FAMILY LAW 2024-25

SUPERVISION NINE: CHILD CARE AND PROTECTION

I. TOPICS DISCUSSED IN THIS SUPERVISION:

 Local authority support for children in need and voluntary accommodation of children
 Orders under Part V, Children Act: Child Assessment Order, Emergency Protection Order,
Police Protection Order
 The threshold test for taking a child into local authority care under s31(2)
 Uncertain perpetrators and assessing future harm
 The effects of care and supervision orders, and how to determine which order is best for a child
 The impact of the ECHR on child protection decision-making

II. READING

Legislation:
 Children Act 1989:
o Part III: ss 17, 20.
o Part IV: ss 31-39
o Part V: ss 43-47
Adoption and Children Act 2002:
Ss 21, 22, 42, 47, 52.

Textbook:
George, Thompson and Miles: Ch 12.

Cases:
 Re J [2013] UKSC 9
 Re H-W (Care Proceedings) [2022] UKSC 17.

Literature:
 S Gilmore, “Re J: Bulwarks and logic – the blood which runs through the veins of law – but
how much will be spilled in future?” [2013] 25(2) CFLQ 215 (concentrate on the commentary
from page 228 onwards).
 A. Bainham, ‘Suspicious minds: protecting children in the face of uncertainty’ [2013]
Cambridge Law Journal 266.

III. QUESTIONS ON THE READING

1. Is there ever a need for a care order in a case where a parent agrees to voluntary accommodation?

2. Does the lack of a notice requirement for parents wishing to remove the child from voluntary
accommodation put too much emphasis on parents’/family autonomy to the detriment of the child’s
welfare?

3. Can parents’ rights under the ECHR be reconciled with children’s rights in the child protection
context? Is the operation of the welfare principle in these cases, in conjunction with the threshold
criteria (see below) compatible with the ECHR?

4. Does Re M make the threshold test too easy to satisfy? Does Re H and R make it too hard? What
about Lancs?
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SUPERVISION NINE: CHILD CARE AND PROTECTION

5. Might the provision allowing to protect children from “future harm” encourage local authorities to
act too precipitately, e.g. removing a newborn child on the basis of treatment of older siblings?

6. Are supervision orders misconceived? Do they confer inadequate powers on local authorities?
Should the threshold test for supervision orders be as high as that for care orders?

IV. SAMPLE ESSAY QUESTIONS

1. "The integrity and independence of the family is the basic building block of a free and democratic
society and the need to defend it should be clearly perceivable in law. Accordingly, unless there is
evidence that a child is being or is likely to be positively harmed because of a failure in the family,
the state, whether in the guise of the local authority or a court, should not interfere". Lord Mackay,
(1989)

To what extent does the Children Act 1989 reflect this attitude? To what extent should it do so?

2. ‘Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the
barely adequate and the inconsistent. ... These are consequences of our fallible humanity and it is not
the provenance of the state to spare children all the consequences of defective parenting.’ (HEDLEY
J, Re L (Care Threshold Criteria))

To what extent does English law strike an appropriate balance between the protection of children
and the autonomy of the family?

3. ‘The Children Act 1989 allows the state to separate children from their families too easily.’
Discuss.

4. The Supreme Court’s ruling on the single issue in Re J is a worrying one which...may leave local
authorities unable to intervene where there is a real possibility, a possibility that cannot sensibly be
ignored, that a child is at risk of significant harm.’ (GILMORE) (2013)

Discuss.

V. QUESTIONS FOR DISCUSSION IN SUPERVISION

Discussion question
1. Does English law strike the right balance between protecting families from state intervention in
family life and protection of a child? (Consider the Re J decision on possible perpetrators and
criticisms thereof, as well as Re H-W and the courts’ approach to proportionality of intervention).

Problems
2. Hector, a social worker, has been asked to visit the 19-year-old mother of a two-month-old baby,
following referral by a GP who is concerned about the baby’s mother’s ability to care for her. The
GP is concerned because the mother may be suffering post-natal depression and has said that at
times she thinks about injuring herself or the baby. Hector calls at the house several times; on each
occasion, either there is no answer, or the mother answers the door but will not let him in, saying
that the baby is asleep and that she is about to take a nap herself.

Ill treatment is an absolute – no child should be physically ill treated

Rule – at harm , duty to inesigate

Impairment of health – development – can. Be cause of some condition outside parent control – compare to
similar child – if 6 yr old, compare w another 6 y/o

Child assessment order

Re I – long term, cumulative, whilst EPO for sudden things

44 1 (b)

EPO – then apply ICO before expiry – at end of 15 days has to hand back
 Imprsional offence on breach 44(A)(5)

Advise Hector with regard to his powers and duties in this situation.

How, if at all, might your answer differ if Hector was concerned about the presence in the
home of the mother’s boyfriend, Jonah, who has convictions for causing physical injuries to
one of his own children?

3. Mr and Mrs Old were married in 2008. During the marriage Mrs Old gave birth to two daughters,
Yootha and Zia, who are now respectively 15 and 13 years old. Shortly after Yootha’s birth, Mr Old
became aware that Yootha had been conceived following his wife’s affair with another man, and
that he was not her father, but rather her step-father. However, Mr and Mrs Old remained together,
bringing up both children. Six months ago, Yootha disclosed to a teacher that Mr Old had been
sexually abusing her since she was 12 years old, and that Mrs Old had been aware of this, but had
failed to protect her. While Mr and Mrs Old strenuously denied the allegations and objected to the
children’s removal, the Local Authority social worker insisted that Yootha and Zia be
accommodated by the Local Authority, and they were placed with Mrs Young, a local authority
foster parent. Mr and Mrs Old went along with the local authority’s plans because they did not then
understand (and were not told) the voluntary nature of accommodation. Mr Old subsequently wrote
to the local authority demanding the return of the children to the family home. The local authority
refused, however, stating that they believed him to be a risk to the children, and the children have
remained accommodated. While the children remained accommodated, Mr and Mrs Old were
murdered by Yootha’s father who had found out about the allegations of abuse.

It later transpired that Yootha was pregnant and eight weeks ago she gave birth to twin boys,
William and Xavier. The twins were looked after by Mrs Young during the day while Yootha
attended school and by Yootha when she returned home. Yesterday, Yootha telephoned for an
ambulance when she noticed that William was very unwell. Doctors subsequently diagnosed that
William had been shaken very roughly causing serious injury, although it is unclear whether he
sustained the injury whilst in the care of Yootha or of Mrs Young.

(a) Advise the local authority as to the lawfulness of the accommodation of Yootha and Zia,
and whether the local authority could obtain care orders in respect of Yootha and Zia.
S(20)

Re s-b hale – harm that would not have happened if looked after properly

After threshold, don’t miss out welfare stage – don’t actually apply 1(3) – only
proportionate order – care order
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EPO – must remain (in hospital) – other child remove

Interim care – low threshold

(b) Advise the local authority as to the measures available to protect Xavier and William both
in the short-term and longer-term.

Re h if hurt him once, can hurt again