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URL: http://www.bailii.org/ew/cases/EWFC/OJ/2016/B90.html
Cite as: [2016] EWFC B90
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IN THE FAMILY COURT SITTING AT LEICESTER
CASE No: LE15CO1060
Before His Honour Judge Bellamy
(judgment handed down on 16 November 2016)
Re FC (A Child: Care or Supervision Order)
Olivia Magennis for the local authority
Jane Bacon for the child
The parents appeared in person
This judgment was delivered in private. The judge has given leave for it to be reported on the strict understanding that (irrespective of what is contained in the judgment) in any report no person other than the advocates or the solicitors instructing them and any other persons identified by name in the judgment itself may be identified by name or location and that in particular the anonymity of the child and the adult members of her family must be strictly preserved.
JUDGE BELLAMY:
1. On 9 th October 2015 Leicester City Council ('the local authority') applied to the court for a care order in respect of FC, a girl now 16 months. The proceedings came on for final hearing before District Judge Stamenkovich on 23 rd August 2016. Both parents accepted that the threshold set by s.31(2) of the Children Act 1989 was satisfied. The local authority's final care plan proposed that FC should remain in the care of her parents and that there should be a supervision order for a period of 12 months. Both parents agreed with that plan. The Children's Guardian ('the guardian') did not agree. Although she supported the plan for FC to remain in the care of her parents, in her opinion the placement should be underpinned by a final care order.
2. With the agreement of all parties, the final hearing proceeded on submissions without hearing oral evidence. In her judgment the District Judge concluded that it was appropriate to make a final care order. The local authority appeals against that decision. Both parents support the local authority. The guardian opposes the appeal. I heard the appeal on 12 th October. I reserved judgment.
Background history
3. The mother gave birth to her first child, A, in 2001 and her second child, B, in 2002. By the time B was born care proceedings were already underway in respect of A. Proceedings were issued in respect of B. Final care orders and freeing orders were made in respect of both children.
4. The mother began a new relationship. In 2004 she gave birth to her third child, C. The local authority issued care proceedings. In 2005 a final care order and a freeing order were made in respect of C.
5. In the course of those proceedings the mother was assessed by a psychologist. Although his report is not before me, in his first statement the allocated social worker indicates the psychologist's views to have been as follows:
'The mother has been diagnosed with learning difficulties and a psychological assessment undertaken by Dr P in 2005 reported that the mother will need short, medium and long term support to provide "good enough" parenting to any child in her care. The forensic psychology report...summarised that her IQ was very low and she has significant difficulties in working memory and processing speed...The report highlighted that the mother had a poor understanding of the care and support of children emotionally and physically...The psychologist was of the opinion that in order for the mother to offer good enough parenting, she would need significant and ongoing support from social services until her child was at least 16yrs of age.'
6. The mother began another relationship. She gave birth to her fourth child D in 2007. D was made the subject of a child protection plan. A parenting assessment of D's father concluded that he was able to provide good enough care for D. A residence order was made in his favour. The mother was allowed fortnightly supervised contact at a contact centre. Contact is no longer taking place.
7. The mother then entered into yet another relationship. She became pregnant with her fifth child. E was born in 2011. The mother agreed to him being accommodated under s.20 of the Children Act 1989. E was placed in foster care. The local authority issued care proceedings. It appears to be the case that a final care order was made on the basis that E would be rehabilitated to the care of his mother.
8. In 2011 the mother began a relationship with LM. The local authority had concerns about that relationship. LM has an extensive criminal history. He has abused drugs and alcohol. It was known that there had been domestic violence in his previous relationships. The mother assured the local authority that the relationship with LM had ended. It later came to the notice of the local authority that the relationship was ongoing. That led to the discontinuation of the rehabilitation plan for E. In 2013 the local authority issued an application for, and subsequently obtained, a placement order.
9. During the course of the care proceedings relating to E the mother was charged with an offence of assault occasioning actual bodily harm. The victim was a vulnerable male adult. The proceedings were dealt with at Leicester Crown Court. The mother was sentenced to a suspended term of imprisonment.
10. In February 2015 the local authority became aware that the mother was pregnant with LM's child. As a result of historic concerns about the mother's vulnerability and the father's past history the local authority convened an initial child protection conference. The allocated social worker records that,
'a multi-agency decision was made for [the unborn child] to be discharged into the care of [the parents] after birth. [The parents] were to continue to receive high levels of support from professionals...to be able to parent FC appropriately.'
11. At birth FC was placed with her parents. It was not until FC was 11 weeks old that the local authority issued these proceedings. It is not clear from the papers before me what it was that led to the local authority issuing the application at that particular point rather than, as may have been expected given the background history, at birth.
12. In the allocated social worker's initial statement she says that,
'2.1.4 Leicester City Council are seeking an Interim order to immediately separate FC from her parents' care due to concern that FC is at risk of neglect should she remain in the care of her parents...
2.1.13 Leicester City Council is seeking an Interim Care Order in respect of FC. It is my professional view that at this stage no other order will do to sufficiently protect her...
2.1.14 A Supervision Order would not ensure a safe care plan in respect of FC as it does not enable the Local Authority to share parental responsibility for the child. This type of order is limited and would only give the Local Authority the grounds to advice (sic), assist and befriend, therefore it is my view that [that would] not be the most appropriate order as the Local Authority would not be able to make decisions in the best interests of her child.'
13. Notwithstanding the local authority's position as it apparently then was, FC has remained in the care of her birth parents since birth and is thriving. She has not been the subject of an interim care order. The guardian notes in her report that the parents have cooperated with professionals and with the assessment process.
Psychological evidence
14. Although there has not been an updated psychological assessment of the mother within these proceedings, there has been a psychological assessment of the father. He has been assessed by Dr Melissa Jackaman, a chartered clinical psychologist.
15. Dr Jackaman was asked to advise on the father's mental health. She says,
'In my opinion the father would not neatly fit into any one diagnostic category in terms of his psychological functioning. Whilst I do not think he has any significant mental health problems, the issues pertain more to the characteristics of his personality...The key features of the father's personality are the need to be in control, difficulty sharing his emotions with others, and a real disconnection between his lived experiences and his emotional responses to them...I think he does accept that he probably needs to engage in therapy to address a lot of these issues and unmet emotional needs which stem from his early childhood, but it remains to be seen whether he has the motivation to actually engage with services and remain engaged for long enough to work through some of these issues.'
16. Dr Jackaman was also asked for her opinion about risk. She said that,
'The concerns relate...to the personality characteristics mentioned above and his actual capacity to engage in a healthy adult relationship, to maintain his own emotional health without resorting to drug and alcohol abuse, and to provide a stable, safe and nurturing environment for a child. I think the latter in particular would be difficult for him because his own emotional needs remain unmet...I think his capacity to be emotionally in tune with others, including a very dependent child, must be questioned. Whilst I think he definitely wants to do the right thing by his daughter, I am not convinced that he has the psychological characteristics which would allow him to be a safe, stable and emotionally available parent.'
17. Next, Dr Jackaman was asked to advise whether there is a need for the father to undergo therapy or treatment. She replied,
'The reality is that he probably needs to engage in work with a skilled therapist who can look at these underlying personality issues and start to address these in a psychotherapeutic manner. The difficulty is that the father probably does not meet the diagnostic criteria for any one personality disorder as such although I do think it is the Personality Disorder Services which are most likely to be able to have the skill level required to work with him...In reality he probably needs twelve to eighteen months of psychotherapy with a skilled psychologist or therapist.'
18. A copy of Dr Jackaman's report was made available to the father's GP. By letter dated 3 rd May he indicated that in order to access the recommended therapy the father would need to be referred to a psychiatrist.
PAMs assessment
19. The Ward Andrews Centre for Children & Their Families undertook a PAMs (Parenting Assessment Manual) assessment of both parents. It is appropriate to note two of the three questions put to the assessor and her responses.
20. Firstly, the assessor was asked to comment upon whether with the support of family members or professionals the parents could be able to care for FC to a 'good enough' standard throughout her childhood, whether jointly or separately. The assessor responded,
'We have undertaken a PAMs assessment of both parents and whilst each has their individual strength, they offer a better parenting option when parenting together, so would support them parenting together.
The father is the weaker parent as he has a more limited practical knowledge, but also emotional issues that limit his capacity, not least his perception of his own self-esteem, but also his depression. We would not support him parenting alone.
The mother is a good practical parent with a good level of knowledge, but she is likely to struggle as FC gets older and more challenging. The mother is also vulnerable to being overtly influenced by strong external support, which if negative will reduce her capacity and may involve her in dangerous activity such as resorting to criminal interests. However, we are clear this would be by omission not commission.'
21. The assessor was also asked to comment upon Dr Jackaman's risk assessment of the father and to indicate whether that had any impact upon her conclusions. In response, the assessor says,
'We have considered Dr Jackaman's report and note her findings. Whilst we support her recommendations we do not suggest separation of parent from child, as to do so at this time would mean terminating FC's placement with her mother, which we say is currently meeting her needs. It is telling that even with the reduced monitoring of the family home the couple's progress appears to be maintained and we note there have not been any police call outs for some time.
We note Dr Jackaman's concerns that this work may take up to 18 months for the father to complete, we also note that some change would be evidence (sic) after 6 months. The determining factor will be accessing such therapeutic work and the timeframe and then for work to start and progress to be monitored, as we see potential for the father to make changes and he certainly states he is committed. At which stage this should be followed by the couple attending RELATE together. If separation was to then follow this would be devastating for the mother and therefore assessment of the child impact at that time would be needed.'
The local authority's final plans
22. The final hearing was listed to take place on 14 th June. It was not effective. The local authority was late in filing its final plans.
23. I use the word 'plans' in the plural because on 17 th June the local authority filed two plans, a final care plan and a final supervision plan. Save for the outcome proposed - a care order in the first and a supervision order in the other - there is scarcely any difference between the plans. So far as concerns the support proposed, the two plans are identical. In other words, the local authority proposed to put in the same level of support whether the court should make a final care order or a final supervision order.
24. The detail of the support proposed is to be found in paragraph 4.1.1 of the plans under the heading, 'Other services to be provided to parents and other family members'. This section of the plans begins with a short opening statement:
'The family will be provided with an intensive support package as outlined below. It is appreciated that mother is due to give [birth] in September 2016 and the plan needs to be reviewed at that time. The Local Authority will ensure that the work remains available to the parents during and after the birth of the new baby.'
25. There then follows very detailed plans for the support that is to be provided for this family. This includes:
(a) An initial assessment of the father by a consultant psychiatrist who works in both the private sector and the NHS, who can identify a suitable provider for the work identified by Dr Jackaman. The local authority promised to reassess its position in respect of funding treatment/therapy.
(b) Ward Andrews are to discuss with the Jenkins Centre whether the mother is a suitable candidate for undertaking the Freedom Project.
(c) The father has been allocated a domestic violence worker from the Jenkins Centre who is to undertake 12 sessions of work with him. A partner-support worker has also been allocated for the mother.
(d) Ward Andrews are to undertake two pieces of work with the parents, the first to be 'parenting work' and the second to be 'pattern changing work'.
(e) A referral has been made to Early Help for the mother to have help from a Family Support Worker once a week.
(f) A referral has been made to the Leicester Recovery Partnership to enable the father to access their drop-in service.
(g) The mother is to be re-referred to adult social care.
(h) A letter has been written in support of the mother's application for alternative housing more appropriate to the needs of a family of four.
(i) The parents have been to Citizen's Advice Bureau to have their benefits reviewed. The local authority will work with the parents to ensure that they are in receipt of all of the benefits they should be receiving.
(j) A referral will be made to RELATE.
(k) A new social worker will be allocated to FC. This will be a permanent social worker rather than an agency worker. The worker will visit the parents once every fifteen days.
Psychiatric assessment
26. As promised in its support plan the local authority arranged for the father to be seen by a consultant psychiatrist, Dr Amol Vaze. Dr Vaze saw the father on 5 th August. He was provided with copies of the report of Dr Jackaman and a transcript of the experts' meeting. He did not examine the father's medical records.
27. Dr Vaze states that it would be almost impossible at this point in time to say anything conclusively and accurately about the father's mental health or his diagnosis. The reason for this is,
'because of his current excessive consumption of caffeine. In fact, from the age of twelve years, but more importantly from the age of eighteen years, he has excessively abused Cannabis, alcohol, energy drinks, legal highs and caffeine. Hence effectively throughout his life, he has never been completely free of any drugs and has also never had minimal use of drugs or alcohol either.'
28. Dr Vaze goes on to say that despite the effects of these drugs, 'considering his lifelong emotional experiences, the father does not appear to have a classical presentation of or fulfil the criteria for a specific Personality Disorder'. Dr Vaze disagreed with Dr Jackaman about the father's treatment needs. He says,
'Firstly, in my opinion, although the father does have trust and attachment issues, he clearly does not have a severe Personality Disorder of any type. Additionally, his current emotional and mental health difficulties are in fact not severe enough for him to require or fulfil the criteria for any specialist psychotherapy in the NHS, including the Personality Disorder Service. The same will be true for the three other types of psychological therapies within Secondary Care, ie: a Clinical Psychologist based within Community Mental Health Teams, the Psychodynamic Psychotherapy Department and Cognitive Behavioural Therapy Department...
The main intervention which I would advise is for the father to gradually attempt to reduce and stop his high caffeine intake. This would allow him to finally understand what his emotional state is like, as it is quite likely that the high levels of caffeine are in fact confounding his emotional state. If he does reduce or stop his caffeine use, he would obviously need to be reassessed and depending on what his symptoms are he can be signposted. Again, unfortunately the local NHS Services for substance misuse namely Turning Point, might not accept a referral for caffeine abuse or addiction but it is worth trying to refer him there. Apart from this, I am not sure that there is a significant need for any other mental health interventions at the moment.'
The Children's Guardian
29. The Children's Guardian is Lynne Nelson. Mrs Nelson is a very experienced and highly respected guardian. She had prepared one report in readiness for the final hearing. She did not give oral evidence at the final hearing which, as I noted earlier, proceeded on submissions. The guardian's position throughout has been that whilst she supports the placement with parents she is firmly of the opinion that that should be achieved under a full care order.
30. The guardian makes the point that as FC becomes more mobile and more challenging both parents will require ongoing support to manage her changing needs. This is particularly important because the mother has never parented a child beyond their early years and the father has no experience at all of parenting a child.
31. At the time of the final hearing the mother was pregnant. JC was born a month after the final hearing was concluded. In her report, the guardian said that,
'9. Added to the risks of the couple as individuals and together is the mother's current pregnancy with the couple's second daughter due in September 2016. I know that the Court is not concerned with the expected baby, but the impact of a new baby on this fragile family will in my opinion bring a level of pressure and stress which both parents may find difficult to deal with.'
32. The guardian says that the issue in this case is not the parents' ability to provide physical care for a child of FC's age:
'22. ...this was not the issue in previous proceedings. It is the emotional harm and neglect which FC will be at risk from if the parents are not able to address their individual issues and relationship.'
33. She went on to say
'23. I am clear that both parents love their daughter and her development and presentation are testament to the love and care they offer her. I am concerned that in order to support this family to maintain FC's placement at home a significant package of support is required and is likely to be needed long term...
26. Additionally I am concerned that the Local Authority in their Supervision Plan are not committed to offering to actively arrange or finance anything other than a referral to the Freedom Project and six sessions of Relate. The Supervision plan notes how the parents will be 'supported/encouraged' to attend various groups, housing needs etc but in my opinion this is not good enough and they need workers to assist them. The Family Group Conference has yet to take place and this has caused a delay in identifying support for the family.
27. At the time when the Local authority intends to finalise proceedings none of the work which has been identified has been undertaken or arranged. The work the father needs to do will, once a therapist has been identified, take at least 12 months. The couple are expecting a baby in September; they need to be re-housed and will have the practical issue of caring for two children as well as addressing their own needs. FC is a vulnerable child and in my opinion, given the history of the case, needs to be afforded as much protection as possible.
28. I do not believe the services this family need will be available under the auspices of a Supervision Order. A Supervision Order will allow the Local Authority to assist and befriend FC. The family need financial support, which would not be available with a Supervision Order, the reviews under such an order would be in line with a child in need plan and not afford the structure, priority and longevity which is available under a care order...
31. The Local Authority and the parents agree that if the threshold is crossed that a Supervision Order is the most appropriate and proportionate order to support the family. As FC's Children's Guardian I do not believe the support, monitoring and resources which will be available under the auspices of a Supervision Order are either adequate or robust enough to ensure FC's welfare needs are met.'
34. In readiness for the adjourned final hearing on 23 rd August a position statement was filed on behalf of the guardian. The guardian stood by her earlier opinion that FC should be made the subject of a final care order. Her position was explained as follows:
'The Guardian's recommendation is predicated firstly in a genuine desire that this placement continues to work and that FC can remain with her family throughout her minority, and in addition that the local authority continue to provide support for the parents and child, monitor progress, continually re-evaluate the necessary steps to be taken to ensure FC's continued safety and well-being in light of the professional opinions on future risk and the background facts to this case.'
The District Judge's judgment
35. In her judgment the District Judge notes that she was the judge allocated to deal with the placement proceedings in 2013 relating to the mother's fifth child. When she came to this case she therefore already had a detailed knowledge of the background history.
36. The District Judge acknowledged the progress the mother has made since 2013:
'3. In relation to the proceedings in 2013 it was quite clear that the mother had parenting skills, but the concern of the Local Authority at that stage was her association with risky adults due to her own vulnerabilities in putting the child in the way of harm. The risk at that stage was assessed by professionals to be too great and that was accepted by the Court.
4. Ironically the person to whom the mother went and was deceived by during the last Court proceedings is indeed now the father of the child before the Court today and her main support. It was the involvement of LM in the last Court proceedings, and the mother's denial of a relationship with him, that ultimately led to the Court's view of this risk. This case shows however that parents can indeed turn things around.'
37. The District Judge goes on to note that notwithstanding the local authority's concerns historically, FC was placed with her parents at birth. She has remained living with her parents throughout the proceedings under the terms of a written agreement between themselves and the local authority. FC has thrived.
38. The application was originally listed for an issues resolution hearing ('IRH') on 22 nd April. The District Judge notes that it was at that stage that the local authority's plan changed from seeking a care order to seeking a supervision order. The guardian's view then, as now, was that a care order would be more appropriate.
39. The case came on for final hearing before the District Judge on 14 th June. The District Judge records that at that hearing 'there was no care plan prepared by the Local Authority and the supervision plan which they relied upon lacked any specific detail'. The care and supervision plans to which I referred earlier were not filed until three days after that hearing.
40. At the final hearing on 23 rd August the parties' positions remained as they had been at the IRH. The District Judge records that the basis of the guardian's position was that a care order was necessary because of the level of risk and 'for the protection of FC against future risk'. She records that the position of the other parties was that a supervision order would provide 'the least interventionist approach' and that they rejected the guardian's proposal, making the point that 'the Court must have good reasons for imposing such a draconian order on a Local Authority that does not seek it'.
41. Before the District Judge it was accepted that there was a need for an order, the only issue being the nature of the order. It was also accepted by the local authority that it was open to the court to make a care order even though that would be 'a more draconian order than they seek'.
42. The District Judge acknowledged the need for the order made to be one that is proportionate:
'24. It is also accepted by the Court that in having in mind Article 8 of the European convention on Human Rights under the Human Rights Act that the Court should always adopt the least interventionist approach when considering the options placed before it in order to protect the welfare of a child, acknowledging as it does the parties' and particularly the child's right to a family life.
52 ...proportionality is essential in a case such as this and the Court should only make such orders that are proportionate to the risks to the child. However, the protection of the child is the decisive factor.'
43. The District Judge went on to undertake a careful welfare checklist analysis pursuant to s.1(3) of the Children Act 1989. It is appropriate for me to refer to the District Judge's analysis of two of the factors in the checklist.
44. Section 1(3)(e) requires the court to take account of 'any harm which [the child] has suffered or is at risk of suffering'. The District Judge notes that,
'37. The Local Authority accept in their own evidence at D55 as part of the care plan that without their involvement FC will be exposed to the risk of significant harm. They envisage in their own earlier evidence long term intervention and a high level of support for the duration of FC's childhood. That is at C23. Otherwise there will be a risk of significant harm in the long term. That was the Local Authority's original case.'
45. With respect to s.1(3)(f), the parents' capacity to meet FC's needs, the District Judge notes the local authority's acceptance that these parents 'need significant input to remain capable of meeting FC's needs'. She notes the observation in the PAMs assessment that 'As FC gets older she is likely to challenge both her parents and this is a time when the couple will be tested as to their resilience'. She notes Dr Jackaman's opinion that in order to be an emotionally available parent the father needs 'considerable input' and that therapeutic input was needed for between 12 and 18 months. The District Judge also noted that at the experts' meeting the experts indicated a concern 'as to whether this couple can manage FC's care, their own needs and their new-born baby...'
46. Having noted the package of measures set out in the local authority's support plan the District Judge observes that the parents appear to lack a local support network. Although grandparents have been assessed positively as alternative carers, they live in the North East and are not on hand to provide support on a day to day basis.
47. It is clear that the District Judge was troubled by the effort that had been required to persuade the local authority to provide the support plan outlined above. The District Judge noted that at that stage 'there was no care plan prepared by the local authority and the supervision plan which they relied upon lacked any specific detail'. She later went on to note that,
'55. ...The Local Authority now accepts the work that these parents need, but only after a great deal of effort has been put in both by the experts and by the professionals on day one of the hearing on the 14 th June. This is a significant plan, and needs Local Authority support, the Local Authority itself recognising [that] without it there are significant risks to FC for the reasons I have already given.'
48. The District Judge also noted the long timescale required for the work set out in the support plan to be completed:
'56 ...The work that is set out...is clearly demanding. Notwithstanding that, mum and dad have complied and have co-operated to date but new demands are around the corner. The plan itself in terms of help and support is likely to take us beyond 12 months. Long term intervention is envisaged and has always been envisaged. The Local Authority say that is not a problem because the court can extend a supervision order if needs be...'
49. She went on to say:
'58. Looking then at FC's protection: is the court satisfied that the likelihood or risk of future harm is such that a more draconian order is required in this case than that sought by the Local Authority? ...
59. ...the Court cannot ignore the experts' reports of the risks which they clearly set out and they are reiterated in the Guardian's report. They are risks which in the court's view are real and significant. That indeed was the Local Authority's original case without long term intervention.'
50. Against that background the District Judge concluded that,
'60. In my judgment, therefore, on balance, finely balanced as it is, in the light of the progress made to date, FC's protection does, in my judgment require the imposition of a care order in accordance with the care plan envisaged...'
The law
51. I deal first with the approach the court should take when dealing with an appeal such as this. The approach is set out in Part 30 of the Family Procedure Rules 2010. As this is an appeal against a District Judge, permission to appeal is required - rule 30.3(1)(a). In this case District Judge Stamenkovich granted the local authority permission to appeal.
52. Rule 30.12 provides that:
'(1) Every appeal will be limited to a review of the decision of the lower court unless -
(a) an enactment or practice direction makes different provision for a particular category of appeal; or
(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.
(2) Unless it orders otherwise, the appeal court will not receive -
(a) oral evidence; or
(b) evidence which was not before the lower court.
(3) The appeal court will allow an appeal where the decision of the lower court was -
(a) wrong; or
(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.'
53. In this case the District Judge was making a welfare decision. Such decisions are essentially discretionary. It is in the nature of a discretionary decision that on the same set of facts different judges may come to different conclusions. In G v G [1985] 1 WLR 647, a case involving a dispute between parents as to which of them should have custody of the children, the House of Lords considered the correct approach to an appeal against an order made by the first instance judge in the exercise of her discretion. Lord Fraser said that (pp. 651 and 652):
'It is comparatively seldom that the Court of Appeal, even if it would itself have preferred a different answer, can say that the judge's decision was wrong, and unless it can say so, it will leave his decision undisturbed...the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which the court of appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible.'
54. In In re B (A Minor)(Adoption: Natural Parent) [2001] UKHL 70, Lord Nicholls made a similar point saying (§19) that,
'Cases relating to the welfare of children tend to be towards the edge of the spectrum where an appellate court is particularly reluctant to interfere with the judge's decision.'
55. In the case with which I am concerned the District Judge acknowledged that it would only be appropriate to make a care order instead of a supervision order if in all the circumstances it was proportionate to do so. In In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33 there was disagreement between the Supreme Court Justices about whether, on any appeal involving a Convention right, an appellate domestic court should consider again the issue of proportionality for itself. The majority held that it should not. Lord Neuberger said that (§92):
'...where convention questions such as proportionality are being considered on an appeal, I consider that, if after reviewing the trial judge's decision, an appeal court considers that he was wrong, then the appeal should be allowed. Thus, a finding that he was wrong is a sufficient condition for allowing an appeal against the trial judge's conclusion on proportionality, and, indeed, it is a necessary condition...'
56. In this case the task I am faced with is to consider whether the District Judge's decision was 'wrong'. I do not need to make a fresh determination of the question whether in all the circumstances a care order was a proportionate outcome. That should be part and parcel of my decision about whether her decision was 'wrong'.
57. I turn next to the substance of the appeal. Given that all parties were agreed that FC should remain at home in the care of her parents, should the District Judge have made a supervision order, as proposed by the local authority and the parents, or on the facts of this case was it open to her to make a care order?
58. That it is permissible to make a care order even when leaving a child at home in the care of her parents is not in doubt. In Re T (A Minor)(Care or Supervision Order [1994] 1 FLR 103, in giving the leading judgment in the Court of Appeal, Bracewell J said that,
'The Children Act 1989, s 23(4), (5) and the Placement of Children with Parents etc Regulations 1991 envisage that local authorities may place children with their parents even though the local authority has obtained a care order. The 1989 Act also envisages that children may have remained at home pending court proceedings and may remain there after the granting of a care order.
The placement under the regulations is part of the overall planning for children. Such an arrangement is not inconsistent with partnership between parents and the local authority, because although the local authority achieve parental responsibility by reason of the care order the parents do not lose their parental responsibility which is merely limited in scope.
The Children Act 1989 has not, in my judgment, altered the previous law as set out in M v Westminster City Council [1985] FLR 325. In that case the Court of Appeal did not consider it wrong to make a care order where the local authority intended to leave the child in the day-to-day care of the parents. Nor in that case were the justices to be criticised for deciding in the exercise of their discretion to make a care order rather than a supervision order. The making of any order under the 1989 Act and in accordance with s 1 of that Act is an exercise by the court of its judicial discretion. Therefore the principle in G v G applies, and this court can only intervene if the judge was plainly wrong.'
59. Although the 1991 Regulations have now been replaced by the Care Planning, Placement and Case Review (England) Regulations 2010 the possibility of making a care order whilst leaving the child at home in the care of her parents remains open. However, although it is the case that the court has the power to make a care order in respect of a child who remains at home with her parents, the court should be cautious about making such an order if the local authority itself is not seeking a care order. In Oxfordshire County Council v L (Care or Supervision Order) [1998] 1 FLR 70, Hale J (as she then was) said that,
'... s 31(5) of the Children Act does, of course, allow the court to make an order other than that for which the local authority ask. If the local authority ask for a supervision order, the court may make a care order: if the local authority ask for a care order, the court may make a supervision order. It is accepted, however, by the guardian ad litem that there must in general be cogent and strong reasons to force upon the local authority a more Draconian order than that for which they have asked. I shall therefore look at this case in that light.'
60. In a number of authorities, when considering whether to make a care order instead of a supervision order in respect of a child who remains in the care of her parents, the court has compared and contrasted the nature of a supervision order and a care order.
Supervision order
61. In Re T (A Minor)(Care or Supervision Order [1994] 1 FLR 103, Bracewell stated that:
'The nature of a supervision order is to help and assist a 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 supervised child. The directions which 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 these parents who continue, to date, 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.'
Care order
62. In Oxfordshire County Council v L (Care or Supervision Order), Hale J stated that there are a number of reasons which might be given for preferring a care order to a supervision order:
'The first is that a care order allows the local authority to remove the children from home. This has two aspects: the first is that it allows the local authority to remove the children without any judicial sanction in an emergency. The second is that it then allows the local authority to make long-term plans for those children, and to place them elsewhere on a long-term basis, again without any judicial authority. The only way in which this can be challenged on behalf of the children or the parents is by an application for the discharge of the care order...
A second reason for preferring a care order to a supervision order is that it enables the local authority to share parental responsibility with the parents.... [T]he fact that it is contemplated that help will continue for a long period - albeit of a various nature - does not of itself mean that a care order is necessary. A care order would be warranted where there was reason to suppose that the parents would not accept the advice and guidance of the local authority as to the way in which they should be meeting their parental responsibilities. In that situation the parents could not be allowed to be the only people with those responsibilities.'
63. As for the first of those two reasons it is important to bear in mind that this decision was given in January 2001, just three months after the Human Rights Act 1998 had come into force. Over the course of the last fifteen years there have been a number of important decisions relating to the approach local authorities must take when changing a care plan for a child who is the subject of a final care order and to the steps that must be taken by a local authority wishing to remove a child who is living with her parents under the auspices of a final care order. The law in this area was reviewed by Baker J in A Father v SBC & Ors [2014] EWFC 6. Baker J summed up the position thus:
35. While this process is being carried out, the child should remain at home under the care order, unless his safety and welfare requires that he be removed immediately. This is the appropriate test when deciding whether the child should be removed under an interim care order, pending determination of an application under s.31 of the Children Act: Re L-A (Children) [2009] EWCA Civ 822. The same test should also apply when a local authority's decision to remove a child placed at home under a care order has led to an application by the parents to discharge the order and the court has to decide whether the child should be removed pending determination of the discharge application. As set out above, under s.33(4) of the 1989, the local authority may not exercise its powers under a care order to determine how a parent may exercise his or her parental responsibility for the child unless satisfied it is necessary to do so to safeguard or promote the child's welfare. For a local authority to remove a child in circumstances where its welfare did not require it would be manifestly unlawful and an unjustifiable interference with the family's Article 8 rights.
64. In Re O (A Child) [2001] 1 FLR 923, Hale LJ (as she had by then become) repeated the two differences between a supervision order and a care order identified in Oxfordshire County Council v L (Care or Supervision Order) and added a third. The third point relates to the fact that whereas a care order can continue until a child reaches the age of 18 a supervision order only lasts for 12 months and can only be extended twice. The maximum length of a supervision order is, therefore, 3 years. Hale LJ said (§26),
'The third difference is one of timing. Mr Forbes [counsel for the guardian] 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 thought appropriate to protect the child.'
65. Finally, Hale LJ made an important point concerning proportionality:
'Proportionality, therefore, is the key. It will be the duty of everyone to ensure that, in those cases where a 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. The local authorities must deliver the services that are needed and must secure that other agencies, including the health service, also play their part, and the parents must co-operate fully.'
66. There is a fourth difference between a care order and a supervision order and that is the role of the Independent Reviewing Officer ('IRO'). Section 25A of the Children Act 1989 provides that,
'(1) If a local authority are looking after a child, they must appoint an individual as the independent reviewing officer for that child's case.'
Any child who is the subject of a care order, even if placed in the care of her parents, is a looked after child for whom an IRO must be appointed - s.22(1). It follows, therefore, that if FC remains in the care of her parents under a care order an IRO must be appointed. If she is placed with her parents under a supervision order an IRO will not be appointed.
67. What, then, is the role of an IRO? Section 25B(1) provides that the IRO must,
'(a) monitor the performance by the local authority of their functions in relation to the child's case;
(b) participate, in accordance with regulations made by the appropriate national authority, in any review of the child's case;
(c) ensure that any ascertained wishes and feelings of the child concerning the case are given due consideration by the local authority;
(d) perform any other function which is prescribed in regulations made by the appropriate national authority.'
68. That the involvement of an IRO is an important point of difference between a care order and a supervision order was made clear in RW v Neath Port Talbot County Borough Council [2013] EWCA Civ 1227. Ryder LJ noted that,
'51. Children who are the subject of supervision orders are not looked after children (unless they are for some reason provided with accommodation by the local authority under section 22(1)(b) CA 1989). They do not benefit from the duties imposed on local authorities by section 22 or Part II of Schedule 2 of the Act. The regulatory scheme for care planning, placement and review does not apply to them. In the absence of supervision order regulations, there is no equivalent regulatory safety net for the exercise of the local authority functions in relation to them including those exercised by "Independent Reviewing Officers" (IROs). By section 35(1)(b) CA 1989 the duty that is imposed upon the supervisor is "to take such steps as are reasonably necessary to give effect to the order".
52. The general and specific duties which apply to children who are the subject of supervision orders are those which also apply to "children in need" by reason of the broad definition of the circumstances in which "a child should be taken to be in need" to be found in section 17(10) CA 1989. They are contained in section 17 and Part I of Schedule 2 of the Act. They do not encompass the general and specific duties set out in section 22 and Part II of Schedule 2 which are owed to the individual child. The section 17 general duty is a framework duty owed to children in need in the local authority's area that does not result in a mandatory duty to meet the assessed needs of every individual child...
53. In contrast, the arrangements for looked after children including children who are the subject of care orders are set out in regulations. In England the relevant regulations have been consolidated since 1 April 2011 in The Care Planning, Placement and Case Review (England) Regulations 2010 (the 2010 Regulations)...
57. It is now a statutory requirement that an IRO be appointed for each looked after child's case (section 25A CA 1989) and by section 25B the functions of an IRO include monitoring the performance by the local authority of their functions in relation to the child's case and referring the child's case to a Welsh family proceedings officer or an officer of Cafcass where the IRO considers it appropriate to do so for the officer to consider whether steps are necessary to safeguard and promote the welfare of the child, for example by instituting proceedings on behalf of the child (see regulation 45 of the 2010 Regulations for the position in respect of England...
58. By this process there is intended to be scrutiny, due process and change to care plans only where that has been approved within the regulated process. The process includes an obligation on the local authority, so far as is reasonably practicable, to agree the care plan / written arrangements with the child's parents and any other person who has parental responsibility. None of this involves the court. Parliament has provided a scheme for the implementation, review and scrutiny of care plans which is the responsibility of others. A court would only be involved if a new application is issued, for example to discharge the care order or on an application for judicial review or for a remedy under the Human Rights Act 1998.
The grounds of appeal and the parties' submissions
Ground 1
69. The local authority advances three grounds in support of its appeal. Firstly, it contends that:
'The imposition of a care order was an error of law when none of the criteria for the imposition of such an order were satisfied/the Learned Judge failed to give any good or any cogent reason for the imposition of a care order instead of a supervision order:
(a) The Local Authority neither sought, nor did the circumstances of the case justify the Local Authority having the power to remove immediately the child from the parents' care;
(b) The Local Authority did not need to share parental responsibility with the parents;
(c) The circumstances of the case did not warrant the imposition of an order lasting throughout the child's minority.
(d) The judge erred in considering that a care order was the only way to achieve the support the family would need in the long-term.'
70. For the local authority, Miss Olivia Magennis relies in particular upon the judgment of Hale LJ in Re O (A Child) [2001] 1 FLR 923 to which I referred earlier. She submits that the power to remove FC from her parents' care without prior judicial sanction was neither necessary nor appropriate in the circumstances of this case. She notes that in her final analysis the guardian made no reference to the need for the local authority to hold such a power.
71. The guardian had suggested to the court that,
'The [care] order could also record a recital to the effect that if the local authority seeks to change the care plan (and intends to remove FC from her parents' care) that it should notify the parents in writing, giving them time to make any appropriate application to the court.'
Miss Magennis submits that that suggestion 'fatally undermined one of the two bases justifying the imposition of a care order instead of a supervision order'. In her written submissions Miss Magennis goes on to say that,
'The crux of the Local Authority's argument is this: if it were truly a case where the Local Authority needed the power to instantly remove FC from her parents' care and make long-term decisions for FC's placement either within the extended family, or further afield, the Guardian simply would not have mooted the possibility of such a recital, nor would the Court have endorsed it.'
I do not accept that submission. It is in my experience very common for care orders made on the basis of a care plan of placement of the child at home with her parents to contain a recital such as that proposed by the guardian. Indeed, it is clear from the judgment of Baker J in A Father v SBC & Ors [2014] EWFC 6, to which I referred earlier, that it is good practice for such a recital to be included in such orders. The suggestion that the inclusion of such a recital in some way undermines the appropriateness of making a care order is in my judgment without merit.
72. Miss Magennis goes on to submit that the guardian accepted that FC was thriving and did not seek to make out a case for there to be any need for the local authority to share parental responsibility with the parents. There was no evidence before the court that the local authority or FC would benefit from the sharing of parental responsibility. On the contrary, the evidence before the court strongly supported the parents continuing to exercise their parental responsibility appropriately, without any need for the local authority to share parental responsibility. The District Judge gave no reason why it is necessary for the local authority to share parental responsibility.
73. With respect to the difference in duration between a care order and a supervision order, Miss Magennis relies on the judgment of Hale LJ in Re O (A Child) [2001] 1 FLR 923 in support of her submission that the fact that considerable help and advice may be necessary over a long period is not itself a reason for making a care order. She submits that even if the family's need for Local Authority support continued beyond those three years, it cannot be said that a care order is necessary in order to achieve such support. Local authorities can and do provide very significant and wide-ranging support to a very high number of families without any order at all.
74. Miss Magennis submits that it is wrong to make a care order as a means of encouraging a local authority to perform its statutory duties. Even if it were otherwise, by the time of the final hearing there could be no doubt of the local authority's support. The support plan was in progress, all relevant agencies and support structures had been identified and the parents were working cooperatively with those professionals.
75. I noted earlier that the role of the IRO is another important difference between a care order and a supervision order. Neither counsel addressed that issue either in their written or in their oral submissions (though I am told that the point was taken by the guardian's counsel in her skeleton argument before the District Judge). I subsequently invited them to send in supplemental submissions addressing that point, an invitation which both counsel accepted.
76. Miss Magennis submits that just as a care order should not be made as a means of encouraging a local authority to perform its statutory duties, so neither should it be used as a means of securing the services of an IRO to act as a safety net in monitoring the child's case on an ongoing basis. Further, she submits, if it is suggested that the role of the IRO will encourage timely review of the care plan and ensure a speedy application to the court for discharge of the care order such considerations 'would put the cart before the horse'. The fact that an IRO would have been appointed had a care order been made does not obviate the need to consider whether, in all the circumstances of the case, it was appropriate to have imposed a care order in the first place. Miss Magennis submits that the involvement of an IRO would represent another layer of interference in the life of this family and would be disproportionate.
Ground 2
77. Secondly, it is contended in the grounds of appeal that
'The judge erred in the exercise of her discretion by giving too much weight to the risks and/or too little weight to the parents' capability and the protective arrangements that Mother, Father and the Local Authority had agreed.'
78. Miss Magennis submits that the risks associated with father 'were vague, and such risks as might be posed to FC were gradual in nature'. At present, given FC's age, the mother does not present any risks to her. As FC's parenting needs change as she gets older, there is support available to the mother to guide her. It has previously been said that society must be willing to tolerate very diverse standards of parenting including the eccentric, the barely adequate and the inconsistent. Any risks relating to the parenting of these parents are 'not a great deal higher than those present in families up and down the country every day'. Miss Magennis goes on to submit that the court failed to give cogent reasons for suggesting that those risks could be better managed under a care order rather than a supervision order.
Ground 3
79. Thirdly, the local authority contends that
'The judge's order was a disproportionate interference in the ECHR Art 8 rights of the parents and child, was wrong in the circumstances in stating that a less interventionist order would not meet the needs of FC, and the care order was neither necessary nor proportionate.'
80. Finally, Miss Magennis relies upon the observations made by Hale LJ in Re O (A Child) [2001] 1 FLR 923 concerning the importance of proportionality, to which I referred earlier. Miss Magennis points to the progress made by the parents, their compliance with the local authority and the level and likely duration of local authority support. With those points in mind she submits that a care order is a disproportionate intervention in the lives of the parents and FC.
81. For the guardian, Miss Jane Bacon accepts that the principles the local authority takes from Re O (A Child) [2001] 1 FLR 923 are correct. She accepts that cogent reasons must exist before the court should impose on a local authority an order that it does not seek. She accepts that the order made by the court must be proportionate. She submits that on a correct application of those principles to the facts of this case the District Judge's order was correctly made.
82. More specifically, with respect to the first ground of appeal Mrs Bacon submits that although it is the case that there are positives in the parents' care of FC, those positives must be balanced against the significant amount of work the parents are each required to do if FC's continued safety and wellbeing are to be maintained in the long term. In particular she makes the point that it is essential not to isolate the parents' ability to meet FC's present needs from their ability to meet her long term needs. She notes that it is the parents' ability to meet FC's long term needs that concerned the experts and, in turn, the District Judge.
83. Mrs Bacon did not accept that the District Judge had made a care order in order to put pressure on the local authority to deliver on its support plan. She makes the point, correctly, that the District Judge made it clear that despite previous concerns around the local authority's actions, those concerns played no part in her ultimate decision that a care order was the appropriate order to make in the circumstances of this case.
84. In her supplemental submissions, Mrs Bacon makes the point that the appointment and role of an IRO provides an important part of the safeguards associated with a care order. In this case a care order would ensure robust monitoring of FC's care plan to ensure that it continued to meet FC's needs and to ensure her continued safety, development and well-being.
85. With respect to the second ground of appeal, Mrs Bacon did not accept that the District Judge had placed too much weight on the issue of risk. She submits that this ground of appeal flies in the face of the expert evidence. Indeed, as she correctly points out, the local authority's own care plan referred to FC 'being at risk of significant harm and that her basic needs would not be sufficiently met without their future involvement'.
86. As for the third ground of appeal, Mrs Bacon accepts that any order made must be proportionate to the issues and risks in the case. She submits that,
'What is key within the authorities referred to is that the order is consistent with the principle that the child's welfare is paramount. The judgment evaluates the risks present in this case...which provides the basis for the necessity of a care order to protect FC from the risk of future harm.'
Discussion
87. The court has the power to make a care order in circumstances where it is accepted that the child concerned should remain living with, or be returned to live with, her birth parents. That is expressly provided for by s.22C(2) of the Children Act 1989 and is an approach that has been approved by the court in other cases. The issue raised by this appeal is not whether it is permissible to make a care order in respect of a child placed with her birth parents but whether, in the particular circumstances of this case, it is appropriate and proportionate to do so.
88. With that in mind I turn to consider each of the three grounds of appeal.
Ground 1
89. In its first ground of appeal the local authority contends that, 'The imposition of a care order in this case was an error of law when none of the criteria for the imposition of such an order were satisfied'. I do not accept that submission. In this case I am satisfied that if the District Judge's decision is 'wrong' it is not because there has been an error of law. At its highest, the District Judge's decision could only be 'wrong' if in exercising her discretion she exceeded the generous ambit within which reasonable disagreement is possible.
90. I also take issue with the use of the word 'criteria'. In Oxfordshire County Council v L (Care or Supervision Order) [1998] 1 FLR 70, Hale J referred to 'reasons which might be given for preferring a care order to a supervision order'. She did not refer to criteria which must be satisfied. In my judgment, the points of difference between a care order and a supervision order do not represent a checklist of factors that must be satisfied before a care order can be made on the basis of the child remaining at home with her parents. Rather, they are differences which must be borne firmly in mind when determining whether a care order is, in those circumstances, necessary and proportionate in order to safeguard the welfare of the child.
91. The first ground of appeal goes on to assert that the District Judge 'failed to give any cogent reason for the imposition of a care order instead of a supervision order'. The local authority seeks to make good that assertion by reference to the decision of Hale LJ in Re O (A Child) [2001] 1 FLR 923.
92. Hale LJ identified three main points of difference between a supervision order and a care order. First, a care order gives a local authority power to remove a child without recourse to the court. Second, it gives the local authority parental responsibility for the child. Third, it is an order which lasts until the child reaches the age of 18. I noted earlier that there is a fourth point of difference and that is the role of the IRO. As Ryder LJ highlighted in RW v Neath Port Talbot County Borough Council [2013] EWCA Civ 1227, in the passages set out earlier, the IRO has a significant role to play when a care order is made, particularly in monitoring the local authority's compliance with its own care plan. As he put it, 'The IRO has an important independent role in the governance of the local authority's implementation of the care plan and decisions made a looked after children reviews.' In my judgment, this is another point of difference which it is appropriate to have in mind when determining whether, taking a global, holistic view of the child's welfare needs, a care order is a proportionate outcome. That is particularly so in a case such as this where long term engagement with the support plan, by both the local authority and the parents, is absolutely pivotal to the success of the placement of FC in the care of her parents.
93. It is clear that the District Judge had the first three of those four points of difference fully in mind. In so far as she had before her Mrs Bacon's skeleton argument which highlighted this fourth point of difference, I am satisfied that the District Judge must have had that issue in mind, too, even though she does not refer to it expressly in her judgment.
94. It was with all of those factors in mind that the District Judge arrived at the conclusions set out in paragraphs 58 to 60 of her judgment (see §§49-50 above). In my judgment, having made it clear that she had those factors in mind, for the reasons set out at §90 above it was unnecessary for her to go on to undertake a balance-sheet evaluation in respect of each of those factors.
Ground 2
95. The second ground of appeal is that the District Judge gave 'too much weight to the risks and/or too little weight to the parents' capability and the protective arrangements that the Mother, Father and the Local Authority had agreed'.
96. Every case is fact specific. In this case the background history of both of these parents gives cause for significant concern. The mother has learning difficulties. FC is the mother's sixth child. Her inadequate care of each of her first five children led to them being removed from her care. Four of them have since been adopted. The father has a significant criminal record. He is known to have been a perpetrator of domestic violence in previous relationships and to have abused drugs and alcohol. Since they have been in a relationship together the police have been called out to the parents' home on four occasions as a result of allegations of domestic violence.
97. Against that background the District Judge identified two key concerns - risk of harm and protection from harm. As for risk of harm, the District Judge came to the conclusion that the risks in this case 'are real and significant'. As for protection from harm, the District Judge had in mind the detail of the support plan, the fact that the support plan had scarcely begun to be implemented, the uncertainties of the parent's ability to engage with the support plan, the considerable length of time for which support was likely to be required and the significant efforts that had been required to persuade the local authority to put in place such a detailed support plan in the first place. I do not accept that the District Judge gave too much weight to the risks or too little weight to the parents' capabilities and the contents of the support plan.
Ground 3
98. The third ground of appeal relied upon is that in the circumstances of this case a care order is a disproportionate interference in the Art 8 rights of parents and child and that a less interventionist approach would have met FC's needs.
99. I accept, of course, that a care order involves a significantly greater degree of intervention by the State in the life of a particular family than a supervision order. A care order should only be made if to do so is a proportionate response to the concerns identified by the court in respect of the welfare needs of the child, not least in terms of protection from the risk of harm.
100. I also accept that although it is permissible to make a care order in respect of a child placed in the care of her parents the court should only make such an order when it is satisfied that it is necessary and proportionate to do so. Particular care must be taken before making such an order in circumstances where the local authority itself seeks a lesser order.
101. So far as concerns the issue of proportionality, the views of this very experienced guardian are clear and persuasive. There are passages in her report (I have in mind in particular §§28 and 31 of her report - see §33 above) which resonate with the points made by Ryder LJ in RW v Neath Port Talbot County Borough Council [2013] EWCA Civ 1227. For example, she makes the point that the family needs financial support, which would not be available under a supervision order. She also makes the point that the reviews under a supervision order would be in line with a child in need plan and would 'not afford the structure, priority and longevity which is available under a care order'. That is exactly the point made by Ryder LJ at §§ 51 to 53 of his judgment. Those issues are, in my judgment, plainly relevant to an assessment of proportionality.
102. Whether an order is proportionate or disproportionate is a matter for the trial judge. On this issue, too, on the same set of facts different judges may arrive at a different conclusion. What is proportionate and what is disproportionate are not fixed points to be ascertained by the application of a set of criteria. Proportionality and disproportionality fall on a spectrum. In any particular case precisely where they fall on that spectrum is a matter of impression and judgment. Here, too, in my judgment, only if in exercising her discretion the District Judge exceeded the generous ambit within which reasonable disagreement is possible is it open to me to conclude that the District Judge was 'wrong' in reaching the conclusion that a care order is proportionate. I noted earlier that it is very clear from her judgment that the District Judge had the issue of proportionality at the forefront of her mind.
Conclusion
103. There are many cases where the power to remove a child from her parents' care and/or the sharing of parental responsibility and/or the longevity of a care order and/or the involvement of an IRO will not be proportionate. There will be other cases where it is plainly proportionate. There will be yet other cases that are finely balanced where different judges may arrive at different conclusions without either of them being 'wrong'.
104. In this case the District Judge was taken through the authorities, as I have been. She was fully aware of the key differences between a care order and a supervision order. It is clear from her judgment that she had them well in mind. She concluded that those differences pointed towards a care order as being the appropriate and proportionate order for her to make.
105. In order to succeed in its appeal the local authority must persuade me that the District Judge's decision was 'wrong'. The District Judge herself acknowledged that the decision was 'finely balanced'. In making a care order the District Judge was exercising a discretion. In my judgment, in exercising that discretion she did not take into account any matter which she was not entitled to take into account and neither did she leave out of the account any matter which should have been included in her assessment. Her conclusion that a care order was the appropriate order to make was a decision that fell well within the generous ambit within which reasonable disagreement is possible. In all the circumstances I find it impossible to conclude that the District Judge's decision was 'wrong'. The appeal is therefore dismissed.