England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Leeds County Court
His Honour Judge Hunt
LS06C06183

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/03/2008

Lord Justice Thorpe:

1. This appeal, for which His Honour Judge Peter Hunt gave permission, requires the construction of the statutory provisions contained in the Children Act 1989 governing the duration of supervision orders. The question arose in public law proceedings in the Leeds County Court brought by the City of Wakefield Metropolitan District Council to determine the future of a little girl, Amber, born on the 3^rd February 2005. The point of construction was considered by the judge in the course of his judgment of 31^st October 2007. Before the court were the Council and Amber's parents, separately represented, and Amber's guardian. At the end of his judgment HHJ Hunt acceded to the application for permission to appeal advanced by Mr Switalski for the father. In this court the father was represented by Miss Eleanor Hamilton QC leading Mr Switalski. She told us that her appeal was supported by the mother. The respondent's to the appeal, the Council and Amber's guardian were represented by Mr Anthony Hayden QC.
2. Supervision orders are very commonly made under the statutory provisions contained in the Act. Usually they are made where there is a real risk that the child's carers, ordinarily the child's parents, will fail or falter unless supported by a supervisor. Thus the supervision order where the risks indicate the need for statutory intervention is less intrusive than a care order.
3. This is not such a case. The capacity of Amber's parents to provide good enough parenting is not in question. The risks relate to a single member of the extended family, namely the maternal grandmother's fifty-five year old partner. He has a long criminal record for sexual offences and it is not disputed that he is and is likely to remain a danger even to a child as young as Amber. Amber's father fully comprehends the danger. Amber's mother, perhaps understandably, is less able to recognise the peril. If the danger is not indefinite it will certainly run until Amber is better able to protect herself. In these circumstances the judge's pragmatic decision to impose a supervision order for the maximum overall life which the statute allows to a supervision order was extremely sensible. Amber's need for protection was unlikely to diminish during those years. Making one clear order at the outset removes the trouble and expense of future applications to extend an order of shorter duration. Should circumstances change radically during the life of the order the parents would be free to exercise their right to apply for its discharge. Thus commonsense and pragmatism characterise the exercise of the judge's discretion.
4. Judge Hunt explained his decision thus:-

"30. So, in my judgment, this is a case where requirements lead me to make a supervision order. I do not believe I have had to decide previously whether the court has power to make an extended order even at this first stage. The citation from the commentary to the Act to be found in Hershman & McFarlane persuade me that there is no statutory barrier to making an order of two or three years – thus an order not confined to a maximum of twelve months. The relevant question is whether Amber's welfare requires an extended order of up to three years which the local authority seek, and which, again, the guardian supports. In my view Amber's welfare does require it. The court is considering here long-term risks. The source of the risk is someone who has had a 30-year connection with the family, and Amber is a very young child indeed. In my view, there is much in the guardian's point that the order may well need to run at least until amber becomes a full participant in full-time school. At the point of entering school she has the advantage then of the external protective procedures, by which I mean the school staff and the child protection protocols which exist in any school these days. Such safeguards may well bolster the efforts made by the parents in conjunction now with the statutory involvement of the social services to keep Amber safe and sound."

5. When Mr Switalski sought permission to appeal, limited to the question of whether the judge had jurisdiction to make a supervision order of more than twelve months duration, the judge said:-

"57. Well, I am simply going to add to what I have said in the Judgment by saying that it is my view that Parliament clearly envisaged that in some cases the courts would need, on welfare grounds, to make a supervision order which would extend for three years. It is my view, assisted, as I say, by the short citation I was given from the commentary in Hershman & McFarlane, that there is no barrier, even at the stage of the first hearing of an application, to making an order which extends, and is to be seen as an extension, from the regular twelve-month order for up to three years. That seems to me to be the constructive interpretation, in other words, the purposeful or purposive interpretation, of the statute because in this case where, even at this stage, the court can clearly see that the welfare of the child requires the making of what I might call a longer-term order it saves everybody the anxiety and the expense, often the public expense, of an application in twelve months down the line. Far better, it seems to me, in a case where the welfare of a child clearly leads the judge to conclude that such an extended order is necessary for that extension to be made and the order so to express it at the earliest possible stage."

6. Now let me set out the relevant statutory material. Both care and supervision orders must rest on the same foundation defined by Section 31 of the Act:-

"PART IV

CARE AND SUPERVISION

General

31 Care and supervision orders

(1) On the application of any local authority or authorised person, the court may make an order—

(a) placing the child with respect to whom the application is made in the care of a designated local authority; or

(b) putting him under the supervision of a designated local authority or of a probation officer.

(2) A court may only make a care order or supervision order if it is satisfied—

(a) that the child concerned is suffering, or is likely to suffer, significant harm; and

(b) that the harm, or likelihood of harm, is attributable to—

(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii) the child's being beyond parental control.

(3) No care order or supervision order may be made with respect to a child who has reached the age of seventeen (or sixteen, in the case of a child who is married).

(4) An application under this section may be made on its own or in any other family proceedings.

(5) 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."

"(11) In this Act—

"a care order" means (subject to section 105(1)) an order under subsection (1)(a) and (except where express provision to the contrary is made) includes an interim care order made under section 38; and

"a supervision order" means an order under subsection (1)(b) and (except where express provision to the contrary is made) includes an interim supervision order made under section 38."

7. The duties of the supervisor are defined in Section 35:-

"35 Supervision orders

(1) While a supervision order is in force it shall be the duty of the supervisor—

(a) to advise, assist and befriend the supervised child;

(b) to take such steps as are reasonably necessary to give effect to the order; and

(c) where—

(i) the order is not wholly complied with; or

(ii) the supervisor considers that the order may no longer be necessary,

to consider whether or not to apply to the court for its variation or discharge.

(2) Parts I and II of Schedule 3 make further provision with respect to supervision orders."

8. Other characteristics of the supervision order are to be found in Part II of schedule 3 to the Act. In particular paragraph 6 defines the duration of supervision orders as follows:-

"Part II Miscellaneous

Life of supervision order

6 (1) Subject to sub-paragraph (2) and section 91, a supervision order shall cease to have effect at the end of the period of one year beginning with the date on which it was made.

(2) A supervision order shall also cease to have effect if an event mentioned in section 25(1)(a) or (b) of the [1985 c. 60.] Child Abduction and Custody Act 1985 (termination of existing orders) occurs with respect to the child.

(3) Where the supervisor applies to the court to extend, or further extend, a supervision order the court may extend the order for such period as it may specify.

(4) A supervision order may not be extended so as to run beyond the end of the period of three years beginning with the date on which it was made."

9. For the purposes of this appeal this is the crucial statutory provision. Its lack of comprehensive clarity and the absence of any previous authority have created this appeal. Miss Hamilton's essential argument is simple. She submits that the words of the paragraph are on their face reasonably clear. By paragraph 6(1) "a supervision order shall cease to have effect at the end of the period of one year beginning with the date on which it was made." Sub-paragraph (3) permits the court to extend, or further extend "for such period as it may specify". However sub-paragraph (4) prohibits extension, or further extension "beyond the end of the period of three years beginning with the date on which it was made." Paragraph 6(1) does not allow the making of a supervision order for three years from the outset.
10. For that approach Miss Hamilton has two strong supports. The first is the statutory provisions which paragraph 6 replaced. There were to be found in Section 17 of the Children & Young Persons Act 1969 which provided, in simple terms:-

"a supervision order shall, unless it has previously been discharged, cease to have effect – (a) in any case, on the expiration of the period of three years, or such shorter period as may be specified in the order, beginning with the date on which the order was originally made."

11. So says Miss Hamilton it is abundantly clear that the legislative intention was to curtail to some degree the powers of the court. In future three years supervision was still achievable but only by extension of an order limited to twelve months when first made.
12. For her second support she cites the judgment of Butler-Sloss LJ in the case of Re: A (Supervision Order: Extension) [1995] 1FLR 335. In the course of her judgment she said:-

"There is no direct guidance in the Act on the criteria to be applied on the hearing of an extension application. One has to stand back and look at the purpose of the extension of the supervision order. In previous legislation the supervision order might run for a period up to 3 years. Schedule 3, Part II, para 6(1) now brings a supervision order to an end after one year, but by para (3) on application by the supervisor the court may extend it for such period as it may specify. The order may not, however, by para 6(4) be extended beyond 3 years. The effect is to give the court the power to grant extensions after one year but not exceeding 3 years. There is no bar, however, upon a local authority making a fresh application under s 31 for a supervision order in which case the threshold criteria would have to be proved to trigger the jurisdiction of the court to consider whether to make an order.

   If s 31 was to be imported into an application to extend an existing supervision order there would be no purpose to the specific provision in Sch 3, Part II, para 6. At the expiry of the one-year period the local authority or other supervisor would be required to make a fresh application under s 31. Looking at the framework of the Act, the s 31 application was clearly not intended to be invoked on extension applications, and bearing in mind the earlier provision for a 3-year period, the purpose of the alteration is in my view clear. It allows the local authority to keep in place a supervision order for 3 years as before but under the greater control of the courts, part of the philosophy of the Act at the application stage. After one year the local authority has to justify to the court that the welfare of the child requires the supervision order to continue and there is an opportunity for the application to extend to be opposed."

13. So says Miss Hamilton the extent of the court's jurisdiction is clearly defined. In a case such as the present the judge can only provide three years protection by making at least two orders, the first a supervision order of twelve months duration and the second an order extending the first for a further two years.
14. In his attractive skeleton Mr Hayden has of course made much of the good sense of the judge's approach and the need to construe any statutory ambiguity to enable judges to make sensible orders and to relieve the courts, and the parties, from the burden of unnecessary applications. He tells us that the pragmatic construction has become increasingly popular. That is reflected by the following comment in Hershman & McFarlane:-

"the wording of CA 1989, paragraph 6 seems to allow for the possibility that the original court making the supervision order may make an extended order at first instance when, or immediately after, making the first order if the supervisor makes an application for an extended order at that hearing."

He also demonstrates that on the 15^th May 2003 Wall J, in case of M (Children) said, at paragraph 166 of his judgment,:-

"I entirely agree with the local authority that this is a case which requires not only a supervision order but for one beyond the normal length of twelve months. In all these circumstances, I come to the view that the proper way of dealing with this case now is for there to be a residence order in the father's favour, to take effect at a date to be agreed between the father and local authority when the interim care order will be discharged and for there to be a supervision order to the local authority for a period of two years."

15. However Mr Hayden accepts that in Re: M the court's jurisdiction to make a two year order was not debated.
16. Mr Hayden accepts that he cannot circumvent the clear words of paragraph 6(1). He relies upon the absence of any restriction on the making of the application to extend. Thus he submits that if the supervisor applies for an extension immediately after the judge has made a supervision order that complies with paragraph 6(1) the court can immediately extend it for up to two further years under the provisions of paragraph 6(3) and (4).
17. In preferring the submissions of Miss Hamilton I recognise that her construction does not banish all difficulties. However it is clearly the preferable construction given the clear Parliamentary intention to reform the previous law. I would also support the approach adopted by Butler-Sloss LJ in the passage cited above. Less impressive, but still to be respected is the interpretation advanced in paragraph 3.96 of the Children Act 1989 Guidance and Regulations Volume 1 cited by Miss Hamilton.
18. In my judgment Mr Hayden's solution amounts to am impermissible circumvention of the plain language of paragraph 6(1). The artificiality of an almost immediate application for the extension of the basic order is self evident. The outcome would be the frustration of the clear legislative intention to reform the pre-existing law which had expressly granted jurisdiction to impose a supervision order of three year duration.
19. The difficulties that remain on an adoption of Miss Hamilton's construction must be recognised. If the court in initiating supervision may not look beyond twelve months a jurisdiction to impose a two year extension appears illogical, although this is clearly permitted by paragraph 6(4). Then if an application to extend cannot be made immediately or shortly after the making of the original order when can it first be issued? Such difficulties stem from the absence of any date by which an application to extend must be made or any date before which such an application may not be made. The absence of such a provision seems particularly surprising given that Part II dealing with supervision orders is immediately followed by Part III dealing with education supervision orders. Paragraph 15 deals with the duration of such orders. Amongst its detailed provisions states in sub-paragraph (3) that an extension application "may not be made earlier than three months before the date on which the order would otherwise expire".

Guidance.

20. I would fill the void in paragraph 6 by suggesting a like practice in relation to supervision orders. Clearly before any extension is sought the need for and the acceptance of extension will be canvassed in correspondence. That exploration will reveal whether the extension is consensual and, if not, the extent of the dispute. The issue of any necessary application should not be delayed so as to imperil the local authority's imperative need for a determination before the expiration of the current order. I say imperative because once the order has expired the applicant would be compelled to prove and the court to determine the Section 31 threshold since the application would have become not an application for extension but an application for a new order.
21. In the great majority of cases the listing and determination of an extension application will not much burden the court. The determination will be discretionary and the factors relevant to the exercise of that discretion are unlikely to be either extensive or complex.
22. In summary I would doubt the need for any application to extend a supervision order of twelve months duration before the last quarter of its first life. How well within that quarter the application should sensibly be issued depends upon the facts of each case, that is to say the extent of the issues raised by the application, and the ascertainable capacity of the relevant court.
23. I accept that the practice that I suggest lacks the pragmatic appeal of that adopted by HHJ Hunt. But that appeal derives in part from the fact that in this case, the risk to be safeguarded lies outside the parental home. The order is not to be seen as intrusive or threatening. In the commoner case where the parent's shortcomings require the imposition of a supervision order the legislative requirement for the court to review the continuing need for the order becomes apparent.

Post Script.

24. At the conclusion of the argument we requested counsel research evidence as to the genesis of Paragraph 6 in Part II of Schedule to the Act. We are grateful for the subsequent written submissions of counsel. Mr Hayden draws attention to the second report of the Social Services Committee on the Children Bill ordered by the House of Commons to be printed 1^st February 1989, paragraph 9 of which deals with Supervision Orders. Miss Hamilton has pursued a longer trail. She commences with the report in September 1985 of the working party established in July 1984 by the DHSS to undertake a full review to aid the production of a clearer body of law. Paragraph 18.26 of the Review states:-

"Nevertheless, there are several suggestions which we think are worthy of serious consideration. The Matrimonial Causes Committee has already recommended that normal practise should be to make orders for a defined period. Although it is always open to the supervisor to apply for discharge of an order and it is important to maintain the court's power to tailor its order to the needs of the individual child, it would be helpful to provide that orders shall last for a set period of say one year unless the court specifies a shorter or longer term, but with power to extend or curtail it at a later date."

25. Indeed the Report of the Matrimonial Causes Committee, chaired by Booth J had been presented to the Lord Chancellor in July 1985 and at 4.139 had contained the following recommendation: -

"One point which emerges from the response to our Paper is that supervision orders may be more effective if made for a defined period. Fixed term orders introduce a sense of purpose which may otherwise be lacking, whilst long-term supervision tends to undermine the parents' position in relation to their children. We therefore recommend as a matter of practise that supervision orders should normally be made for a defined period. Where the court makes such an order it is open to the supervising officer or the parties to apply for the period to be extended if it is thought that this would be in the child's interests."

26. In 1984 the Law Commission undertook its review of Childcare Law. It published four working papers for consultation. One paper, entitled "Supervision and Interim Orders in Custody Proceedings" dealt with duration of Supervision Orders in paragraph 3.41 in the following terms:-

"A general practise of fixing the duration of supervision orders would seem helpful. Time-limits could also assist in allocating resources to the most needy cases and remove the burden of 'inert' orders on hard pressed local authorities. We propose that supervision orders should be limited in the first instance to one year unless the court specifies a shorter or longer period."

27. The Law Commission published its report "Family Law Review of Child Law Guardianship and Custody" in July 1988. Attached to the report was the Draft Children Bill. In relation to Supervision Orders paragraph 5.17 of the report stated:-

"Orders should last for one year in the first instance, but may be extended on the supervisor's application. Similarly, they may be discharged on the application of the supervisor, child or responsible person."

28. In Part III of the draft Bill appears:-

"6.-(1) Subject to sub paragraph (2) and section 23(2), a supervision order shall cease to have effect at the end of the period of one year beginning with the date on which it was made

(2) Where the supervisor applies to the court to extend, or further extend, a supervision order the court may extend the order for such period as it may specify.

(3) A supervision order may not be extended so as to run beyond the end of the period of three years beginning with the date on which it was made."

29. The research of Miss Hamilton and Mr Switalski, for which I am particularly grateful, reveals that there was no discussion of the duration of Supervision Orders during the House of Commons debates in April and October 1989.
30. The material with which we have subsequently provided only reinforces the conclusions which I had reached before its arrival.

Lady Justice Arden DBE:

31. I agree.

Lord Justice Hughes:

32. I also agree.