West Sussex County Council v AB & Anor

CD, who is now 17 years old, has complex needs and is a most troubled young person. Over the last two years her behaviour has been so concerning that she has been detained for periods under the Mental Health Act 1983. Despite the impressive care and commitment of her mother [‘AB’], it is accepted that she is, and has been for some time, beyond parental control. Since July 2023, the local authority has had authority under a series of deprivation of liberty orders [‘DOLs orders’] to protect her and others from harm by restricting CD’s liberty. In November 2023, the local authority applied for a care order under Children Act 1989, s 31 [‘CA 1989’] and, from that time, CD was the subject of an interim care order.

An unusual feature of the case is that, despite the substantial challenges presented to those seeking to care for and support CD, and partly because no alternative placement could be found, she has been accommodated in her mother’s home for the past 11 months. AB works full time and, in any event, additional carers are required for CD. As a result care is provided in AB’s home by a rota of professional carers, with at least two carers being on duty at any one time 24 hours per day.

In June 2024, HHJ Bedford, sitting as a deputy High Court Judge, continued the DOLs order on CD and, on 7 June, following a contested hearing, he placed her in the care of the local authority under a final care order. The focus of this appeal, which is brought by the local authority and supported by AB, is upon that latter decision. The appellants assert that, in circumstances where CD’s entire care package is authorised and regulated within the DOLs order, and where the authority and other agencies have statutory duties to provide the care that CD needs, a care order was neither necessary nor proportionate. The appeal is opposed by the children’s guardian, albeit that some of the local authority’s criticisms of the judgment are accepted.

Before embarking on a more detailed description of the case, it is right to make it clear that the appeal is mounted solely on grounds of proportionality, based on the specific facts of this unusual case and the approach of the judge in his judgment. No discrete matter of law arises for determination. It is not unusual for a DOLs order to be combined with a care order, and there is no legal impediment to doing so. I would also stress that, whilst CD is accommodated at home, the circumstances of this case are separate and distinct from those that are normally encountered when a child is placed at home under a care order and which were the subject of this court’s decision in Re JW (Child at home under Care Order) [2023] EWCA Civ 944. In the Re JW cohort of cases, a child in care is placed at home often with minimal monitoring or interaction with the social services. The contrast with the present case, where at least two carers are permanently present in the family home, is stark. Nothing that is said with respect to the approach to the specific circumstances of the present case can have any direct relevance to the more ordinary ‘care order at home’ cases being considered in Re JW.

CD is an adopted child. Her birth mother is recorded as having alcohol problems and both birth parents had difficulties with their mental health. CD was adopted in 2012 (by age 5) by AB. CD was already, by then, identified as a vulnerable child. The scale of CD’s difficulties is demonstrated by the fact that she has been diagnosed as suffering from dyslexia, dyscalculia, misophonia (sound sensitivity syndrome), non-epileptic seizure, Autistic Spectrum Disorder (ASD), ADHD and complex PTSD. She also suffers from disordered eating [SB/80], Foetal Alcohol Spectrum Disorder, depression, anxiety, a moderate learning disability and developmental trauma.

The chronology of CD’s significant behavioral difficulties goes back to 2017. In March 2023 the local authority formally identified her as ‘a child in need’. For nearly a year in 2022/3 she was detained under the MHA 1983, s 3 and the first DOLs order was made following her discharge from hospital in July 2023.

When proceedings commenced, the local authority care plan was to place CD in a specialist residential placement. However, it was not possible to find a placement to meet her needs. The authority therefore commissioned carers to reside at home with the mother’s consent. This was for 24 hours and, initially, with 4:1 supervision. At a review hearing on 19 January 2024, the local authority recommended that, with AB’s agreement, the care plan should continue to be delivered at the family home.

Care proceedings were issued in November 2023. The local authority’s application was based upon the s 31 statutory threshold being satisfied on the ground that CD was ‘beyond parental control’. The threshold was accepted in full by AB on that basis. CD was assessed as having suffered significant harm because of her intrusive thoughts and the complexities of her neurodivergent thinking which made it likely that would suffer further significant harm.

Since her placement at home, CD has had a number of short further hospital admissions. Her behaviour continues to be challenging and it is clear that she is, sadly, going to require intensive support once she reaches adulthood during the coming year. The local authority is already planning to issue parallel proceedings under the Mental Capacity Act 2005 which can dovetail with the DOLs proceedings under the inherent jurisdiction which will fall away when she reaches her 18^th birthday.

AB, who, it seems to me, has acted in a wholly admirable manner towards her daughter throughout these troubling years, is fully on-board and supports the local authority’s care plan. In terms of the elements of the plan, it is accepted that nothing will change whether a care order is, or is not, made.

Before the judge, the local authority submitted that there was no need for either a care order or a supervision order. As a young person who had been detained under the MHA 1983, CD was entitled to support under s 117 of that Act. The authority’s case was that the s 117 duty, coupled with CD’s status as a child in need, would, with the mother’s continued cooperation, mean that the full care package would continue to be provided without the need for a care order. In addition, CD, having been a child in care under the existing interim care order, would qualify for Personal Adviser support under the Care Leavers Regulations 2010 once she reached the age of 17½ or 18 years. The DOLs order was a free-standing provision made under the inherent jurisdiction and was in no manner dependent upon there being a care order.

At the hearing, although AB accepted that the s 31 threshold criteria were met on the ground of being beyond parental control, she supported the local authority’s opposition to the making of a care order. The children’s guardian, who had initially recommended a 12 month supervision order, revised her position shortly before the hearing to one of inviting the court to make a full care order.

It is of note that, partly it is said because of her very adverse reaction arising from her experience as a child in care up to the age of 5 years, CD had not been informed that she was currently subject to an interim care order and, if a care order were made, it was not thought to be in her interests to tell her that that was the case.

In a conspicuously careful and thorough judgment, the judge rehearsed the background and, in particular, he stressed the following aspects of the agreed facts:

The judge was clear in setting out the reasons why he took a contrary view to that of the local authority and AB in holding that a care order was necessary. In summary those reasons were:

In relation to (i), the judge recorded that CD needed to continue to receive services from:

In regard to (ii), the need for the local authority to issue fresh care proceedings in the event of AB no longer agreeing to the care plan, the judge endorsed the guardian’s analysis [at paragraph 39]:

At paragraph 55 the judge noted that there was evidence of non-compliance by AB in the past and at paragraphs 56 to 58 he set out his analysis of point (ii) as part of his overall conclusion:

With respect to (iii), after setting out the guardian’s analysis in detail, the judge concluded at paragraph 45:

Finally, at paragraph 60, the judge refers to the fact that a deliberate decision had been taken not to inform CD that she was currently subject to an interim care order or may be subject to a final care order because of concern that this may have an adverse impact upon her. He described the potential for upset if told of the order as ‘conjecture’ and concluded:

Mr George Butler, counsel for the local authority, relied upon 5 grounds of appeal. In reality, grounds 1 to 4 were a statement, in different forms, of the local authority’s overall assertion that making a care order was disproportionate, not the least interventionist order and was not necessary in this case. The final ground was that the judge had been wrong to make a care order to ensure that the care plan was fully delivered.

More particularly, the local authority submitted that the judge’s reference to the mother’s past behaviour did not justify holding that she may act in a way to jeopardise the care plan in the future was said not to be justified. The evidence of AB’s previous non-compliance consisted of her taking objects to the hospital (a duvet and papers with staples in them), the fact that she has not always agreed with the professionals, and the fact that AB had not permitted the guardian to see CD in the week before the final hearing. Mr Butler submitted that these actions were given too much weight by the judge, when set against the clear commitment by AB to the overall package of the course of a significant period.

Further, Mr Butler submitted that it was wrong, as a matter of law, for the judge to make a care order so as to ‘oblige’ or ‘galvanise’ the local authority to deliver the care plan. He relied upon this court’s judgment in Re JW where, at paragraph 37, I said:

Mr Butler submitted that making a care order interfered with AB’s right to be responsible for the care of her child in circumstances where the local authority did not need to be in charge and where, taking a long view, AB has shown that she can be trusted.

The appeal was supported by Ms Maria Hancock on behalf of AB, who submitted that a care order was not necessary, there was no need for the local authority to share parental responsibility, AB can be trusted and a care order adds nothing to enhance AB’s commitment to the regime. Ms Hancock also drew attention to the fact that, through the DOLs process, the court would continue to be involved in monitoring the delivery of the care plan, yet this was not a factor to which the judge referred.

Ms Hancock submitted that CD’s likely reaction, were she to learn that she was the subject of a care order, was a significant factor which had been given insufficient analysis by the judge at paragraph 60.

For the children’s guardian, Mr Leo Cogin submitted that the judge had been justified in making a care order. He particularly endorsed the judge’s view as to the occasions when AB had in the past drawn back from, or failed to comply with, the care plan; this was, he submitted an important factor.

Mr Cogin did, however, accept that the judge had been in error in holding that a care order was required in order to ensure that the local authority delivered the care package in full. In making that acceptance, Mr Cogin acknowledged the statutory duties under CA 1989, Part III and this court’s restatement of the law on this point in Re JW. He also accepted that the judge failed to address the necessity for a care order in circumstances where the court was to remain involved through the reviews in relation to the DOLs order.

Prior to the commencement of the appeal hearing, I was of the view that the order of this most experienced Family judge, whose profound concern for the future well-being of a most vulnerable young person was fully justified, and should be upheld. In the event, I was persuaded that the appeal should be allowed for the following reasons.

Firstly, as is accepted by all parties to the appeal, the judge was in error as a matter of law in justifying the imposition of a care order as a means of obliging or galvanizing the local authority into delivering the agreed care plan. As paragraph 37 of Re JW repeats, it has long been held that a care order should not be used solely to encourage a local authority to do that which it is already statutorily obliged to do.

The judge was obviously justified in seeking to maximise the prospects for the multi-faceted and multi-agency care plan to be delivered in full to meet the needs of this most vulnerable young person in the coming year. But, as a matter of law, where the authority has, and accepts that it has, a statutory duty to deliver the care plan, the making of a care order does not impose any additional requirement upon it. It is a fundamental principle that, once a full care order is made, the court does not have jurisdiction to review the operation of a care plan (A v Liverpool City Council [House of Lords] [1982] AC 363) or require a local authority to adhere to key elements in any care plan (Re S and Re W (Care Order: Implementation of Care Plan) [2002] UKHL 10 – the ‘starred care plan’ case). Thus, should it wish to, a local authority may, on the day following the making of a care order, amend or fundamentally alter the care plan that has been approved by the court, subject only to the risk of an application to discharge the care order or judicial review proceedings.

Additionally, as Hale J (as she then was) held in Oxfordshire County Council v L [1998] 1 FLR 70, whilst it was open to a court to make an order other than that for which a local authority has applied, there must be ‘cogent and strong reasons’ for doing so. In the present case the reasons given for justifying the making of a care order, against the wishes of the local authority, cannot be couched in such terms.

Finally, on this point, and in contrast to most care cases, the court does have a continuing role in monitoring the delivery of the care plan for CD through the ongoing DOLs process. This was an important element in the balance to be struck on the issue of whether or not to make a care order, yet it was not referred to in the judgment.

In relation to the second area of the case identified by the judge as supporting the making of a care order, namely the potential for AB to change her position and move away from cooperating fully with the care plan, there was some evidence justifying the judge’s concern. But, as the evidence underlying the submissions made to this court on behalf of the local authority demonstrates, such falling off as there had been in the past was comparatively minor and, in any event, had to be set against the very substantial body of evidence of established and sustained support from AB over a significant period. Although there must always be a risk of AB, or any parent, withdrawing cooperation, when set against the evidence as a whole, this was not a likely outcome and not one which, on its own, justified the imposition of a care order.

The judge rightly pointed to CD’s imminent 17^th birthday, with the consequence that, if there were no continuing care order in place, no care order may thereafter be made with respect to her [CA 1989, s 31(3)]. The judge had ‘significant concern’ that the local authority would, in the event of AB withdrawing from cooperation with the care plan, look to protect CD by issuing fresh care proceedings yet be unable to do so post-17. That level of concern did not, however, justify the making of a care order in case there should be a falling away in AB’s support. Firstly, because, as I have already held, this was not a likely eventuality. Secondly, the local authority’s proposal to issue fresh care proceedings was, with respect, misplaced. It would not be necessary to apply for a fresh care order where, as here, there were ongoing High Court proceedings supporting the DOLs order. In the event of a change in AB’s support, any dispute, or variation of the care plan, could and should be dealt with within the DOLs process or any subsequent Court of Protection proceedings. Where a local authority is authorised by the High Court under a DOLs order to deliver care to a young person in a particular manner, there will be few circumstances where their position would be enhanced by any additional power that would come from having parental responsibility and the ability to control AB’s exercise of parental responsibility under a care order.

A further factor bearing on the choice between making a care order or not arises from the concern that both AB and the professionals had as to the impact on CD’s behaviour were she to discover, or be told, that she was, once again, a child in care. This was not an insignificant factor in the welfare balance, given CD’s vulnerability and the very volatile nature of her behaviour. It was, to my eyes, striking that for some 8 months during which CD had been the subject of an interim care order, the professionals and her mother had agreed that she should not be told that that was the case. It is no small thing for a 16 year old not to be told information of that nature, and the degree of professional and maternal concern about CD’s likely reaction can be gauged from their decision not to do so. Against that background, it is hard to understand the judge’s characterisation of that degree of professional concern as ‘conjecture’. This was a factor which, as Ms Hancock submitted, was of significance and to which insufficient consideration was given.

Drawing matters together, and whilst fully understanding the judge’s focus on doing all that he could to ensure the delivery of all aspects of this complex care package to support CD, I have concluded that the making of a care order was not justified. If My Lady and My Lord agree, the consequence is that the appeal must be allowed and the care order set aside.

At a stage when our draft judgments were shortly to be circulated to counsel, the court became aware for the first time of a relevant decision by Lieven J: Re JR (Deprivation of Liberty: Care Order: Principles of Care) [2024] EWHC 564 (Fam); [2024] 2 FLR 856.

In Re JR Lieven J was invited to continue a longstanding DOLs authorisation with respect to a 16 year old boy who was placed in a therapeutic placement. For the previous 3 years, JR had been accommodated by the local authority with the agreement of his adopted parents under CA 1989, s 20. The first DOLs authorisation had been made in May 2023. Whilst the local authority had issued an application for a care order under CA 1989, s 31 in October 2023, no interim care order had been made. By the time of the final hearing before Lieven J, the local authority (with the support of JR’s parents) sought leave to withdraw the care order application. Having heard full argument, Lieven J refused the application to withdraw and made a final care order on the basis that it was necessary and proportionate to do so.

Some months prior to the final hearing in Re JR, there had been a dispute between the parents and the local authority in which JR’s father sought to take him on holiday. The local authority were concerned that if they were alone, the father may not be able to control JR’s behaviour. The authority were granted a court order preventing the parents from removing JR from his accommodation.

Lieven J relied upon two central reasons in support of her decision:

It is a matter of concern that Lieven J’s decision in Re JR was, on counsels’ admission, not known about until this court recently drew it to the parties’ attention, with the result that it was not shown to HHJ Bedford at first instance or to us during the appeal hearing. Whilst the decision had not been formally reported, it will have been available on the usual online resources prior to the June 2024 hearing. By the time of the appeal hearing, the case had been formally reported in the Family Law Reports. In all cases, but particularly in a case such as this where detailed submissions of law are to be made, it is the responsibility of specialist counsel to use due diligence in their research for any relevant decisions. Courts are entitled to rely upon counsel in this regard, and it is disappointing that in the present case there seems to have been failure across the board to notice the Re JR decision.

We are grateful to counsel who have responded to our request for further submissions. Having now considered the position, my view is that the analysis that I have undertaken in this judgment remains the appropriate one on the facts of this case. I also consider that Lieven J’s analysis and decision in Re JR were justified and correct on the facts of that case. The level of parental divergence, from time to time, from the local authority’s plans in Re JR was of a wholly different order to the altogether more modest disagreement in the present case. In addition, as Lieven J’s judgment makes plain, the degree to which the local authority could be relied upon to afford priority to implementing the care plan was questionable, whereas in the present case that was not a significant issue. Re JR is an example of a case where a care order was justified alongside a DOLs authorisation, whereas, for the reasons that I have given, it was not justified in the case of CD.

I agree

I also agree