Placement at home under a care order

Background

The Court of Appeal in Re A (Care Orders at Home) [2025] EWCA Civ 901 overturned care orders made for placement of five children at home. The care plan changed during the final hearing (at a part heard stage) for one of removal, supported by the Guardian only in respect of three of the five children. The Judge decided that removal would be disproportionate but also that, exceptionally, the children should be made subject to care orders for placement with the mother at home. There were significant issues of parental co-operation, which had contributed to the change in care plan, and the Judge appears to have thought that shared parental responsibility was a way of addressing this.

Both the mother and the LA appealed (for different reasons). Eventually, all parties and the Court agreed that the care order could not stand in any event.

The Court’s Decision

As Baker LJ said:

25.  The fundamental problem is this: Under s.31(3A) of the 1989 Act, "no care order may be made with respect to a child until the court has considered a section 31A plan." When the judge made final care orders in respect of all five children, she did not have before her a plan which made provision for the children to live at home. The plans filed at the start of the final hearing had been withdrawn. The local authority was now proposing the removal of the children, and therefore no plans to that effect had been formulated. Accordingly, it was not lawful for the judge to make a final care order at that stage. Given her conclusion that the children should remain at home with the mother, the right course would have been to adjourn the hearing and invite the local authority to reconsider its plans for the children in the light of her judgment. Such a course was particularly important given the sharp divergence between her conclusions and the local authority's position.

26.  It was even more important, given her proposal that the children should remain at home under care orders. In Re JW (Child at home under care order) [2023] EWCA Civ 944, at paragraph 66, Sir Andrew McFarlane P, in a judgment with which the rest of the court agreed, endorsed the conclusion of the President's Public Law Working Group that:

"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."

For that reason, any proposal that a child remain at home under a final care order requires particularly careful analysis. In the present case, the court was concerned with five children with different needs and vulnerabilities. It was also concerned with two parents who had resolutely refused to co-operate with the local authority. In those circumstances, it was plainly wrong for a final care order to be made, vesting the local authority with the overriding parental responsibility that comes with such orders under s.33(3) of the Children Act 1989 , without allowing the local authority the opportunity to give careful consideration to the judge's evaluation of the children's welfare and, if it considered it possible, to devise plans that enabled her conclusion to be put into effect. It was also essential for the children's guardian to have the opportunity to respond to the local authority's plans.

The judgment makes clear that the LA should have been given the opportunity to reconsider its position. The Court of Appeal also reminded of the difficulties that would arise if the LA, having been sent away to consider an alternative care plan, dug in its heels and continued to assert that it was simply not workable.

The judgment continues:

27.  It is of course possible that, having had that opportunity, the local authority would have concluded that the judge's proposed outcome was not one which could be put into effect. The question of what would happen next involves consideration of the respective roles of the court and local authority, a matter which has been the subject of anxious consideration in a number of cases, 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. In the last-named case, Sir Andrew McFarlane P said (at paragraphs 35-6):

"35.  A cardinal principle embedded into the structure of the CA 1989 and the ACA 2002 is that a local authority and the Family Court have different spheres of responsibility with respect to the making of orders, on the one hand, and, on the other hand, the determination of the care plan to be followed for a child once an order has been made. The former is the exclusive responsibility of the court, whilst the latter is the exclusive responsibility of the local authority.

36.  In almost all cases there is, at least by the conclusion of the court process, unanimity of view as between the local authority and the court over the care plan that is to be followed if a particular order is made. Where, as is currently the position in the present case, the view of the court and that of the local authority diverge on a central element of the plan for the child's future welfare, previous authority holds that a process of mutual respect and reconsideration should be undertaken with the expectation that, by the end of that process, sufficient common ground may be achieved to enable the court to make an order on the basis of a care plan that accords with an accepted view of the child's welfare needs. Where, however, an impasse remains, the court may have to choose between the 'lesser of two evils' or, where the circumstances merit it, contemplate formal challenge to the local authority's decision by judicial review."

This serves as a reminder that, no matter how strong the views of the court, it cannot compel the LA to take a particular view. It may urge, pressurise or seek statements or attendances from managers, but it cannot change minds or prevent, in a worst case, a complete standoff. However, this doesn’t happen very often in practice.

It is also notable that, at one point, the father was made subject to an injunction excluding him from the area of the mother’s home which the LA had taken out under the inherent jurisdiction. The Court of Appeal clarified that, having reminded itself of CA 1989 s.100 (4)(a) and the prohibition on use of the IJ where there is a statutory option, the correct approach is:

31.  In this case, as Mr Michael Jones KC pointed out on behalf of the father (in a footnote to his skeleton argument) there is a statutory avenue for the making of an injunction pursuant to s.37(1) of the Senior Courts Act 1981 , which has effect in the Family Court by virtue of s.31E of the Matrimonial and Family Proceedings Act 1984 , as amended Schedule by 10 of the Crime and Courts Act 2013 . Accordingly, the local authority should not have been granted leave to apply for an injunction under the inherent jurisdiction, and the court should not have made an order on that basis.

Conclusion

This case is a reminder that care orders for children to remain at home should only be made in rare and exceptional circumstances, and only when supported by a lawful care plan. Robust planning and clarity of roles are essential in such proceedings.

Key takeaways

• The need for a care plan to be before the Court before the making of care orders as required by CA 1989 s 31A. If the Court proposes an alternative care plan, there needs to be the opportunity for the LA to consider it.
• The Court acknowledges (without being able to resolve) the challenges of the rare cases where there is a need for a care order but, having considered the proposed change of care plan, the LA feels unable to implement it.
• Care orders for children to live at home remain exceptional.
• Use statutory powers for injunctions wherever possible; inherent jurisdiction is only for use when no statutory route is available.

Graeme Bentley is Principal Solicitor in Invicta Law’s Child Protection team and an Accredited Member of the Law Society’s Children Panel.