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Cite as: [2009] 3 All ER 1078, [2009] EWCA Civ 121, [2009] 2 FCR 367, [2010] PTSR 615, [2009] Fam Law 571, [2009] 2 FLR 574

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Neutral Citation Number: [2009] EWCA Civ 121
Case No: B4/2008/1870/CCFMF

His Honour Judge Ibbotson

Royal Courts of Justice
Strand. London, WC2A 2LL
4 March 2009

B e f o r e :



Re T (A Child)


Philip Booth (Instructed by Legal, Licensing and Registration, Leeds City Council) for the Appellant
Malcolm Chisholm (Instructed by CAFCASS Legal) for the Respondent

Hearing dates: 5 November 2008



Crown Copyright ©

    Sir Mark Potter P:

    Introduction and Background

  1. This is an appeal by a local authority against a care order made on 11 July 2008 by His Honour Judge Ibbotson following the final hearing of care proceedings brought by the local authority ("the Council"). The issue upon this appeal is whether, instead of the care order which he made, the judge should have made a supervision order, as advocated by all the parties before him. The case concerns a male child B born on 27 October 2006 and now aged 2. His mother and father, aged 33 and 35 respectively, were married in 1998 and remain together. B has 2 siblings, 2 older than himself, namely J, a girl who is now 16 but was 15 at the time of this appeal, and M, a boy now aged 8. Prior to January 2007, they all lived together as a family, together with B's male cousin, now aged 13, who is the son of the mother's sister, but had lived with the family since 2003 following the breakdown of his relationship with his parents.
  2. The proceedings began on 27 January 2007 when the Council sought an interim care order in respect of B and an interim supervision order in respect of the other three children following an injury sustained by B.
  3. On 20 January 2007, B had been brought to the accident and emergency department of the local hospital by his parents, having sustained a serious head injury consisting of a bi-lateral skull fracture with soft tissue swelling and a small subdural haemorrhage. Dr R, the consultant paediatrician in charge of B's care, concluded that it was a non-accidental injury and, upon that basis, interim care orders were made on 5 February 2007.
  4. On 5 July 2007, following a fact finding hearing, His Honour Judge Kamil rejected the parents' account that B's injuries had resulted from an accidental fall from a Moses basket, and found that the injuries were non-accidental in origin. In that respect he relied on the evidence of Dr R and the second opinion of Dr M. He found that the injuries were caused either by the mother or father, in whose care B was at the time of his injury and that the non-perpetrator had been guilty of failure to protect.
  5. The care proceedings in respect of B's siblings ended on 7 December 2007 when, by consent, Judge Ibbotson made no order in respect of them.
  6. On the instructions of the Council, Broomhill Family Centre, an NCH project, carried out a parenting and risk assessment in relation to the mother and father which was completed on 31 October 2007. This assessment concluded that, given B's age and vulnerability, he could not safely be rehabilitated to the parents' care. However, it opined that consideration should be given to B remaining within the extended family network in order to enable ongoing sibling contact. It recommended that, in the light of issues of domestic violence, alcohol and anger management, the only circumstances under which consideration should be given to returning B to his parents care were if (a) the father accessed appropriate services to address issues to do with alcohol (b) both parents accessed services to address anger management issues (c) the mother accessed services to address her ability to protect herself and the children from possible future domestic violence incidents and (d) both parents demonstrated an ability to continue to engage with a range of professionals to meet the children's needs.
  7. The assessment noted that, despite the parents stating that they would engage with professionals if it was deemed necessary, they did not accept that they had alcohol or anger issues which needed addressing. Since members of the extended family stated that they were not aware that the father misused alcohol historically, this had limited the ability of the extended family to offer appropriate support and protection in the past and, unless the issue of alcohol were addressed, would also limit the role of the extended family in the future.
  8. On 7 November 2007 the Council produced a care plan which sought to place B with his paternal aunt and her partner as potential long term family network carers for B, the alternative being stated to be a placement with local authority foster carers pending identification of an alternative long term placement. This apparently came as a shock to the parents who said they had been receiving favourable signals from both Broomhill and the local authority social worker and were expecting that B would be permitted to return home.
  9. B's guardian in the proceedings reported on 27 November, only 10 days before the date then set for the final hearing. The guardian stated that she was unable to support the care plan for a care order because it was in effect "inchoate", that the recommendation of no rehabilitation was "overly draconian," and she considered that on balance the risk would be managed if B were returned to his home subject to a package of support and intervention. B's rehabilitation should be under a care order, and subject to a Placement with Parents Agreement outlining stipulations on the part of the parents who were now actively enlisting the help of support agencies. The guardian invited the Council to reconsider its plan saying that, should the Council maintain its opposition to placement at home, she would recommend a supervision order with strict conditions attached to the effect that (a) the father and mother would continue to seek the assistance of support agencies with which each had recently engaged and (b) they would agree to manage their alcohol use and behaviour. At the final hearing in December, the Council amended their original care plan and accepted Broomhill's recommendation for B's permanent placement outside the family in the absence of an approved family Network Carer.
  10. However, following the evidence of, among others, the parents and those responsible for the Broomhill assessment, in the course of the evidence of the guardian the parties sought time for discussion and asked the Judge to adjourn until 7 January for further consideration and directions. Being satisfied that such delay was likely to be constructive, the Judge agreed. At a resumed hearing on 7 January 2008, and at the request of the parties, the Judge made an order (a) to allow a parenting assessment of the paternal aunt who had previously provided foster care for B and (b) for the instruction of an independent social worker, Ms JB, to carry out an assessment of the mother and father who had by then made and maintained progress in seeking support and co-operating with the social services to address the matters set out at paragraph 6 (a)-(d) above. They were actively attending agencies relating to domestic violence, but the work was still at an early stage.
  11. Progress was such that the report of Ms JB dated 11 March 2008 concluded that B could be returned to his parents' care either under a care order or a supervision order with strict conditions which rendered manageable the risk posed to B should the father, who stated that he had given up drink, begin to drink again in the future. Ms JB addressed at length the issues about alcohol misuse, domestic violence, the parents' continued claiming that the injury was accidental, the quality of care of each of their children, the potential trigger factors to violence and the parents' attendance at support groups. In her view the parents had shown commitment and motivation in addressing issues of concern. In relation to the risks to B if returned to his parents, she adopted a balance sheet approach under which she identified many positives and only one negative, namely the failure of the parents to explain the injury and accept the findings of fact. She felt confident that the parents could work with a formal agreement. Among the positives were that the father had faced his problems with alcohol, recognised that his level of alcohol consumption and his aggression were linked, had attended Leeds Alcohol and Drugs Service to demonstrate that he was no longer drinking excessively and expressed himself willing to undergo random blood tests in order to continue to prove this. He had also attended, and was continuing to attend the S.T.O.P. (Start Treating Others Positively) programme in which he was recognised to be a genuine and helpful participant. The mother had attended Leeds Womens Aid since November 2007 and had made such good progress in recognising her need and ability to protect herself and children should it prove necessary that the course leader felt she no longer needed to continue to attend. Mrs JB considered that B could "be safely reunited with his parents and that his placement with his parents can be managed with a package of support and monitoring", and stated that he could be returned home to the care of his parents under a phased rehabilitation plan.
  12. Under a further care plan filed on 16 April 2008, the Council no longer pursued its application for a care order but sought the return of T to the care of his parents under a supervision order containing safeguards, provision for a phased return home programme for B, and monitoring thereafter.
  13. On 2 May 2008 the report of the guardian supported this recommendation and in statements dated 30 April and 5 May 2008 respectively, the mother and father agreed to the Council's care plan for a supervision order.
  14. In the light of this change of stance, on 7 May 2008 at a pre-hearing review, the Judge sought further information from the Council, Ms JB and the guardian to explain why a care order was no longer thought appropriate.
  15. By an addendum report dated 23 May 2008, the guardian described the care order as "overly draconian" in the light of the significant developments and continued cooperation of the parents and recommended a supervision order combined with a written agreement between the parents and the council clearly setting out the expectations which the council had of the parents. By her addendum report of 21 May 2008, Ms JB expressed herself as follows:
  16. 2.12 "My recommendations for [B's] rehabilitation to his parents and family remain the same. It is my view that a Care Order would be too interventionist in this case. [The parents] have demonstrated a willingness and ability to work with all the professionals involved in ensuring [B's] safety. There is no reason to suppose that they will cease to do so if [B] was to be made the subject of a Supervision Order rather than a Care Order. It is my view that [the parents] should retain full parental responsibility for [B] in order to be able to make decisions about his day to day arrangements. [The parents] have demonstrated a willingness to work to the plan set out by the Local Authority, I feel that this, in conjunction with the three monthly reviews that are planned, would be enough to reduce risks to an acceptable level.....
    2.14 It continues to be my view that there should be a formal written agreement between the Local Authority and [the parents] which clearly sets out the expectations that the Local Authority have. This would leave no room for error or confusion and such an agreement could be used as a measure of progress for the three monthly reviews."

  17. At the final hearing on 28 May 2008 all parties urged the making of a supervision order supported by such an order and agreement.
  18. The proposal was supported by a written agreement signed at Court by the Parents and approved by Ms JB and the Guardian in the following terms:
  19. "•     That the local authority will continue to assist support and advise the parents, with the social worker initially visiting fortnightly, the frequency of visits to be reviewed in three months' time.
    •     That the care plan, the agreement of and B's progress will be formally reviewed every three months.
    •     That the parents shall ensure that B shall continue to attend nursery, with the parents to notify the local authority if B does not attend for any reason.
    •     The parents shall co-operate with all the health professionals, including the health visitor, and shall notify the social worker immediately if B sustains any significant injury.
    •     The parents shall continue to co-operate with social services, allow the social worker access and [the father] shall be present upon reasonable notice.
    •     The parents shall inform Social Services when they consider that they no longer need to attend their groups in advance of any attendance. The local authority will contact the respective agencies to confirm that they are in agreement.
    •     The parents shall attend and contribute to the three-monthly reviews.
    •     Failure to comply will lead to an immediate review of the appropriateness of the placement, which could include returning the matter to Court to seek B's removal."

  20. The Judge heard evidence from Ms JB, the guardian and the council social worker in support of the making of a Supervision Order and reserved judgment.
  21. The judgment below

  22. In his judgment dated 19 June 2008 the Judge indicated that, despite the agreement of the parties that a supervision order was appropriate, he intended to make a care order and he duly did so on 11 July 2008.
  23. The reasoning of the Judge appears clearly from his judgment which, after a recitation of the evidence which emphasised the shifting views of the professionals on their journey towards consensus, concisely set out the various matters which he considered. The Judge stated himself satisfied that, on the evidence before him, it was right that B should be returned to the care of the parents, the sole issue being the generally recognised concern at the possibility of risk of further injury to B in a case where the parents continued to deny the earlier findings of non-accidental injury.
  24. In this respect, it is relevant to note the observations of the Judge upon the development of the parent's co-operation and his assessment of their evidence. Referring to evidence received from the author of the Broomhill Family Centre report, the Judge stated:
  25. "She also said, and I accept, that the father said that he would access STOP if necessary, but that he did not feel it was necessary, and that when counselling was suggested to the mother she said that she did not feel it was necessary. I accept that, as matters have turned out, both parents have attended their respective counsellors with commitment and enthusiasm but I accept also that this was not their original position. When the parents gave evidence I found little to ease my concerns about these matters. I acknowledge the clear and substantial progress made by each parent in co-operating with support agencies, social services and other professionals since the Broomhill Report. I am however, satisfied not only that both the father and mother have continued to deny the findings, but also that the overwhelming likelihood is that they will continue to do so. While I acknowledge that the parents were under considerable stress and anxiety at the final hearing, that does not, in my view, fully explain why the father was on occasion argumentative, somewhat truculent and even angry while in the witness box. I did not find him an impressive or reliable witness and I formed the impression, as it appears did Judge Kamil, that he was prepared to adjust his evidence as he thought fit. He maintained his bold assertion, rejected in the findings that Doctor Roper had lied when he said that the parents were asked about domestic violence. I also mention that in evidence the father said that he would give up drink for the rest of his life but later told [Ms JB] that he could not say that he will never get drunk again. None of these matters inspires confidence for the future.
    My concerns about mother are less, but she did not fully impress me as a witness. Like father, she maintained a refusal to acknowledge non-accidental injury and she too maintained that Dr R had not asked about domestic violence, although she stopped short of calling him a liar."

  26. Having completed his review of the evidence, the Judge progressed through the checklist set out in s.l(3) of the Children Act 1989 dealing with the question of risk and the need for protection as follows under the relevant headings:
  27. "Physical, emotional, and educational needs
    There is no suggestion that B's day to day needs are not being met. He has the care of his parents or when he is not with them his paternal grandmother or his paternal aunt and her husband. He has started nursery, but this is mainly for child protection purposes at this stage. While his day to day needs are met, it appears to a high standard, a remaining need is protection from further injury, a need which will continue for some time yet.
    Age, sex and background and relevant characteristics
    B is still less than 20 months old. He is still vulnerable and will for some time have limited ability to take himself out of harm's way or communicate adequately his fears and concerns. On the making of the final order, the support of the Guardian will cease."
    Any harm which the child has suffered or is at risk of suffering.
    B suffered serious harm in January 2007. The authority, the guardian, Broomhill and Ms JB agree that he remains at risk of further harm, and I so find. The reason is the continuing absence of explanation of how, why and at whose hands he suffered injury. The authority now shares the opinion of the guardian and of Ms JB that the risk could be managed in view of the parents' progress in addressing matters which can only be assumed to have triggered the injury.
    Capability of parents and others to meet needs.
    B's day to day needs are being met. The parents have brought up J and M without cause for criticism. They provided a permanent home for [B's cousin] and have apparently transformed him from an almost feral child to a happy and settled adolescent. My sole concern is the risk of further injury to B, a risk which seems set to remain although it will diminish as he becomes more able to protect himself and communicate more competently. The question is how this Court can ensure his safety if he is to live with one parent who injured him and another who has failed to protect him."

  28. Turning to the range of orders at his disposal in this case, which he identified as an interim care order (which he rejected), a supervision order or a care order, the Judge state as follows:
  29. "B needs finality at this stage and there are no matters remaining to be dealt with to inform the choice of final order. The case of Re S (A Minor) (Care or Supervision Order) 1993 contains a useful comparison of those orders. A care order has more teeth than a supervision order. A supervision order has a limited duration of 12 months on first application with a possible extension period of up to 2 or more years - see T (A Child) v Wakefield MDC 2008 - whereas a care order remains in force until majority or earlier application is discharged. That is important because, under a supervision order the protection will cease at the latest when B is only 4 years and 8 months, and as early as when he is 2 years 8 months, absent any application to extend.
    The care order power to remove a child immediately and without Court intervention is not crucial to my decision because that power does not protect B from what Mr Booth described as an acute event, which is the risk in this case."

  30. The Judge then asked himself if he could disregard the now unanimous view of the parties supported by Ms JB that a supervision order was appropriate. He observed:
  31. "I must not disregard those views and the guardian's wishes without good reason. I accept that [they] are experienced witnesses. However I bear in mind the following. Broomhill initially advised that it was unsafe to rehabilitate B. Their view is unchanged and the reason for it is the parents' failure to accept the findings. That failure remains and is likely to continue. The effect of the parent's undoubted progress since the end of October 2007 reduced the risk but not so as to remove it. The favoured course for the supervision order can ensure protection for only 12 months. Thereafter it is for the authority to take the initiative to extend the order. Both the guardian and Ms JB said that the authority does not need to share parental responsibility and that the parents should be empowered to parent B without intervention.

    That raises the question of which is the lesser evil -unnecessary intervention or expiry of protection before B can protect himself."

  32. The Judge stated his conclusion as follows:
  33. "Put in that way the question is easier to answer. I am not satisfied the continuing sharing of parental responsibility will be harmful as distinct from irksome to his parents.
    I do not like to reject the view urged upon me, or the evidence before me. I feel however that its approach misses the real point of this case, which is the protection of B if he is to live with one of the persons responsible for his injuries, the true reason for which will never be known. I also bear in mind the way that this case has developed and the changes of stance (apart from that of the parents regarding acknowledgment of findings) which have characterised it and which might auger uncertainties. It is appropriate in such circumstances to place responsibility for B's safety on the authority rather than on his parents.
    I therefore propose that the safeguards of a care order should continue as long as is necessary and I would not expect any application to discharge the order until B is 5 or starts full time school, whichever is later."

  34. Accordingly the Judge made an order that B be placed in the care of the Council.
  35. The law

  36. As aptly described by Bracewell J in Re T (A minor): (Care or Supervision Order) [1994] 1 FLR 103 CA at 106H- 107B:
  37. "The nature of a supervision order is to help and assist the child where the parents have full responsibility for the care and upbringing. It does not involve any statutory level of monitoring and it does not give the local authority parental responsibility. Any conditions attached to a supervision order cannot in themselves be enforced by the court. That was made clear in the case of Croydon London Borough Council v A (No. 3) [1992] 2 FLR 350; breaches can only be evidence in further proceedings.
    The essence of a supervision order is to advise, assist and befriend the child. The directions that may be attached under Sch. 3 to the Children Act 1989 are restricted to requiring a responsible person, that is the parent in this case, to take reasonable steps to ensure the child lives at a specified place, presents to a specified person, participates in specified activities and submits to various examinations where appropriate. The limits of such requirements do not, in my judgment begin to address the problems of parents who continue to exercise their parental responsibilities in a way which still merits some criticism.
    The contract drawn up between the parents and the local authority cannot be enforced without further court proceedings, whereas a care order places on the local authority a positive duty to ensure the welfare of the child and protect her from inadequate parenting. That is the framework and essence of the Act."

  38. Remarks to essentially similar effect were made by Waite LJ in Re V (Care or Supervision Order) [1996] 1 FLR 776 at 786A-B, emphasising that provisions incorporated into a Supervision Order are incapable of being enforced directly by any of the ordinary processes by which courts of law enforce obedience to their directions, the only sanction for infringement being a return to court by the Supervisor, the ultimate sanction being the making of a care order under which the local authority will begin the necessary powers to enforce its will.
  39. The most detailed analysis of the distinction between the two forms of order is that of His Honour Judge Coningsby QC sitting as a judge of the Family Division in Re S (J) (a minor) (Care or Supervision Order) [1993] 2 FLR 919, referred to in the judgment below. It is not necessary to refer to that analysis of the purposes of this case. I shall, however, refer to a passage directed to the borderline between the appropriateness of a Care Order on the one hand or a Supervision Order on the other which may well have influenced the Judge in this case. At 957A et seq, Judge Coningsby stated:
  40. "I think there may be cases where one can actually isolate a particular situation where parental responsibility may have to be exercised at a moment's notice by a local authority and is obvious that that is going to be a Care Order case.

    However, I do not believe that that is the only approach .... It is not necessary, as I understand the relevant parts of the Children Act, to be able to isolate a likely circumstance for exercising parental responsibility before it becomes right to make a Care Order. I do not believe that the legislation is as restrictive as that. I believe that it is an appropriate approach for the court to look a the case as a whole, to look at the gravity of it, to decide what its view is as to the risk of harm to the child (both physical harm as in this case and also emotional deprivation or failure to thrive because of the situation in the home or of some other situation arising) and to decide whether, in the light of the gravity of the case as a whole, the local authority ought to have imposed upon it the extra duties that I have referred to. If it comes to the conclusion, looking at the case as a whole, that that is so, then it should make a Care Order. Therefore it is not necessary to be able to put one's finger specifically on some aspect of parental responsibility which might need to be exercised by the local authority."

  41. That was a passage approved and highlighted in Re B (Care or Supervision Order) [1996] 2 FLR 693 at 706A per Holman J, who at the same time emphasised that a Care Order was a more serious order and should only be made if the stronger order were necessary for the protection of the child.
  42. Whilst I would not seek to detract from the substance of the passage I have quoted from the judgment of His Honour Judge Coningsby, I would sound a note of caution. Since the advent of the Human Rights Act 1998 it is necessary also to emphasise and have regard to the issue of proportionality when contemplating the removal of parental responsibility from, or its enforced sharing by, those otherwise entitled to exercise it exclusively.
  43. In this respect, Hale LJ (as she then was) in Re O (Supervision Order) [2001] 1 FLR 923 at 928-9, rehearsed the differences between a care order and a supervision order in terms of (i) the power under a care order to remove the child without recourse to the Court (ii) the sharing of parental responsibility and (iii) the potential duration of the orders made, she stated:
  44. "[24] ... There are three main points. First, it gives a local authority power to remove the child without recourse even to a family proceedings court in an emergency protection order. The parents' only means of challenging that removal is by an application to discharge the care order, which usually takes some time to be heard, especially if, as in this case, it would have to be transferred to a higher court...
    [25] Secondly, it gives the local authority parental responsibility for the child coupled with the power to control the parents' exercise of that responsibility. Again, the care plan does not suggest that the local authority wished to exercise parental responsibility or control the parent's exercise of it. It expressly stated, for example, "that A's social, moral and academic education will be the responsibility of the parents". Under "Health" it points out that he continues to be in good health and he will need to receive the usual checkups and vaccinations by the health visitor and GP service". This is not indicative of the suggestion that the local authority needs to be in a position to arrange that for him. In any event, it can be done by inserting appropriate requirements in the supervision order.
    [26] The third difference is one of timing. Mr Forbes in particular has argued that it might be difficult to achieve a further order in 3 years' time, but of course that difficulty would only arise if by then the risk of harm had disappeared or almost disappeared, or the need for an order had disappeared or almost disappeared. If that were not the case, the local authority would have to investigate and take any action which was though appropriate to protect the child.
    [27] ... Each case [on the choice between care and supervision orders] is an exercise of discretion on its own particular facts and earlier case law may be of limited help in this context. But, in any event, it has to be considered in the light of the Human Rights Act 1998 and Art. 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950....
    [28] Proportionality ... is the key. It will be the duty of everyone to ensure that in those cases where supervision order is proportionate as a response to the risk presented, a supervision order can be made to work as indeed the framers of the Children Act 1989 always hoped that it would be made to work. "

  45. In my view, the necessity to consider proportionality means that, in any case where there is a fine balance to be struck as to which order is appropriate, the reasoning behind the order made should be clearly spelt out in the judgment as a matter of detailed analysis rather than overall impression.
  46. Furthermore, and independently of Human Rights Act requirements, in an earlier judgment, Oxfordshire County Council v L [1998] 1 FLR 70, Hale J (as she then was), in allowing an appeal from the Family Proceedings Court, emphasised that cogent and strong reasons are required to force upon a local authority a more draconian order than that for which it has asked. In that case the local authority had applied for supervision orders, whereas the guardian supported the making of a care order. The Court had made care orders and the local authority successfully appealed.
  47. Hale J held, as she reiterated in Re O that where it was agreed that the children should remain living at home, two principal reasons might be advanced for making a care order rather than a supervision order: (i) that the local authority needed the power, not only to remove the children instantly but also to plan for their long term placement outside the family without a prior judicial sanction. In this connection Parliament intended that the very serious step of removing a child could usually only be done under the sanction of independent judicial authority rather than as a result of administrative decision. (ii) that it was necessary for the local authority to share parental responsibility with the parents; in this connection the fact that considerable help and advice might be necessary over a long period was not itself a reason for making a care order. She went on to make clear that (iii) it is wrong to impose an order simply to encourage a local authority to perform its statutory duties towards children in need. It would be unfortunate if an order not otherwise justified in the interests of the children were to be justified on the basis that it was necessary to oblige a local authority to fulfil such responsibilities.
  48. The grounds of appeal

  49. It is on this more recent jurisprudence, which receives no mention in the judgment below, that Mr Booth relies in pursuing this appeal. He submits that the Judge failed to identify any clear and cogent or strong reason to justify forcing upon the Council a more draconian order than that for which it had asked and which the parties (and more importantly the experienced guardian) were agreed was appropriate. He complains that the Judge failed to address or consider Re O or the Oxfordshire County Council case, although he had been referred to them in the course of argument. Mr Booth points out, that in the latter case, the justices' failure to address the consideration that under a care order the local authority would have the power to remove B and place him elsewhere without judicial sanction was described as "a serious flaw" in the justices' reasoning.
  50. Mr Booth submits that, in truth, this was a classic case for the making of a supervision order given (a) the nature of the risk (b) the parents' level of co-operation (c) the absence of the need in practice for the local authority to share parental responsibility and (d) the fact that the local authority should be presumed willingly and actively to perform its duty to investigate any future child protection issues. Mr Booth submits that in applying a "lesser of two evils" test ("unnecessary intervention or expiry of protection before B can protect himself), the Judge bypassed a proper process of analysis and ignored the need for proportionality.
  51. Further, it is complained that the Judge was wrong to make a care order as an instrument of long term protection, so as to prevent the exercise of discretion by the local authority to decide whether or not to seek to extend the process of supervision for longer than 12 months. Mr Booth also submits that the Judge was wrong to indicate that he would not expect any application to discharge the care order until B was 5 years old or had started school, thus inhibiting the local authority in the exercise of its duty at each statutory review to consider whether application should be made to discharge the care order.
  52. The permission to appeal

  53. In granting permission to appeal in this case, Wall LJ expressed himself unhappy about the fact that there was unlikely to be any opposition to the appeal from any of the parties involved. Having identified the important point in the appeal as being the extent to which, and the circumstances in which, it is appropriate for a Judge to refuse to make an order which the parties ask him to make, he requested CAFCASS Legal to instruct counsel to act as amicus curiae to assist the Court on the general points of public importance involved and the overall responsibilities of a judge in the situation with which Judge Ibbotson had to deal. In this respect we are grateful to have received the assistance of Mr Chisholm as amicus.
  54. Was the judge obliged to give effect to the parties' agreement?

  55. Mr Chisholm has submitted (and speaking for myself, I needed no persuasion) that, on being presented with a proposed agreed order of this kind, the Court retains a discretion, and indeed is under a duty, to consider the appropriateness of the order before approving the care plan put forward by the local authority. One only has to consider the requirement set out in section 1(1) of the Children Act 1989 that, when a Court determines any question with respect to the upbringing of a child, the child's welfare shall be the Court's paramount consideration, to appreciate that must be so. Furthermore, by s.l(5), where the Court is considering whether or not to make one or more orders under the Act with respect to a child, it shall not make that order or any of the orders unless it considers that doing so would be better for the child than making no order at all. Accordingly the Court is bound to submit to critical scrutiny the terms of any care plan or order proposed to it by way of a final disposal of care proceedings.
  56. In Devon County Council v S [1992] 2 FLR 244, the Court was concerned with an appeal by a local authority against the decision of justices who, on an application to convert an interim care order into a full care order, the terms of which were agreed between all the parties concerned, had insisted on hearing oral evidence at length and, without prior warning, to the parties of their intention, made an order providing for contact which was substantially different from that which had been agreed. Thorpe LJ recognised at p. 247 that:
  57. "... there is an overriding duty in the Court to investigate the proposals advanced by the parties, even when those proposals are fully agreed"

    but went on to state that:

    "... the profundity of that investigation must reflect the reality that there is consensus amongst the parties to the litigation, particularly when the parties include a public authority with statutory duties and a guardian ad litem on behalf of the child."

  58. In Re G (A Minor) (Care Proceedings) [1994] 2 FLR 69, in relation to the duty of the Court to satisfy itself that the existence of the threshold criteria for a Section 31 order have been established, Ward LJ referred to the passage from Re G which I have just quoted and stated:
  59. "... I respectfully agree with and adopt this sentence in Thorpe J's judgment. There is a plain and overriding duty in the court to investigate the material placed before it for the making of a care order under s.31. The court is no rubber-stamp".

  60. Wall LJ held that the nature of the investigation to be carried out by the Court depended on the facts of the individual case. He made the further observation that, if the parties are agreed that a care order is appropriate and are agreed upon the factual substrata underlying the fulfilment of the threshold criteria, then the Court's investigation may properly be limited to perusal of documentation and approval of an agreed order.
  61. There appears to be no reported case in which the court has made a care order despite the unanimous agreement of the parties to the making of a supervision order. The authorities directly concerned with the question whether or not, in given circumstances, a care order is to be preferred have all involved adjudication of opposing cases advanced by the parties. Nonetheless, it seems to me clear that, even when that is not so, the power in s.31 (5) to make a care order on an application for a supervision order cannot be neutered by an agreement reached between the parties outside the court, particularly where, as here, the proceedings have originated in an application for a care order which has become "diluted" by the time of the final hearing. The decision to end proceedings and to make the appropriate statutory order is and remains the responsibility of the Court. Indeed, the duty of the court to treat the welfare of the child as the paramount consideration requires the Court to make an appropriate judicial investigation. While it may well be proper, as observed by Wall J in Re G, to limit that investigation to perusal of the documentation where there is unanimity between the local authority the guardian and the parents upon the appropriate order, it may nonetheless be the case, by reason of the history of the proceedings and reservations which have developed in the Judge's mind in relation to the conduct of the parties or the welfare of the child, that a more elaborate investigation, including the hearing of oral evidence, is appropriate.
  62. In different, but comparable, circumstances, where a Judge is contemplating consensual withdrawal of proceedings:
  63. "... a Court is [not] bound to allow the withdrawal of proceedings where all of the parties agree that that should occur. Family Proceedings Rules 1991, r4.5 (4) expressly provides that a precondition of withdrawal is that the "the Court thinks fit". There is thus a judicial discretion and it does not, therefore, follow as night follows day that the Court's discretion of proceedings would end simply because the parties all agree that then proceeding should be withdrawn. The withdrawal provisions (and indeed the guardian system in public law itself) came into existence as a result of childcare tragedies in the 1970s and 1980s. The Court's role in such matters is not to be that of a neutered rubber stamp for the parties' request."

    See per McFarlane J in A County Council v DP, RS, PS (by the Children's Guardian) [2005] 2 FLR 1031 at para. [19].

  64. Similarly, in private law proceedings, the President's "Practice direction: Residence and Contact Orders: Domestic Violence and Harm" of 9 May 2008 which applies to any family proceedings in which an application is made for a residence order or contact order in respect of a child under the 1989 Act or the Adoption and Children Act 2002 or in which any question arises abut residence or contact, provides that:
  65. "4 ... any proposed residence or contact order, whether to be made by agreement between the parties or otherwise must be scrutinised by the Court accordingly. The Court shall not make a consent order for residence or contact or give permission for an application for a residence or contact order to be withdrawn, unless the parties are present in Court, except where it is satisfied that there is no risk of harm to the child in so doing."

  66. Finally, and in any event, s.31(5) of the 1989 Act provides that:
  67. "The Court may -
    (a) on an application for a care order, make a supervision order;
    (b) on an application for a supervision order, make a care order"

  68. This provision expressly confers upon the Judge discretion on an application for either type of order to refuse one and substitute the other. There is no suggestion that the Court is fettered in its powers under this section by reason of any agreement which the parties may have reached as to which is the more appropriate. What is important when the Court addresses this question whether or not to reflect the agreement of the parties in its order or to take some different course, is that the Court should examine the background facts as well as the reasoning underlying the agreement and come to a measured conclusion, taking the relevant considerations into account. I would add that Human Rights considerations dictate that, when faced with a choice between the making of a care order and the less draconian provisions of a supervision order supported by the agreement of all the parties, the Court should, so far as is consistent with the paramountcy of the child's welfare, favour the making of a supervision order, as the sufficient and proportionate response to any risk presented to the child, in preference to the protection afforded by a care order, given the potentially greater inroad into the parents' (and indeed the child's) rights to respect for their family and private life which the latter represents.
  69. Additionally, as a broad proposition, where the decision which the Judge is disposed to make would result in rejecting the unanimous approach of the parties, it is important that the Judge should justify with some precision the reasoning for taking his proposed course, involving as it will a departure from professional assessment and guidance, often from a number of sources, such as the guardian, council social workers and, in this case, an independent social worker.
  70. In a somewhat different context, but relevant to this case, the extent of a judge's entitlement to depart from the opinion of experts in care cases was elucidated in Re M (Residence) [2002] EWCA Civ 1052 [2002] 2 FLR 1059 by Thorpe LJ. In that case he drew a distinction between (a) those matters and areas of assessment which are rightly the province of those whose professional training and qualification and clinical expertise equips them for the task in hand, such as the evidence of medical experts as to physical injuries sustained by children or those aspects of risk assessments which depend upon medical or psychiatric opinion, and (b) those where the Judge is evaluating the opinion of experts as to placement, management and welfare issues which lie at the heart of care proceedings and must ultimately be a matter for the judge. At paragraph [57] of his judgment (p. 1071) Thorpe LJ observed:
  71. "... The Judge was at liberty to depart from the opinion of the experts, even if unanimous, on issues of future placement and management and perhaps even on attachment, balancing risks as against advantages."

    He added, however, in relation to the issues before him that:

    "in so far as the Judge is fully entitled to depart from the experts in relation to issues of management, placement and welfare, it was incumbent upon him to explain his departure a good deal more fully than he did in the single paragraph I have cited."

  72. So far as this case is concerned, I consider that in the situation in which the Judge found himself, having regard to the history of unexplained injury, his own view of the parents as witnesses and the shifting views of the professionals, the Judge was not only entitled, but fully justified, in exploring with them the validity of the outcome on which they eventually agreed. Indeed, he would have been doing less than his duty had he not sought to do so. I now turn to the judgment in the light of those observations.
  73. The Judge's approach

  74. I should say at once that, whatever may have been his conclusion, I do not think that the Judge's general approach or broad summary of the relevant issues can be faulted. So far as the risk to B was concerned, he plainly thought that the home environment presented a continuing risk (of injury rather than neglect) to a helpless and inarticulate child and this inclined him to make a care order. He identified the need for protection if B were to live with one parent who was responsible for his injuries and with another who had failed to protect him and he took into account the fact that the Council, the Guardian and Ms JB were all agreed that B remained at risk of further harm. He rightly identified the problematic feature for any Judge, namely the continuing absence of any explanation how, why and at whose hands, the child suffered injury and (whatever the view of the professionals) he was himself troubled by the demeanour and stance of the father earlier in the proceedings. (See paragraph 21 above).
  75. In applying the law to the facts, the Judge rightly acknowledged the obligation on the Court to make an order which was "the least interventionist as is compatible with the child's welfare". He noted that a care order "has more teeth" than a supervision order. He also noted that a supervision order has a limited life, whereas the care order does not. He noted that under a care order there was a power to remove the child immediately and without Court intervention; however, he dismissed that aspect as being crucial to his decision because the power would not protect B from the "acute event" which he identified as this risk in this case, but in spite of which he accepted B should be restored to his parents. He balanced what he identified as the potential "unnecessary intervention" involved in making a care order against what he identified as the "expiry of protection before B can protect himself which might occur if the favoured measure was a protection order. In other words it was nature and length of the protection likely to be afforded on respect of a child too young to protect or speak for himself which was crucial to his decision.
  76. In considering the grounds of appeal in this case, I start by reminding myself that the decision of the Judge was a matter of judicial discretion as to the appropriate order, and that he expressed himself both conscious of, and reluctant to disturb, the views of the professionals as to the appropriate order in the circumstances of the case. It was of course a case in which those views unanimously recognised the existence of a continuing risk in leaving B with those in whose hands a serious non-accidental injury had occurred and the question at issue was essentially the extent of the future level of protection necessary and proportionate to guard against that risk.
  77. In those circumstances I also remind myself of the observations of Baroness Hale in Re J (Child Returned Abroad: Human Rights) [2005] UKHL 40, [2006] AC 80 at [12]
  78. "If there is indeed a discretion in which various factors are relevant, the evaluation and balancing of those factors is... a matter for the trial Judge. Only if his decision is so plainly wrong that he must have given far too much weight to a particular factor is the appellate court entitled to interfere (see G v G). Too ready interference by the appellate court, particularly if it always seems to be in the direction of one result rather that the other, risks robbing the trial Judge of the discretion entrusted to him by the law."

    I would only seek to supplement that quotation by adding after the words "particular factor" the further words "or left some important consideration out of account".

  79. Turning to the grounds of the appeal, it is the essential thrust of Mr Booth's submissions that the Judge either overlooked or ignored the judgments in the Re 0 and the Oxfordshire CC case. Certainly there is no reference to either and the word "proportionate" appears nowhere in the judgment. On the other hand, it seems to me that the concept of proportionality must have been in his mind. In referring to the evidence of the Guardian and Ms JB, the Judge highlighted their view that the making of a care order would be "too interventionist, because it would give the authorities a share of parental responsibility and the parents would not be able to decide how to raise B without referring to Social Services". It seems plain, in context, that in referring to "unnecessary intervention" in his judgment, the Judge was adopting a shorthand for the invasion of the parents' sole parental responsibility (i.e. family life) represented by the making of a care order.
  80. Mr Booth's submission that the Judge failed to address in his judgment the consideration that, under a care order, the Local Authority would have the power to remove B and place him elsewhere without judicial sanction is incorrect. However, it is the case that the Judge treated that power as not "crucial" to the decision.
  81. As to Mr Booth's assertion that this was a classic case for the making of a supervision order, that involves taking at face value the views expressed by the professionals before the Judge, without regard to the doubts which the Judge himself experienced on that score. Mr Booth submits that, in the light of the parents' level of co-operation the extent of the future risk was minimal. That was not the Judge's stated view; his view was that it was uncertain, which is a different matter. He was concerned, like all the professionals, at the failure of the parents to admit or acknowledge the original non-accidental injury. He was also concerned at the view of the Broomhill assessors that the rehabilitation of B to his parents was an unsafe course (see paragraph 24 above). While he did not doubt the parents' current level of co-operation, his personal view of the father when he had seen him in the witness box 6 months earlier was that his assertions were not reliable and tended to adjust to his audience. It was this which undermined the Judge's confidence for the long term. He was also dealing with a situation where the Council had (at start of the December hearing) been seeking permanent placement outside the family and the Guardian herself had originally contemplated the making of a care order pursuant to which there should be placement or with the parents.
  82. The Judge dealt with the aspect of "unnecessary intervention" by expressing himself satisfied that "the continuing sharing of parental responsibility would not be harmful to B, albeit it might be irksome to his parents". He identified the "real point in this case" as being "the protection of B if he is to live with one of the persons responsible for his injuries, the true reason for which will never be known". In this respect he repeated his concern at the way the case had developed and the changes of stance which had characterised it, observing that this "might augur uncertainties" for the future. It was those uncertainties which dictated his view that it was appropriate to make a care order, so that the responsibility for B's safety lay upon the local authority rather than on the parents.
  83. In those circumstances, can it be said that the Judge was plainly wrong to decide, contrary to the view of the parties, that the risk in returning the 2-year old B to the household in which he had been injured demanded the protection of a care order (with parental responsibility residing in the Council) until B became of school age? The real weight of Mr Booth's submission is that, on an analysis of the kind required of the Court, it is indeed plain that the Judge reached the wrong conclusion having failed to follow the guidance of authority in this respect.
  84. On careful consideration, I consider Mr Booth is correct. Read in the light of the decision in Re O and the Oxfordshire County Council case, the following criticisms of the judgment may justly be made. As already indicated, three reasons were identified in those decisions as justifying the making of a care order even though children remained living at home. The first was where the local authority needs the power not only to remove the children instantly but also to plan for their long term placement outside the family without any prior judicial sanction. That was not suggested to be the position here and, on the Judge's own assessment, it was not a critical element in his decision. In my view he was right to take that view. Whatever the misgivings of Broomhill at the time of their original assessment, the parents had over the subsequent period of 7 months successfully addressed, to the satisfaction of all the agencies and other professionals involved, matters which Broomhill had said were required to be addressed before consideration could be given to returning B to the parents' care. On that basis, the professionals and the Judge were all agreed that, contrary to the original assessment, return of B to the care of the parents was the proper course; any residual risk being insufficient to justify non-return to parents whose parenting skills were demonstrably well able to meet B's day to day needs to a high standard in a family in which the siblings were being brought up without any cause for concern. So far as ongoing supervision or inspection by the Council was concerned, it remained therefore to decide what would be a suitable or adequate regime in this respect, whether under the umbrella of a care or supervision order. That regime was the one provided for in the agreement signed by the parents which contained the requirements of the professionals, as supplemented by the Judge. Neither they nor he identified anything more as being required by way of practical steps or intervention by the social services. If contrary to the expectation of they experts and the Judge, a further "acute event" were to occur in the future, the Council would have available the remedy of an emergency protection order and/or an interim care order should the parents resist the immediate removal of B to care within the extended family.
  85. Turning to the second reason justifying a care order developed by Hale LJ (i.e. that it was necessary for the local authority to share parental responsibility), as I have already indicated, the Judge's decision did not turn upon any aspect of parental responsibility which the parents might be thought unfit to exercise or which might call for intervention on a matter not covered in the parental agreement. Nor did it turn upon any evidence of non co-operation on the part of the parents. It turned upon the length of time that the regime provided for under the agreement might last if it were coupled only with a supervision order, the duration of which might only be one year or (by extension) three years (see s.6 of Schedule 3 to the 1989 Act), whereas, in the Judge's view, if a care order were made, it should not be discharged until B was 5 or started full time school, whichever was the later (see paragraphs 23 and 52 above).
  86. With the intention of ensuring oversight of B until he was 5 and of school age the Judge clearly intended to remove the discretion of the Council not to extend the supervision order for 2 years and stated that in his view there should be no application to discharge the care order which he proposed to make before B was 5 years old (some three years and four months from the date of the Judge's order). In my view, having decided that rehabilitation was the proper course and having indicated that the power of the Court to remove B without Court order was not crucial, by which I take the Judge to have meant that it was not the governing factor in his decision, he was wrong to decide the matter on the basis of his own view as to the minimum period over which the protective regime provided for in the parental agreement was likely to be required. That was something which would plainly depend upon the parents' continuing progress. That in turn was a matter which it was appropriate to leave to the Council in its final review of the position at the end of the 12 month period of the supervision order. There is no suggestion in this case, nor any reason to suppose that the Council was or is other than closely and conscientiously concerned to supervise the safety, care and upbringing of B for as long as may prove necessary, or that it would make other than a careful judgment as to the need to renew the supervision order after 12 months if not satisfied that the parents had fully demonstrated their ability safely to parent B from day to day. No doubt the Council will review the matter and consider the question of renewal of the supervision order with great care in the light of the Judge's observations and it may well be that it will consider it desirable to extend that order for a period of 2 years thereafter. Indeed, if a supervision order were now substituted for the Judge's order, such renewal would take the period of protection achieved several months beyond, rather than short of, B's fifth birthday.
  87. As observed by Hale J in the Oxfordshire County Council case, there must in general be cogent and strong reasons to force upon a local authority a more draconian order than that for which it has asked. All the more is that the case when the child's guardian supports the making of a less draconian order as appropriate to the child's needs. In my view, no such strong and cogent reasons were demonstrated in this case. I would therefore allow the appeal and vary the care order made by the Judge to that of a 12-month supervision order effective from the date of the judgment of this Court. The form of the order should record in its preamble the terms of the parental agreement set out in paragraph 17 of this judgment, and the body of the order should include a requirement under section 3 of Schedule 3 to the 1989 Act that the parents, as responsible persons, take all reasonable steps to ensure compliance with any direction given by the supervisor under Schedule 3.
  88. Arden LJ:

  89. I agree
  90. Jackson LJ

  91. I also agree

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