The Court of Appeal stresses the importance of proportionality in decisions on care orders

The Court of Appeal recently overturned the care order regarding a child living at home with a complex care package, highlighting the importance of proportionality. Hazel Samuriwo analyses the judgment.

In West Sussex County Council v AB & Anor [2025] EWCA Civ 132 CD, a 16-year-old girl with complex needs, and beyond parental control, had been detained under the Mental Health Act 1983 and was subject to Deprivation of Liberty (DoLs) orders since July 2023. Despite her mother’s (AB) impressive care and commitment, CD required intensive support, including professional carers in AB’s home. Care proceedings were initiated by the local authority in November 2023, resulting in an interim care order. 

A contested final hearing took place in June 2024, before CD's 17th birthday in October. The guardian argued for a care order. George Butler, representing the local authority, argued against the necessity of a care order, citing existing statutory duties under Part III of the CA 1989, support under s117 MHA 1983 for former patients, care leaving provisions, and the DOLS regime. The mother supported the local authority. [§11-12, 19].

Decision made by HHJ Bedford and reasons ​

HHJ Bedford made a final care order. In summary, the judge’s decision was based on: 

• ensuring the provision of necessary services, given the complex care package, 
• addressing the [perceived] risk of non-compliance by AB, 
• supporting the transition to adult services, 
• maintaining complete compliance with the care plan to protect CD’s welfare, and 
• agreement with the Guardian’s analysis [§15-20]. ​

Grounds of appeal and respondents’ positions ​

The local authority grounds are set out in para 21-23 of the judgment. The court of appeal distilled the local authority's overall assertion to be as follows: making a care order was disproportionate, not the least interventionist order and was not necessary in this case. ​Mr Butler relied on the President’s decision in the guidance from JW (Child at home under care order) V [2023] EWCA Civ 944. He also argued that the judge gave too much weight to AB’s past non-compliance and wrongly used the care order to ensure the local authority delivered the care plan. ​

Counsel for the mother agreed with LA. ​ Counsel for the Guardian supported the care order but accepted that the judge erred in using it to ensure the care plan’s delivery. ​​

Relevant case: Re JR

Following the appeal hearing, but prior to circulating their draft judgments, the Court of Appeal became aware of a relevant decision of Lieven J’s in Re JR (YR, Re (Deprivation of Liberty - Care Order - Principles of Care) [2024] EWHC 564 (Fam)) which had not been presented to the trial Judge.

Re JR involved a 16-year-old boy with complex needs who was accommodated under s.20 Children Act 1989 and was subject to DoLs order.​ The local authority sought to withdraw its application for a care order; however, the children’s guardian opposed this. ​​In this case Lieven J made a care order. The key reasons for making a care order were:

1. the need for certainty in decision-making about JR’s care, especially given past disagreements between the parents and the local authority. ​​
2. a care order in that case would provide greater oversight and ensure the local authority’s commitment to JR’s care plan, which had been lacking in the past. ​​​

Decision of the Court of Appeal and reasons

The leading judgment was delivered by Sir Andrew McFarlane.

The appeal was allowed and the care order set aside. The Court of Appeal acknowledged the Judge’s extensive experience and profound concern for the future wellbeing of a most vulnerable young person, but ultimately found that the making of a care order was not justified for the following reasons: ​

1. Error in justifying the care order as a means of “obliging or galvanizing the local authority” to deliver the agreed care plan.

In identifying this error, the court noted that:

• A care order should not be used solely to encourage a local authority to perform its various statutory duties (§37 Re JW applied) ​​​[§30].
• 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 ​​​[§31].
• The local authority may in fact amend or fundamentally alter the care plan after the care order is made, subject only to the risk of an application to discharge the care order or judicial review proceedings: Oxfordshire County Council v L [1998] 1 FLR 70 ​​​[§32].
• In contrast to most care cases (the JW line of cases), in a case like that concerning CD’s the court does have a continuing role in monitoring the delivery of the care plan 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 trial judge’s judgment ​​​[§33].

2. Concerns about parental lack of cooperation had been overstated. 

• The Judge acknowledged concerns about AB potentially withdrawing cooperation with the care plan, but the evidence of past non-compliance was minor compared to the substantial evidence of AB’s established and sustained support. ​The court found that this concern did not justify the imposition of a care order [§34]. ​

3. Concern that a child is approaching 17 is not necessarily a justification for imposing a care order, where there are other legal mechanisms

• Whilst the court should acknowledge the limitations of care orders for children over 17, however the existing legal frameworks and ongoing DOLs process could adequately addressed any arising issues, including concerns about AB. [§35]. ​

4. The potential adverse impact of a care order on CD not sufficiently considered

• The potential adverse impact on CD from learning about the care order was a key concern but insufficiently considered by the judge [§36]. ​

5. Distinction with JR

• The Court of Appeal distinguished CD’s case from Re JR by highlighting:

1. Significant parental divergence in Re JR, in contrast to modest disagreements from AB in CD’s case. ​
2. Issues regarding the local authority’s reliability in Re JR, which were not an issue in CD’s case.

Commentary

The court’s decision to overturn the care order demonstrates a thorough consideration of the nuances in CD’s case and underscores the importance of proportionality in judicial decisions related to care orders, even in the context of complex care planning. Mechanisms such as DOLs can be used to monitor and ensure the delivery of care plans, and ongoing court involvement through DOLs or subsequent Court of Protection proceedings can address any disputes or variations in the care plan without the need for a care order. Advocacy for these alternative measures is essential, as they must be considered by the court prior to the imposition of care orders.

Hazel Samuriwo is a barrister at 42BR. George Butler, also of 42BR, represented the local authority.