R & S (Minors) (Salt Poisoning) (No.2: Welfare: Care Order or Supervision Order), Re [2025] EWFC 90

This is the redacted version of a confidential judgment delivered in private. The judge has given leave for this version of the judgment to be published on condition that, irrespective of what is contained in the judgment, in any published version of the judgment or reporting of the same, the anonymity of the children and members of the family must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.[2025] EWFC 90Before Mr. William Tyler KC, sitting as a Deputy High Court Judge
Between
A LOCAL AUTHORITYApplicantA MOTHERRespondentsA FATHERR (A Minor)S (A Minor)Mark Saunders of counsel for local authority, instructed by Lois Monks of JWP SolicitorsKaren Lennon of counsel for mother, instructed by Jamil Ismail of Petherbridge Bassra Solicitors.Nathaniel Garner of counsel for father, instructed by Clare McCourt of Bradford Family Law SolicitorsLouise McCallum of counsel for children, R and S, through their children’s guardian, instructed by Emma Grayson-Bollon of Chivers Solicitors

Parties and purpose of hearing

[1]I continue to be concerned with the interests and future of two children, R and S. R was born on [a date in] 2017, so is seven years old; S was born on [a date in] 2022, so is two years old.[2]The applicant for Part IV orders pursuant to the Children Act 1989 (“CA 1989”) is [a Local Authority] (“the LA”). The LA is represented Mr Saunders.[3]The mother of both children (“M”) is represented by Ms Lennon.[4]The father of both children (“F”) is represented by Mr Garner.[5]The children are represented, through their children’s guardian (“the CG”), by Miss McCallum.[6]The hearing before me on 14 October 2024 was an IRH, specifically listed with a view to final orders being made if possible. As it transpired, it was possible for the case to conclude. It was agreed by all that the two outstanding issues between the parties should be dealt with at this hearing, and on the basis of Counsel’s submissions, without oral evidence, those two issues being:a. whether the children’s permanent placement in their father’s care should be underpinned by a Care Order or a Supervision Order (both pursuant to Part IV of the Children Act 1989 (“the CA 1989”); andb. the frequency with which the children should continue to see their mother. Background[7]The Part IV proceedings were issued by the LA on 2 December 2022 due to its allegation that someone had deliberately poisoned S, when still a small baby, with salt, an action which could easily have led to his death.[8]Over thirteen days in March and April 2024 I presided over a fact-finding hearing, a process which was complicated both by the mass and the complexity of the evidence and by the fact that, in addition to the five parties who remain in the case today, seven further family members intervened, one legally represented and six acting in person. The joinder of the interveners was necessary as each of them was potentially a person in the (so-called) pool of possible perpetrators of such deliberate poisoning as I found to have occurred.[9]My judgment (published in redacted form as [2024] EWFC 439) which followed that hearing was lengthy and would have to be read alongside this judgment fully to understand the background facts which have influenced my reasoning in the current decisions. In the event, I did not make findings against any of the interveners or, indeed, F. My findings were as follows:
‘a. on or before 27 November 2022, [M] contaminated two containers of powdered formula milk intended for her son, [S], by adding table salt to them; b. on 27 November 2022, [M] made up milk from one or both of the contaminated containers and fed it on at least two occasions to [S]; c. on 27, 28 and 29 November 2022, at hospital, [M] allowed [S] to be fed with milk she knew to have been made up from one of the contaminated containers, including through a nasogastric tube; and d. at all such times [M] was aware that excessive salt intake is likely to cause significant harm to an infant.’
And, necessarily following from the above, ‘thatat the relevant date, [S] was suffering and was likely to suffer significant physical and emotional harm, and that R was likely to suffer such harm’. Sources of evidence and parties’ positions[10]In the wake of the judgment, a number of assessments were commissioned, viz.:a. a psychological assessment of M, undertaken by Clinical and Chartered Psychologist, Dr Laura Pipon-Young (together with written answers to questions put pursuant to Part 25, Family Procedure Rules 2010 (“FPR 2010”));b. an assessment of F as sole carer for his two sons, undertaken by Shamim Akhtar, Child Care Consultant (together with written answers to Part 25 FPR 2010 questions);c. a contact risk assessment of M, also undertaken by Shamim Akhtar (together with written answers to Part 25 FPR 2010 questions).[11]With the court’s leave, M obtained a provisional response from an independent social worker with particular expertise in ‘Resolutions’-type assessments as to the possible suitability of the case for such a piece of work, that is, an assessment involving a parent against whom findings have been made, who does not accept the truth of those findings, but whose family or support network may be such that safe reunification of the child or children in question is possible. While the initial view was tentatively positive, this was not taken further on M’s behalf when Dr Pipon-Young’s full report and responses were available.[12]In addition to the formal assessments, both parents have prepared final statements, the current allocated social worker (“SW”) has provided a final statement and, separately, her ‘balance sheet’ assessment of the realistic options, and the CG has completed her final analysis.[13]As at the date of the IRH, the position is as follows:a. M, while she does not accept the truth of my findings against her, acknowledges both the fact of their having been made and that the inevitable consequence of those findings and the conclusions of the assessments which followed them is that she cannot currently care for her children;b. M and F have separated; this, it seems, was explicitly in response to my findings and wider judgment and took place about five months ago; it is common ground that the parents have been in touch with each other since separation in order to discuss (via WhatsApp or similar) various issues relating to their children, but that there is no evidence of any collusion or concealment to suggest that the separation is anything other than genuine (and this notwithstanding F’s having voluntarily surrendered his mobile device up to the social worker for an unannounced ‘spot check’);c. as a result of the separation, M has moved out of, and F is currently living in the previous family home (which F was renovating during the period when S was poisoned by M in the maternal grandparents’ home); F’s home, while a little more work is needed to it, is suitable for F and the children;d. the process of reuniting the children to F’s care has begun in earnest; R has, within the last few days before the hearing, moved in on a permanent basis with F; the process for S, who was finding it more difficult, it seems, to detach himself from his paternal aunt, who has so selflessly provided a home to the boys for the better part of the last two years, was slowed down slightly, but was expected to complete within the fortnight following the IRH; ande. M has had regular and very frequent (i.e. three times each week) contact with her children since their removal from the parents’ care at the beginning of these proceedings some 22 months ago; by all accounts, this has been of a high quality.[14]As to the future, it is common ground between all parties that: a. the children should live with their father; i. can take place in the community and may include child-focused activities and entertainments; ii. must be less frequent than has been the case during the currency of the proceedings; iii. will be supervised, such supervision, at least in the short- to medium-term, to be provided by a professional rather than one or more approved members of the extended family on either side; c. F (and the broader family) will benefit from ongoing local authority support and the provision of various services (of which more below).[15]In summary, the parties’ positions on the two outstanding contested issues are as follows: type of[16]The LA justifies its assertion that there should be a Care Order rather than a Supervision Order with reference to two separate arguments, one deriving from its assessment of risk and the children’s need for protection, the other being founded in the differences between the two orders as to the powers and the duties each vests in and imposes on a local authority, and the implications of this dichotomy in practice for the family.[17]As to the former, the argument based on the risk to the children, Mr Saunders relies on the following factors (which I summarise):a. the findings: I have found M to have caused very serious harm to S, which, while I did not find there to have been an intention to kill, could easily have been fatal; her actions involved deceit and manipulation, and the dishonesty which was apparent from the outset has continued to date;b. non-acceptance by M: M does not accept my findings; further, she is frank in her aspiration for unsupervised contact, even for the return of the children to her care, in the future;c. non-acceptance by others: at the point of and maintained throughout the fact-finding hearing, each of the witnesses from the maternal family (with the sole exception of M’s sister-in-law (referred to in my fact-finding judgment by the anonymized initials “IA”), at whose feet M laid blame for the poisoning, wrongly as I found) was adamant in their refusal to accept that M could have been responsible for S having been poisoned with salt;d. the parents’ relationship: there has been domestic abuse in the parents’ relationship; as explored more thoroughly in my fact-finding judgment, the parents have previously separated and reconciled more than once, and they have in the past dishonestly withheld earlier rapprochements, including having moved back in with each other, from professionals, with a view to avoiding the unwelcome attentions of social services; the current separation is relatively recently embarked on (being about five months old), has not been tested outside proceedings, and comes after a united front had been presented during the fact-finding hearing and solidarity as a couple had been maintained in the immediate aftermath of my judgment;e. the father being a new carer: the children have never previously lived in the sole of F.[18]Relying on this combination of factors, the LA argues that the ongoing risk to the children, even after successful placement with F, is high, and of a magnitude at which the extent of the children’s need for protection renders both necessary and proportionate a Care Order, by virtue of which the LA will retain parental responsibility and with it both the power to direct what happens in the children’s lives and (in certain circumstances) the power to remove the children from F’s care.[19]The second limb of the LA’s argument for a Care Order relates to the different powers and duties which flow from the two different Part IV CA 1989 orders, the LA asserting that there is clear advantage to the children if the LA has a Care Order, as it will then both retain final decision-making power in respect of the detail and management of contact between M and the children and it will be able to provide significantly greater services to the family in support of such contact.[20]As set out above, the LA’s proposals for contact between M and the children have very recently changed from monthly for five hours at the weekend, to fortnightly for two-and-a-half hours after school. The reason for the change is that the LA proposes (indeed offers) to provide the necessary supervision, but that this is not likely to be available at weekends.[21]It is not only supervision which the LA offers. The LA also proposes, in relation to contact:a. to undertake regular reviews of the arrangements for and other details in relation to contact (including the appropriate frequency and duration); andb. to progress assessment of extended family members as prospective supervisors of contact. As to the latter, the LA considers that as things stand, paternal extended family members have decided to stand back from any possibility of their providing supervision for M’s contact, whereas maternal family members, some of whom would be prepared to provide such supervision, have not moved on sufficiently from their stances of absolute denial of even the possibility of M as a potential perpetrator to allow them to be considered as currently able to provide the necessary protection and to withstand the likely pressure on them from M.[22]At my behest, Mr Saunders took instructions from the LA in relation to the situation which would pertain if there were a Supervision rather than a Care Order. While reviews and the assessment of family members would still be offered under a Supervision Order (and contained in the corresponding plan), I was told that the LA would not provide supervision of contact on an ongoing basis. Rather, the LA might supervise one single further contact session, but would expect thereafter that the parents themselves source and fund a private contact centre or some alternative and appropriate private provision (e.g. FSW or ISW supervision via an agency). Mr Saunders did not accept the criticism, levelled on F’s behalf by Mr Garner, that this distinction in provision, contingent on the type of prevailing order, represented the LA seeking to put the court under pressure to accept its contention that a Care Order is necessary. Rather, it was, Mr Saunders said, simply a corollary of the different statutory and other duties imposed on a local authority in relation to a looked-after child for whom the authority also holds parental responsibility on the one hand, and a child whom the authority is bound to ‘advise, assist and befriend’ (see s.35 of the CA 1989) and who may or may not also be a child in need (see s.17 of the CA 1989) on the other.[23]The LA takes the view that the overall package in relation to the management and resourcing of contact which it can provide if a Care Order is made is qualitatively different to that which will be available under a Supervision Order. While regular reviews and the assessment of family members as supervisors will be available under either order, the duty to promote contact, the ability to insist on the imposition of the decisions reached in the reviews and the automatic ability to make available its own contact supervisors achieves, the LA argues, a far better overall situation for the children and the family in the difficult months after the conclusion of long-running and traumatic proceedings and during the period of adjustment for all involved to an entirely new status quo. The mother[24]M agrees with the LA that a Care Order is the appropriate order. Unsurprisingly, submissions made on her behalf did not focus on the risk she presumptively poses to her children, but on the need to secure optimum provision and to ensure the appropriate management of the arrangements for her to have contact with her children. With the maternal extended family considered currently inappropriate as supervisors and the paternal extended family having recently taken a step away from being prepared to supervise special occasion contact, it has never been more important, Ms Lennon argues, to secure the consistent availability of regular, good quality, supervised contact. If this does not take place pursuant to the LA’s responsible exercise of the discretionary duty imposed on it by virtue of s.34 of the CA 1989, then it can be achieved, Ms Lennon goes on, only by some sort of private law (s.8 CA 1989) order, perhaps providing for F to allow ‘reasonable’ contact, with further definition of this with reference to advice from the LA. Moreover, it is said on M’s behalf, that the guaranteed and cost-free provision of professional supervision which will accompany a Care Order, when compared to the insecure, uncertain and potentially costly alternative under a Supervision Order, should represent a strong factor in my analysis. The children’s guardian[25]The CG adopts the LA’s arguments in relation to the current risks and the need for suitably protective orders. The CG makes the point:
‘Consistent meaningful engagement with professionals, and adherence to the safety plans and a maintained separation of parents are not an optional extra or luxury, [R] and [S]’s welfare and safety depend on this. The court’s choice of order must be tailored to ensure this engagement and safety of the children is maintained.’
[26]Ms McCallum further emphasises the pressure to which the CG predicts F will be exposed from M and, in all likelihood, certain members of the extended family, given the combination of(a) M’s non-acceptance of the findings;(b) the entrenched and firmly-maintained refusal during the fact-finding hearing of any maternal family member to accept even the possibility that M could have been responsible for the poisoning, and(c) the fact that, by virtue of M’s and F’s respective fathers being siblings, and so M and F being first cousins, the distinction between the supportive and accepting paternal family and the denying and so non-protective maternal family is rather less sharp then might otherwise be the case.

The father

[27]F objects to the imposition of a Care Order.[28]On his behalf, Mr Garner points to the intrusive nature of a Care Order being such that its making must be justified with reference to the affected parties’ (in this case, particularly the father’s and the children’s) Article 8 ECHR rights. Such an order should be made, it is argued, only if the children’s protection requires such a level of intervention.[29]In assessing that required degree of protection, I should take particular account, Mr Garner argues, of the following factors:a. the primary risk in the case flows directly from the findings made against M; the means of mitigating this risk is to ensure that M’s contact with the children is appropriately supervised; if that simple precaution is imposed and maintained, that risk all but disappears;b. the ‘short-term’ nature of the parents’ separation is in fact some five months and counting; there is no suggestion of concealment; F immediately complied with, and was not compromised by the results of, a ‘spot check’ of his mobile ’phone; F has informed professionals and seems to understand that he cannot trust the mother and that to resume their relationship would be to choose her over the children;c. F has fully cooperated with the parenting assessment process, and with the LA and the children’s carers in relation to contact arrangements; Fs care-giving capacity has been positively assessed; a ‘shift in [F’s] parenting’ has been noticed by the ISW;d. F is assessed by the ISW as accepting my findings from the fact-finding hearing;e. there are no other substantial vulnerabilities in relation to F and his ability to offer safe, protective care; in particular, none of the common issues, such as substance misuse, recent domestic abuse, mental health difficulties or financial or accommodation insecurity is present.[30]The justification for a Care Order in circumstances when a child is placed back with one or more parents must derive from a clearly identifiable need to provide enhanced protection, argues Mr Garner, rather than as a vehicle to enable the family to obtain greater support from a local authority. As to the former, he points out that in the highly unlikely event of a significant and acute risk arising in an emergency, a local authority without parental responsibility has recourse to the standard arsenal of protective interventions (Emergency Protection Order, Police Protection Order), whereas in a non-emergency situation, the local authority could not lawfully use its parental responsibility to effect immediate removal without recourse to court. It is further pointed out that to make a care order would be to guarantee further litigation in the fairly near future, which is scarcely indicated for a family which has been through all-consuming litigation for the better part of two years. Drawing all of this together, Mr Garner points to Article 8 ECHR, and the requirement that state interference in its citizens’ private and family lives must be no more than is necessary and proportionate to the risk, carefully assessed, against which the intervention is designed to protect. The parties’ arguments: the mother’s contact with the children

The local authority

[31]The LA comes to court seeking a care order. If this is granted, it acquires parental responsibility for the children and also takes on various duties, including (pursuant to s.34 CA 1989) the duty to ‘allow the children reasonable contact with his parents’.[32]The local authority care plan as prepared for the hearing provides for the phased reduction of contact between M and the children from the current level of thrice weekly for two-and-a-half hours to a single monthly session of five hours. While the plan speaks of M being ‘tasked with finding a suitable third-party supervisor,’ and, ‘if this proves unfeasible, the parents will turn to private contact centres,’ the care plan also provides that the supervision will continue to be provided by the local authority ‘throughout the period of the Care Order’. Shortly before the hearing, the LA recognised that, as its contact supervisors do not routinely work during weekends, a once-monthly, five-hour session would not be practicable, at least during termtime, and so proposed instead fortnightly sessions for two-and-a-half hours.[33]The care plan provides for ‘regular reviews’ and the LA separately commits to an ongoing programme of assessing family members as supervisors, perhaps a little time after the dust of these proceedings has settled.[34]If I make Supervision rather than Care Orders, the LA role is, of course, significantly different. It does not have final say in relation to contact, and has rather different duties. Mr Saunders confirmed that, in that circumstance, the levels of contact set out in the care plans would simply become recommendations, that the LA would nonetheless commit to reviews and assessment of family members during the currency of the Supervision Order. However, the LA would not, in that event, undertake to supervise all maternal contact from within its own resources. Rather, it would supervise perhaps one further session in order to give the family time to source professional, third-party supervision.

The mother

[35]M points to the undoubtedly high quality of the contact which has taken place between her and the children since they were removed from the parents’ care. She has supported their interim placement with family members, and the children are consistently pleased to see her and enjoy spending time with her. Continuing contact at a relatively high level will tend to support rather than to undermine their new placement with F, Ms Lennon argues on M’s behalf, not least as this would act against any risk that the children associate the move to their father’s care with a loss of (or significant dilution of) their relationship with their mother. M proposes weekly contact.

The father

[36]F agreed with the LA care plan for monthly contact for five hours. He subsequently agreed to the revised proposal of two-and-a-half hours fortnightly. He indicates that he will continue to be guided by professionals, in particular in the event that the ongoing review process identifies the need to adjust the arrangements.

The children’s guardian

[37]The CG noted the quality of M’s contact with the children and recognized the need for a positive relationship to be maintained between the children and their mother. She was also conscious of the need for supervision and the current unsuitability of maternal family members to undertake this function.[38]Looking to the longer term, the CG said this:
‘When considering the recommendations of the local authority, I must balance the need for sustainable arrangements that ensure minimal disruption and provide the boys with stability and predictability. As the boys grow older, they will likely require therapeutically informed life story work to help them understand the reasons behind the decisions made. This process may be extremely upsetting and disruptive, potentially causing the children to question their identity and relationships with their mother. There is a strong possibility this could impact their views on their relationships and the time they spend with her. I appreciate this may be upsetting for [M] to read, but it is something the parents and wider family network will need to prepare for.’
[39]At the point that the LA plan was for monthly contact, the CG asked it to consider contact taking place instead at a minimum frequency of every three weeks. The CG agreed with the LA’s revised plan for fortnightly, shorter sessions. The law – Care Order v. Supervision Order[40]While Care Orders and Supervision Orders are both the progeny of a statute more than 30 years old, there has been an amount of recent jurisprudence guiding the lower courts in relation, in particular, to the appropriateness of each type of order in circumstances in which a child is permanently placed, at the conclusion of Part IV CA 1989 proceedings, back with his or her parent/s.[41]I had cause to consider the current state of the law in my judgment in Re P and Q (Minors) (No. 3) (Care Orders: Placement at Home) [2024] EWFC 154, writing as follows:[63]Noting that any Part IV order will almost inevitably interfere with a family’s Article 8 ECHR rights, the order made, and the plan underpinning it, must be both necessary in the circumstances and proportionate to the harm against which the order and plan are designed to protect.[64]Sir Andrew McFarlane PFD, giving the judgment of the Court of Appeal in Re JW (Child at Home under Care Order) [2024] 1 FLR 409, considered and gave guidance in relation to the circumstances in which it will be permissible for the Family Court to make a final care order to give effect to the placement of a child at home with his or her parents. I must consider that judgment in some detail before I decide what conclusions to reach in this case.[65]In his lengthy judgment, the President noted, as I must, the differences in legal effect between a care order and a supervision order pursuant to their statutory definition in CA 1989. 33.— Effect of care order.(a) have parental responsibility for the child; and (i) a parent, guardian or special guardian of the child; or (ii) a person who by virtue of section 4A has parental responsibility for the child, may meet his parental responsibility for the child. (4) The authority may not exercise the power in subsection (3)(b) unless they are satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare. 35.— Supervision orders. (a) to advise, assist and befriend the supervised child;(b) to take such steps as are reasonably necessary to give effect to the order; and (i) the order is not wholly complied with; or (ii) the supervisor considers that the order may no longer be necessary, to consider whether or not to apply to the court for its variation or discharge.[68]The President noted, then, that a supervision order gives the local authority neither parental responsibility, nor the power to direct how those who do have parental responsibility may exercise it, save to the limited extent of the powers (in part contingent on parental consent) contained in Sch. 3 of the CA 1989.[69]The President went on to chart the evolution of the higher court jurisprudence in relation to the use of care orders to underpin the placement of children at home. ‘[23] In care proceedings, the protection of the child is the decisive factor when the court is deciding whether to make a care order or a supervision order. The court should first make a careful assessment of the likelihood of future harm to the child, and must then weigh that harm against the harm that would follow from the child being removed from his parents under a care order. A care order rather than a supervision order should be made only if the stronger order is necessary for the protection of the child (Re D (A Minor) (Care or Supervision Order) [1993] 2 FLR 423; Re S (Care or Supervision Order) [1996] 1 FLR 753; and Re B (Care Order or Supervision Order) [1996] 2 FLR 693).’[71]The President went on to note the real change to the landscape occasioned by the line of cases beginning with Baker J’s judgment in Re DE (Child under Care[158]There is an increased/significant regional variation in the number of children returning home under a full care order, which is of very real concern. There is as yet a lack of clarity as to why, in some areas, this practice is so common and elsewhere so rare. There is a risk that the making of a care order at home provides false assurances to partner agencies because the local authority is neither involved in, nor has a thorough oversight of, the child’s day-to-day care.[159]The making of a care order should not be used as a vehicle to achieve the provision of support and services after the conclusion of proceedings. Unless a final care order is necessary for the protection of the child, an alternative means/route should be made available to provide this support and these services without the need to make a care order. This will include clarity as to the legal status of the child following the proceedings, in terms of whether they will be the subject of a child protection plan, or treated as a child in need, with accompanying reviews and services. […][160]The making instead of a supervision order to support reunification of the family may be appropriate. However, there are many concerning issues regarding their use. They have the highest (20%) risk of breakdown and return to court for further care proceedings within five years and there are widespread professional concerns that supervision orders “lack teeth” as well as significant regional variation in their use and variability in the provision of support services.[161]A final care order should also not be used as a method prematurely to end proceedings within 26 weeks artificially to alleviate concerns that the children will be at continuing risk of harm. Any such order should only be made where the local authority can demonstrate that the assessment of any carer of a looked after child meets the criteria of the Care Planning Placement and Care Reviews (Wales) Regulations 2015 or the Care Planning, Placement and Case Review (England) Regulations 2010. This provides that any such placement has to be approved by a senior nominated officer, and can only be approved if, in all the circumstances, and taking into account the services to be provided by the responsible authority, the placement will safeguard and promote the child’s welfare and meet their needs.[162]The making of a final care order must be a necessary and proportionate interference in the life of the family. A care order has a very intrusive effect of state intervention, with ongoing mandatory statutory interference not only in the lives of the parents, but in the life of the child, who will have the status in law as a looked-after child and all that goes with this. It can only be justified if it is necessary and proportionate to the risk of harm to the child. Where such an order is made there will be a real prospect of further litigation in the future, because the responsible local authority should regularly review whether the care of the child is such that the order is no longer necessary, and if so an application to discharge the order should be made. In an appropriate case, consideration should be given to the making of a supervision order.’ ‘34. The making of a care order on the basis of a plan for the child to remain in the care of her parents/carers is a different matter. There should be exceptional reasons for a court to make a care order on the basis of such a plan.[35]If the making of a care order is intended to be used [as] a vehicle for the provision of support and services, that is wrong. A means/route should be devised to provide these necessary support and services without the need to make a care order. Consideration should be given to the making of a supervision order, which may be an appropriate order to support the reunification of the family.[36]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. Any placement with parents under an interim or final order should be evidenced to comply with the statutory regulations for placement at home.

The children’s guardian

[37]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. A care order represents a serious intervention by the state in the life of the child and in the lives of the parents in terms of their respective ECHR, article 8 rights. This can only be justified if it is necessary and proportionate to the risks of harm of the child.’ ‘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.’ ‘[65] The present situation, in which the law is applied in a markedly different manner in two halves of England and Wales, cannot continue. There needs to be a common approach throughout England and throughout Wales. What that common approach should be has been determined through consultation and discussion by the multidisciplinary membership of the PLWG. The recommendations at paras 158–162, and the Best Practice Guidance at paras 34–37, of the PLWG March 2021 report, and Appendix C of the April 2023 report on supervision orders, which have already had extra-curial endorsement, I now formally endorse in a judgment of this court. They must be applied in all cases. The approach taken by the PLWG is no more than the logical development of the earlier case-law, once account is taken of the need for proportionality and once it is understood that, following Re DE, there are only procedural differences between the power of removal where there is a care order or where there is none. As Hale J/LJ made plain, it has never been the case that a care order should be used as a means to ensure that a local authority meets the duties that it has with respect to children in need in its area, nor should it be used to influence the deployment of resources. [66] The PLWG recommendations and guidance can be reduced to the following short points:(a) a care order should not be used solely as a vehicle to achieve the provision of support and services after the conclusion of proceedings;(b) 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;(c) unless, in an exceptional case, a care order is necessary for the protection of the child, some other means of providing support and services must be used;(d) where a child is to be placed at home, the making of a supervision order to support reunification may be proportionate;(e) where a supervision order is being considered, the best practice guidance in the PLWG April 2023 report must be applied. In particular the court should require the local authority to have a Supervision Support Plan in place. [67] The impact of the requirement for a 26-week timetable and adherence to the PLO mean that the decision as to what final order to make may occur at a comparatively early stage where a child has been removed from home, but a rehabilitation plan is being implemented. In such cases, there may be grounds for extending the 26-week deadline to some extent, but where, as in the present case, the children are settled at home and what is taking place is the reinforcement and further development of protective measures over an extended period, the court should make a final order rather than contemplating extending the proceedings over an extended or indeterminate period.’[42]I went on, in my judgment in Re P & Q (No. 3), to consider whether the President’s judgment in Re JW (with which Macur and Coulson LJJ agreed) had the effect of creating a separate test of ‘exceptionality’ which must be satisfied before a Care Order can be made in circumstances in which a child is placed at home with one or both parents. I concluded that it did not and that the use of words such as ‘in an exceptional case’ or ‘when there are exceptional reasons for doing so’ were descriptive, at most predictive, but not to be taken as defining some manner of condition precedent to the making of such an order.[43]My conclusion was as follows:
‘[86] At the risk of circularity, I take it from the above that (a) a care order will be justified, and (b) the case will thus be ‘exceptional’ (properly so defined), if the Judge reaches the conclusion that it is necessary and proportionate for the protection of the child, bearing in mind the different legal consequences which flow from the two different orders, for there to be a care order, notwithstanding the child’s placement at home.’
[44]It is notable that the judgment in Re JW focussed on the powers given to a local authority under a Care Order, principally the power to remove a child from the placement with his or her parent/s, and the check on that power created by the series of cases of which Re DE (Child under Care[45]In fact, the two Part IV CA 1989 orders are very different from each other in effect in ways going far beyond the fact that one gives an applicant local authority parental responsibility (and the effective ability to exercise this to the exclusion of the parents – s.33 CA 1989) whereas the other does not. A Care Order, in particular, has a series of other and far-reaching effects. To name but two such effects,(a) the duty in relation to parental contact contained in s.34 CA 1989 is triggered, and(b) the child becomes (although living with parents) a ‘looked after child’ (s.22 CA 1989), with the corollary series of duties created by that regime (including but not limited to statutory reviews and social worker visits, and various other duties contained in Schedule 2 to the CA 1989). A Supervision Order, on the other hand, creates simply a duty to advise, assist and befriend the supervised child, ‘to take such steps as are reasonably necessary to give effect to the order’, and to consider whether to apply to vary or to discharge if the order is either not being complied with or is no longer necessary. Separately, a child who is the subject of a Supervision Order may well be a ‘child in need’ within the meaning of s.17 CA 1989, a status which imposes various duties on a local authority, albeit of a very much less onerous and specific nature than those which are owed to a ‘looked after child’.[46]At first blush, it seems slightly strange that, where Parliament has created two very distinct legal regimes, with marked differences between the two in relation to the allocation of parental powers and the creation of far-reaching State duties, the choice between them, if a child is to live at home, must be dictated by an assessment simply of the child’s need for protection. However, that is the current state of the law which I must apply. In particular, I note for current purposes the adoption by the Court of Appeal of the principle (as summarised by the President):
‘unless, in an exceptional case, a care order is necessary for the protection of the child, some other means of providing support and services must be used.’
The Law – Contact with Non-Resident Parent[47]It is agreed between the parties, it follows from a series of careful assessments, and it will soon have this court’s imprimatur, that R and S are to live permanently with F. They are to have regular supervised contact with M, hopefully of high quality. That they cannot live with M and that contact must remain supervised for the foreseeable future are conclusions which flow from the findings I have made in relation to her responsibility for the poisoning of S.[48]In determining the appropriate level of contact (if, and to the extent that this falls to me), I will apply ss.1(1) and 1(3) CA 1989, taking the children’s welfare as my paramount consideration and determining this with reference to the non-exhaustive list of factors in the so-called welfare checklist. I will retain at the forefront of my mind the children’s and M’s Article 8 EHCR rights to respect for their private and family lives and that these should not be the subject of state interference save to the degree that this is necessary and proportionate. Discussion – type of order[49]Mr Garner is right, in my view, to point out that the only risk in this case which could justify state intervention in the family’s life is that which flows from my findings in relation to M having been responsible for the poisoning of S. He is also right to reason that that risk is neutralized in effect by the agreed measures of protection represented by the children living with F, not M, and by all of M’s contact with them being supervised. It is important to note that, on the one hand, in the event of breach of either or both of these conditions, the LA can act in an immediately protective way whether there is a Care Order or a Supervision Order and, on the other, absent immediate and pressing danger, it cannot lawfully remove the children even if it shares parental responsibility via a Care Order.[50]While a meaningful recognition has been slow coming, the evidence, it seems to me, points to F understanding and accepting the level of risk posed by M. Even if it will take longer for that comprehension to become fully and genuinely internalized, F certainly understands that knowingly to breach the core measures of protection is likely to lead to or at least to risk removal from him of his children. Thus, there are solid grounds to allow the conclusion that it is unlikely that F will expose the children to this risk of harm or, to put it another way, to expose himself to the risk of losing the care of his children.[51]It flows from this assessment of risk, coupled with the fact that, as a matter of law, the LA cannot, even with a Care Order, exercise its parental responsibility to remove the children save in a situation of emergency risk, that it cannot be said that a Care Order is necessary in order to protect the children from significant harm nor that making such an order would be proportionate to the risk against which the order is designed to protect the children.[52]I agree with the LA and the CG that there are a number of advantages which would flow for this family as being corollary to a Care Order, if made. Principally, it would be significantly to the family’s advantage for the LA to assume the responsibility for sourcing and funding the supervision of contact.[53]It is unfortunate that the LA takes the view that with a Supervision Order it would not provide the resource of supervision of maternal contact for the children. I note, however, that it will provide the other necessary resources, in particular it will assess family members and it will review the children’s situation and needs.[54]In those circumstances, it seems to me that it would be wrong to make a Care Order simply in order to ensure the provision of services which might not otherwise be available. This is especially so when the person who would be most affected by the intrusive nature of Care Orders actively and vocally objects.[55]Other factors are said by various of the parties to militate towards the making of Care rather than Supervision Orders, such as the protective barrier this would give to F from pressure which might be brought to bear on him, or the attractiveness of contact arrangements not having to be defined via private law orders with, it is said, a necessarily constraining effect on flexibility. These are both validly identified as corollary advantages of a Care Order over a Supervision Order. However, once one strips away the notions first that the children’s protection requires the sharing of parental responsibility and second that a Care Order can legitimately be made in order to ensure the provision of certain services, these other reasons are exposed as being of a makeweight rather than a substantive character.[56]In the ultimate analysis, there are various advantages in this case to Care Orders being made instead of Supervision Orders. However, the more robust order cannot be justified, in my view, with reference to a need founded in protection from significant harm. Moreover, chief among the benefits of a Care Order is the guaranteed provision to this family of various local authority services. That being my assessment, and bound as I am by higher court authority, in particular in the light of F’s objection, it is not properly open to me to make Care Orders.[57]Accordingly, I will make Supervision Orders in relation to the children, which orders will last for 12 months, subject only to an application to extend or to revoke.[58]As to the non-provision by the LA of supervision of maternal contact, whether this is a reasonable conclusion for the LA to reach, and whether it is lawful (in the administrative law sense) to apply a blanket policy in matters such as this, is not for me to say. What I can say is this: the LA considers that both the case itself and the risk to the children warrant the making of a Care Order; it happens that I do not agree. Further, the LA takes the view that, other things being equal, the supervision of contact from its own resources is in the children’s (and the family’s) best interests. If a Supervision Order is made, the LA has a duty to advise, assist and befriend; it also has duties flowing from these children almost certainly remaining ‘child[ren] in need’. The LA is of course aware that the Courts are required to take the view ordained by the President of the Family Division and the Court of Appeal, that it is wrong to consider that Supervision Orders ‘lack teeth’ and that, conversely, ‘supervision orders should be made to work, where that is the proportionate form of order to make’. In light of all of that, I hope that the LA will reconsider, or at least will give active and family-specific thought to the possibility of providing the resource of contact supervision to the family for an extended period. Discussion – contact with

The mother

[59]The children have seen their mother regularly and frequently since their removal from their parents’ care nearly two years ago. They are used to seeing her, they enjoy seeing her and, I have no doubt, they benefit from her demonstrable love for and tenderness towards them.[60]However, by this judgment, and contended for (or not opposed) by all of the parties, I am putting into place a state of affairs whereby the children will live solely with their father for the foreseeable future. This is a huge change for them. It is also a huge change for F, who must adjust to his role and the shape of his family life being vastly different to what he expected before these proceedings began.[61]It seems to me that a line must be found between two divergent factors. On the one hand, it is clearly necessary to reduce the frequency of contact to ensure that the children’s lives are not disrupted by it and so that they can come to understand, based on their ongoing experience, that they do not and will not live with their mother. While the children’s welfare necessarily predominates, I note that their primary carer – their father – needs both stability and significant, high-quality family time without excessive intrusion, and that it is in the children’s interests that this is so. On the other hand, the children need their relationship with their mother to continue to endure. They need to know her, in a meaningful sense, to understand that she loves them and to experience that love.[62]Doing the best I can, it seems to me that fortnightly contact, even though the frequency was arrived at by an almost accidental process, will best serve the children’s interests in this case. If at the weekend or during a school holiday, this should be for a minimum of three hours, the parties being at liberty to agree to a longer duration if they choose, perhaps to take account of a particular event or activity; if during term-time after school, the duration should be such as to ensure that the children’s routine is not unduly disrupted. It seems to me that contact of this order of magnitude will allow the children’s mother to remain a very important person in their perception and existence, while the frequency of their seeing her will not intrude unduly on their lives in their sole home with their sole primary carer.[63]Certainly, contact must be supervised. I agree with the LA (with whom F and the CG also agree) that supervision must currently be professionally administered. However, subject to LA assessment and F’s agreement, there is no reason why, at some point in the future, responsibility for providing such supervision could not fall instead to those family members able to accept, or at least in a meaningful way to understand the basis for, the assessment of the risk which M poses.[64]I also agree that contact need not be confined to some manner of contact centre, but can take place in the community, activity-based as is thought appropriate.[65]I will leave it to Counsel to try to agree the detail of the final order, which must allow scope both for flexibility and for progression in relation to the source of the supervision of contact. Conclusion[66]It has taken a great deal of time to bring this difficult case to a conclusion.[67]I do so by making Supervision Orders in relation to the children, and by providing that they see their mother on an ongoing basis every fortnight, supervised.[68]I am grateful to Counsel, their instructing solicitors and the social work professionals for their high-quality work in this case. And I wish the family well for the future.

order

the LA seeks the underpinning of the placement by a Care Order rather than a Supervision Order; contact with M: in relation to ongoing contact between the children and M, on the basis that there is a Care Order, and during its currency, the LA confirms that it will provide the supervision of this contact from its own resources; the LA initially proposed that this take place monthly, during a weekend, for a five-hour session, but when, very shortly before this hearing, it became apparent that it would struggle to provide weekend contact supervision, the LA changed its plan to propose fortnightly sessions, for two and a half hours after school; type of order: M supports the LA’s contention that there should be a Care Order; contact with M: she asks the court to favour weekly contact and to encourage the LA to vary its care plan accordingly; type of order:F opposes the LA’s assertion that there should be a Care Order, contending instead for a Supervision Order; contact with M: he accepts the LA’s proposals in relation to the frequency and duration of contact between the children and M, giving his assurance that he will continue to accept the LA’s considered view in this regard; type of order: the CG agrees with the LA in relation to the need for a Care Order; contact with M: the CG agrees with the LA’s proposals for contact. The parties’ arguments: Care Order or Supervision Order The local authority Order: Injunction under Human Rights Act 1998) [2015] 1 FLR 1001. While building on previous authority, that case crystalized the rule that, save in a true emergency, a local authority considering removal from parents of a child placed in their care pursuant to a care order must give prior notice in order to allow the matter to come back to court, whether on an application to discharge the care order or for a freestanding injunction under HRA 1998. The advent of this procedural safeguard and the good practice guidance (which received the subsequent imprimatur of Sir James Munby PFD) had the effect of the practical removal in large part of the import of one of the differences between placement with parents under a care as opposed to a supervision order, i.e., in both cases, absent emergency circumstances, a return to court would be likely as a prelude to the removal of the subject child from the parents with whom it is placed. ‘(i) making a care order with a subject child placed at home in the care of their parent(s) is plainly permissible within the statutory scheme and express provision is made for such circumstances in CA 1989, s 22C and in the placement regulations; (ii) the early post-CA 1989 authorities established that a care plan for placement at home was an appropriate outcome where the facts justified it, without the need for exceptional circumstances; (iii) the analysis of Hale J/LJ in Oxfordshire and in Re O laid particular weight upon the need for the authority to have power to remove the child instantly if circumstances required it, or to plan for the child to be placed outside the family; (iv) since Oxfordshire and Re O, the High Court decision in Re DE, containing guidance endorsed by the President, has been widely accepted so that, in all but a true emergency, the local authority power to remove a child from their home under a care order should not be exercised without giving parents an opportunity to bring the issue before a court; (v) the difference concerning removal of a child from home either under a care order or where there is no care order is now largely procedural. In all but the most urgent cases, the decision on removal will ultimately be taken within the umbrella of court proceedings, rather than administratively within a local authority; (vi) sharing of parental responsibility by the local authority with parents is an important element, but, as Hale J/LJ stressed, the fact that considerable help and advice may be needed over a prolonged period is not a reason, in itself, for making a care order; (vii) it is wrong to make a care order in order to impose duties on a local authority or use it to encourage them to perform the duties that they have to a child in need; (viii) the protection of the child is the decisive factor, but proportionality is key when making the choice between a care and supervision order for a child who is placed at home; (ix) supervision orders should be made to work, where that is the proportionate form of order to make.’ ‘Care order with child at home Order: Injunction under Human Rights Act 1998) [2018] 1 FLR 1001 is an example. However, the judgment did not consider in any real depth the differences between the two types of Part IV order other than the distinctions between the coercive and directive powers granted (or not granted) by each.