PR24C50202 - [2025] EWHC 1977 (Fam)

“33 Effect of care order.

Where a care order is made with respect to a child it shall be the duty of the local authority designated by the order to receive the child into their care and to keep him in their care while the order remains in force.

Where—

a care order has been made with respect to a child on the application of an authorised person; but

the local authority designated by the order was not informed that that person proposed to make the application,

the child may be kept in the care of that person until received into the care of the authority.

While a care order is in force with respect to a child, the local authority designated by the order shall—

have parental responsibility for the child; and

have the power (subject to the following provisions of this section) to determine the extent to which

a parent, guardian or special guardian of the child; or

a person who by virtue of section 4A has parental responsibility for the child,

may meet his parental responsibility for him.

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.”

A child placed in the care of a Local Authority under CA 1989, s.31(1) is ‘looked after’ by the authority for the duration of the Care Order [CA 1989, s.22(1)]. Part 3 of the CA 1989, in England, and the Social Services and Well-being (Wales) Act 2014 [SSWB(W)A 2014], in Wales, make extensive provision in respect of the duties placed upon Local Authorities with respect to ‘looked after’ children.

In England, CA 1989, s.22C establishes a default requirement for a looked after child to live with a parent or similar parental figure:

“22C Ways in which looked after children are to be accommodated and maintained

This section applies where a local authority are looking after a child (“C”).

The local authority must make arrangements for C to live with a person who falls within subsection (3) (but subject to subsection (4)).

A person (“P”) falls within this subsection if—

P is a parent of C;

P is not a parent of C but has parental responsibility for C; or

in a case where C is in the care of the local authority and there was a child arrangements order in force with respect to C immediately before the care order was made, P was a person named in the child arrangements order as a person with whom C was to live.

Subsection (2) does not require the local authority to make arrangements of the kind mentioned in that subsection if doing so—

would not be consistent with C's welfare; or

would not be reasonably practicable.

If the local authority are unable to make arrangements under subsection (2), they must place C in the placement which is, in their opinion, the most appropriate placement available.”

A Local Authority, in England, may only allow a child in care to live with a parent, person with parental responsibility, or the previous holder of a ‘live with’ Child Arrangements Order (made under CA 1989, s.8), in accordance with the Care Planning, Placement and Case Review (England) Regulations 2010 [‘CPPCR(E)R 2010’].

A Local Authority which has placed a child with a parent under CPPCR(E)R 2010, Part 4 must satisfy itself that the welfare of the child continues to be appropriately provided for by his placement [CPPCR(E)R 2010, reg 35 and Sched 7]. In particular, the local authority must provide such support services to the parent as appear to them to be necessary to safeguard and promote the child’s welfare [reg 20]. In addition, by reg 28, arrangements must be made for a person authorised by the local authority to visit the child from time to time as necessary, but in any event:

within one week of the start of the placement;

at least every six weeks during the first year of the placement;

thereafter, where the placement is intended to last until the child is 18, at least every three months, and in any other case, at intervals of not more than six weeks.”

In the event that the Local Authority cannot place a child by the arrangements discussed at paragraph 45 above, there are obligations to find the most appropriate placement available and a kinship placement is to be given preference where it is assessed as meeting the child’s needs:

22C(5), CA1989:

If the local authority are unable to make arrangements under subsection (2), they must place C in the placement which is, in their opinion, the most appropriate placement available.

In subsection (5) “ placement ” means—

placement with an individual who is a relative, friend or other person connected with C and who is also a local authority foster parent;

placement with a local authority foster parent who does not fall within paragraph (a);

placement in a children's home in respect of which a person is registered under Part 2 of the Care Standards Act 2000 [F4 or Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016 (anaw 2)]; or

subject to section 22D, placement in accordance with other arrangements which comply with any regulations made for the purposes of this section.

In determining the most appropriate placement for C, the local authority must, subject to [F5 subsection (9B) and] the other provisions of this Part (in particular, to their duties under section 22)—

give preference to a placement falling within paragraph (a) of subsection (6) over placements falling within the other paragraphs of that subsection;

comply, so far as is reasonably practicable in all the circumstances of C's case, with the requirements of subsection (8); and

comply with subsection (9) unless that is not reasonably practicable.”

In Re JW (supra), Sir Andrew McFarlane (P) referred to the observations of the Public Law Working Group to the effect that there had been “an increased/significant variation in the number of children returning home under a full care order”. The President regarded that variation as being “of very real concern”. He perceived a lack of clarity as to why, in some areas, the practice is not uncommon and in others comparatively rare. There was a perceived risk that the making of Care Orders at home might provide false assurances to a Local Authority’s partner agencies because “the Local Authority is neither involved in, nor has a thorough oversight of, the child’s day-to-day care”. The President expressly endorsed the conclusion of the Public Law Working Group that:

...

a care order should not be used solely as a vehicle to achieve the provision of support and services after the conclusion of proceedings;

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;

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.”

It requires to be emphasised that the President used the phrase “rare in the extreme” when contemplating a placement at home, with parents, under a Care Order. Here, however, I am considering a kinship placement, i.e. a placement in the wider family, as I have described. Both Mr Jones and Mr Goodwin submit that the strictures of Re JW do not apply because the plan is not for a child to be placed at home under a Care Order, but with extended family members. Broadly speaking, I agree, but I do consider that, by parity of analysis, the observations of the President in Re JW have some resonance, albeit less prescriptively.

In A and Others (Care Orders at Home) [2025] EWCA Civ 901, Baker LJ took the opportunity to review the respective roles of the Court and Local Authority when making orders. He described the case law as having given the matter “anxious consideration”, 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. The case law identifies distinct and separate functions falling on each. The type of order which is to be made is, ultimately, the exclusive responsibility of the Court. In coming to that conclusion, the Court is required to consider the Local Authority’s care plan, as I have done here. That plan is prepared pursuant to s.31(3A), CA1989. No order may be made with respect to a child until the Court has considered the plan.

In a succinct submission, Mr Jones says: “This is an extremely unusual case. The facts involve a head injury, salt poisoning and a complex and harmful family environment in which the parents are effectively being exploited and manipulated by the maternal grandfather”. He points out, as I too have emphasised above, that this is intended to be a permanent placement in which reunification is not envisaged. We are not, therefore, Mr Jones argues, within the territory in which a Supervision Order might be a proportionate measure. I agree. Statutory Looked After Care (LAC) processes require the Local Authority to review R’s welfare and the scope for him to be cared for by his parents, but there is no plan for him to be moved. Mr Goodwin asked me to send a very clear message about that within this judgment. I do so.

The Guardian has carefully considered, as indeed has the Local Authority, whether a Special Guardianship Order (SGO) might be a more appropriate level of intervention. Her conclusion, which is expressed in firm terms, is that “now is not the time to make an SGO”. In particular, she considers that, in the immediate future, the placement will require to be assisted in “bedding down”, during which process “the authority” of the Local Authority will be necessary to send and reinforce the message that “interference by the maternal family” is unacceptable and will not be tolerated. She considers that there is limited prospect of any application to discharge the Care Order at any point soon. Mr Goodwin invites me to emphasise this too. I accept the point and endorse it.

Accordingly, what is planned for R is a permanent placement within the extended family in which there will be face-to-face contact six times a year with his mother and father. He will know them as his parents, living in his community, but they will not be undertaking the parenting role. The circumstances of his removal into care will be unfolded for him, incrementally and in changing language as he grows older. It will not be easy for him to understand, indeed a mother who poisons her baby with salt is not behaviour that many people can readily understand. It will be challenging for him and his carers. Added to all this, is an injury to the brain which may yet have consequences in the future, though as I have said, there is room for cautious optimism. Further, M’s volatile behaviour will probably recur at times of stress. In the background is the presence of the maternal grandfather, whose influence and control is malign and insidious.

I do not think that this placement should be categorised as “high risk”, largely because of the obvious empathy and skills of K and T, and the instinctive way in which they have claimed this child. They also have a familial impulse to protect him. That said, it would be facile to pretend that this is anything other than a placement which is going to require ongoing input and support from the Local Authority into the foreseeable future, and, perhaps at times, at an intense level. The level of risk generated by contact and by the maternal family generally, may cause peaks of increased risk as well as troughs of calm. This requires vigilance. I have wondered, on a number of occasions, whether a plan of this nature, against this factual backdrop and matrix of risk, would have been advanced even a decade ago.

As I have indicated already, I have no doubt that, with the support contemplated by this carefully thought through and progressive care plan, this is entirely the right placement for R. There could be no better. It balances all those features of risk which I have concentrated on above with the immeasurable advantage to R of remaining with his family, his culture, his traditions, all of which will reinforce his identity and hopefully, self-confidence. It also retains his father in his life, and, as previously noted, both F and R each take delight in the company of the other. There remains, however, much work still to do. The phrase “bedding in”, used by the Guardian, probably rather understates the challenge of the task ahead.

In my judgement, nothing less than a Care Order is required in this case. It is entirely integral to the effective operation of the care plan; it might even be argued that the plan would not be viable without it. It may be that the Local Authority might have to act swiftly to protect R and, in such circumstances, that will be made immeasurably more effective by the fact that they continue to share parental responsibility. As it happens, therefore, even if I were required to apply the full force of the strictures in Re JW to my analysis of the appropriate order in this extended family placement, I would have little difficulty in concluding that this was “an exceptional case”, requiring the full rigour of a Care Order.