Criteria under the Children Act 1989
Care and supervision orders are granted by the court to safeguard the welfare of a child. They are usually made on the application of a local authority. When proceedings of this type are instigated, the child automatically becomes a party and is represented by a Children’s Guardian appointed by the Children and Family Court Advisory and Support Services (Cafcass). The Guardian will appoint a solicitor to act for the child.
Under s 31(2) of the Children Act 1989 (CA 1989), a court may only issue a care or supervision order if it is satisfied that:
- the child concerned is suffering or is likely to suffer significant harm; and
- that the harm, or likelihood of harm, is attributable to the care given to the child, or likely to be given to them if the order were not made, not being what it would be reasonable to expect a parent to give to them; or the child’s being beyond parental control.
An application for a care or supervision order may be made on its own or alongside any other family proceedings. The courts cannot issue an order in respect of a child who has reached the age of 17, or 16 if the child is married.
When a court is considering making one of these orders it must regard:
- the wishes and feelings of the child (considered in light of their age and understanding);
- their physical, emotional and/or educational needs;
- the likely effect on them of any change in their circumstances;
- their age, sex, background and any characteristics of them, which the court considers relevant;
- any harm which they have suffered or is at risk of suffering;
- how capable each of their parents or any other relevant person is of meeting their needs;
- the range of powers available to the court under CA 1989 in the proceedings in question.
Harm, according to CA 1989, harm means the ‘ill-treatment or the impairment of health or development’. Significant is not defined in the Act, but in practice is given its ordinary meaning (ie, important, considerable). ‘Development’ means physical, intellectual, emotional, social or behavioural development; ‘health’ means physical or mental health; and ‘ill-treatment’ includes sexual abuse and forms of ill-treatment which are not physical. Under the Adoption and Children Act 2002, the definition of harm also includes ‘impairment suffered by hearing or seeing the ill-treatment of another’.
Likely to suffer
‘Likely to suffer’ is used in the sense of a real possibility – a real, substantial risk that the child will suffer significant harm, having regard to the nature and gravity of the featured harm in the particular case in question. If a court is basing the likelihood of harm on past events over which there are disputed facts, it must first make a finding of fact before treating the past event as a grounding of future risk (Re S-B (2009)).
The effects of a care or supervision order
Although the two orders have the same threshold criteria, the two orders are different.
When a care order is made the local authority assumes parental responsibility for the child and has the power to decide to what extent the child’s parent/guardian can meet their parental responsibility for the child.
The local authority decides where the child lives and with whom, and what contact the child will have with specified people. Reasonable contact between a child in care and their parents must be allowed – the court will decide what is reasonable if required and can make an order allowing the refusal of all contact if necessary. A court order will be needed if the local authority wants to stop contact for more than seven days.
Everyone with parental responsibility must agree to the child:
- being adopted;
- being brought up in any religious persuasion other than that which they would have been brought up in if the care order had not been made;
- living outside the UK for more than 28 days.
If agreement cannot be reached, the court can make an order.
When made subject to a care order, a child will have an individual care plan that sets out how their needs will be met. The child will be subject to regular reviews which will consider things like arrangements for contact, plus the child’s health and educational needs.
A care order lasts until a child is 18, unless it is brought to an end earlier. A care order can be discharged on application by any person with parental responsibility, the child themselves, or the local authority.
A supervision order is designed to allow the local authority to keep a reasonable amount of control over the child where there is a risk of harm but not enough harm to constitute a care order.
When a supervision order is made, the local authority does not gain parental responsibility and but the supervisor has a duty to:
- advise, assist and befriend the supervised child;
- take reasonable steps to give effect to the order;
- where the order is not wholly complied with, or the supervisor feels the order is no longer needed, to decide whether to apply to the court to vary or discharge the order.
The order may require the supervised child to abide by directions given by the supervisor. This might include:
- living at a specified location;
- attending meetings social workers;
- taking part in activities on specified days;
- submitting to medical or psychiatric examinations.
A supervision order can be made in the first instance for up to one year only, but the supervisor can have the order extended for up to three years.
Any person with parental responsibility for the child, the child themselves or the supervisor can apply to have a supervision order varied or discharged.
Interim care and supervision orders
The first interim order can last up to eight weeks, following orders up to four weeks. There is no limit on the number of interim care orders that can be made.