew McFarlane P, in a judgment with which the rest of the court agreed, endorsed the conclusion of the President’s Public Law Working Group that: “a care order on the basis that the child will be living at home should only be made when there are exceptional reasons for doing so. It should be rare in the extreme that the risks of significant harm to a child are judged to be sufficient to merit the making of a care order but, nevertheless, as risks that can be managed with the child remaining in the care of parents.” For that reason, any proposal that a child remain at home under a final care order requires particularly careful analysis. In the present case, the court was concerned with five children with different needs and vulnerabilities. It was also concerned with two parents who had resolutely refused to co-operate with the local authority. In those circumstances, it was plainly wrong for a final care order to be made, vesting the local authority with the overriding parental responsibility that comes with such orders under s.33(3) of the Act, without allowing the local authority the opportunity to give careful consideration to the judge’s evaluation of the children’s welfare and, if it considered it possible, to devise plans that enabled her conclusion to be put into effect. It was also essential for the children’s guardian to have the opportunity to respond to the local authority’s plans.

27. It is of course possible that, having had that opportunity, the local authority would have concluded that the judge’s proposed outcome was not one which could be put into effect. The question of what would happen next involves consideration of the respective roles of the court and local authority, a matter which has been the subject of anxious consideration in a number of cases, including Re S (Minors) (Care Order: Implementation of Care Plan); Re W (Minors) (Care Order: Adequacy of Care Plan) [2002] UKHL 10; Re W (Care Proceedings: Function of Court and Local Authority) [2013] EWCA Civ 1227; Re T (A Child) (Care Proceedings: Court’s Function) [2018] EWCA Civ 650 and Re T-S (Children) [2019] EWCA Civ

742. In the last-named case, Sir Andrew McFarlane P said (at paragraphs 35-6): “35. A cardinal principle embedded into the structure of the CA 1989 and the ACA 2002 is that a local authority and the Family Court have different spheres of responsibility with respect to the making of orders, on the one hand, and, on the other hand, the determination of the care plan to be followed for a child once an order has been made. The former is the exclusive responsibility of the court, whilst the latter is the exclusive responsibility of the local authority.

36. In almost all cases there is, at least by the conclusion of the court process, unanimity of view as between the local authority and the court over the care plan that is to be followed if a particular order is made. Where, as is currently the position in the present case, the view of the court and that of the local authority diverge on a central element of the plan for the child's future welfare, previous authority holds that a process of mutual respect and reconsideration should be undertaken with the expectation that, by the end of that process, sufficient common ground may be achieved to enable the court to make an order on the basis of a care plan that accords with an accepted view of the child's welfare needs. Where, however, an impasse remains, the court may have to choose between the 'lesser of two evils' or, where the circumstances merit it, contemplate formal challenge to the local authority's decision by judicial review.”

28. In view of my conclusion that the course taken by the judge in this case – to make final care orders without having allowed the local authority to reconsider its position and file care plans reflecting her welfare decision – was wrong, it is unnecessary to add to the jurisprudence on this difficult topic. More importantly, as there is going to be a rehearing, I think it not only unnecessary but also unwise and unhelpful to make any comment on what course the local authority, and ultimately the court, should take in this very challenging case.

29. On that basis, I joined the decision to allow the appeal and remit the local authority’s application for rehearing before another judge. The children shall be made subject to interim care orders until the conclusion of the proceedings or further order. There should be an urgent hearing before the next judge to consider allocation and case management issues. That will also allow the parties to raise immediate issues about the children’s welfare which may call for a change in the interim arrangements.

30. There remains the question of the injunction against the father. Here again there is a technical issue which in my view gives rise to a problem with the course taken by the judge. Under section 100 of the 1989 Act: “(3) No application for any exercise of the court’s inherent jurisdiction with respect to children may be made by a local authority unless the authority have obtained the leave of the court. (4) The court may only grant leave if it is satisfied that— (a) the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and (b) there is reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm. (5) This subsection applies to any order— (a) made otherwise than in the exercise of the court’s inherent jurisdiction; and (b) which the local authority is entitled to apply for (assuming, in the case of any application which may only be made with leave, that leave is granted).”

31. In this case, as Mr Michael Jones KC pointed out on behalf of the father (in a footnote to his skeleton argument) there is a statutory avenue for the making of an injunction pursuant to s.37(1) of the Senior Courts Act 1981, which has effect in the Family Court by virtue of s.31E of the Matrimonial and Family Proceedings Act 1984, as amended Schedule by 10 of the Crime and Courts Act 2013. Accordingly, the local authority should not have been granted leave to apply for an injunction under the inherent jurisdiction and the court should not have made an order on that basis.

32. As we are making interim care orders on allowing the appeal, it was therefore decided we should grant permission to the father to appeal against the injunction and make an order to the effect that the order under the inherent jurisdiction should be replaced with an exclusion requirement under s.38A of the 1989 Act on the same terms.

33. The order made at the conclusion of the appeal was thus in the terms set out at the end of this judgment. LORD JUSTICE PETER JACKSON

34. I agree. LORD JUSTICE BEAN

35. I also agree. ORDER UPON the parties accepting and the Court finding that care orders were unlawfully made in the absence of the local authority being given an opportunity to consider the court’s judgment and to provide amended care plans and it accordingly being unnecessary for the Court to determine the individual grounds of appeal raised by the local authority and the father. IMPORTANT WARNING TO [name] the father of the subject children, whose full name is contained in the Confidential Schedule to the Order If you, [name], disobey paragraph 6 or this order you may be held to be in contempt of court and may be imprisoned, fined or have your assets seized. ORDER

1. The Local Authority’s appeal against the final care orders is allowed, and the final care orders are set aside.

2. The matter is remitted for a full re-hearing before an alternative Judge, to be identified by the Designated Family Judge for Greater Manchester.

3. The children are placed in the interim care of the local authority until the conclusion of the proceedings or further order.

4. The father’s application for permission to appeal against the injunction order of 12 May 2025 and 10 June 2025 is granted.

5. The injunction made by the court under the auspices of the inherent jurisdiction on 12 May 2025 and further extended on 10 June 2025 is discharged and replaced by the order at paragraph 6 below.

6. An exclusion requirement is included in the interim care orders forbidding the father from: (1) entering or residing at the family home (the address of which is contained in the Confidential Schedule to this Order); or (2) going within 0.2 miles of the said family home. until the conclusion of the care proceedings or further order.

7. No order as to costs save for a detailed assessment of the costs of any party in receipt of public funding.