Family Law

A new working party to carry out the first review of supervision orders since 1989

On May 11^th the first meeting of a newly formed sub-group of the Public Law Working Group took place to review practice, guidance, regulations and the effectiveness of the law on supervision orders. Authorised by the President of the Family Division, the working party will be led by Professor Judith Harwin, Centre for Child and Family Justice, Lancaster University and Mr. Justice Keehan. It is the first review of the legislation since its enactment in the Children Act 1989.

There is an urgency to undertaking this review. Two recent reports have propelled court ordered reunification to the forefront of policy-makers and practitioners’ attention. Harwin and colleagues (the contribution of supervision orders and special guardianship to children’s lives and family justice) found that nationally 20% of all children who returned to the care of their birth parents on a supervision order, were back in court for new care proceedings within 5 years – a rate that was significantly higher than for any other legal order. The research also found significant and unexplained regional variation in the use of supervision orders and care orders. The 2018 report (Care Proceedings in England: the case for clear blue water, Isabelle Trowler, 2018) by the Chief Social Worker, raised important questions about the possibility of diverting more cases from court altogether. There is also little information available on which children return home on care orders and their outcomes. What is clear however is that professional cultures and attitudes to risk influence the route to reunification and the legal order that underpins it. This was a finding of both Harwin et al’s study and The Ministry of Justice and Department for Education Joint Report for the National Family Justice Board (Ministry of Justice and Department for Education joint targeted work to understand demand and variation in the public law system: a report to the National Family Justice Board (2019)). It helps explain why the 2019 work plan of the Family Justice Board prioritised consistency in decision-making as one of its three streams of work with a particular focus on supervision orders and care orders that place children at home (Family Justice Board Newsletter June 2019).

The working party will consider three main questions:

A] what is the role of the court in child reunification?

B] Given that a proportion of children return home, can more cases be diverted from court altogether?

C] What is the contribution of supervision orders? Can they be strengthened?

Each of these questions brings its challenges. Clearly the court plays a vital role in deciding on reunification, but what kinds of evidence does it use - and need - to help ensure that reunification is safe and sustainable? As regards the possibility of diversion, can a set of indicators be identified to flag up high or low risk cases prospectively or is the engagement of the parents during the court process the crucial determinant? If cases can be diverted, are tailor-made services available to provide the appropriate individualised help and intensive support? Finally, in respect of the contribution of supervision orders, professional opinion has been divided since the earliest days. Defenders of the order have cited its advantages as proportionality, empowerment and state-provided, ring-fenced family support without undue intrusion into family life. In contrast, detractors have argued that the supervision order lacks teeth and is not worth the paper it is written on. Case law has returned repeatedly to the questions of when a care order should be preferred to a supervision order and reminded us that breach carries no meaningful sanction other than applying for fresh care proceedings. If conditions could be attached to supervision orders, might that lead to an increase in applications by the local authority? This was a risk identified by the Family Justice Review Final Report in 2011 and it decided it lacked the evidence to make any recommendation. However, there is no evidence that greater use would constitute a risk to children.

Members of the working party are ideally placed to bring their expertise to these questions. The initial membership includes the Chief Social Worker, the CEO of Cafcass and senior manager of Cafcass Cymru, representatives from the DfE, Ministry of Justice, the Welsh government, Directors of Children’s Services, the Association of Lawyers for Children, the judiciary and the CEO of Family Rights Group. Practitioner networks will be consulted, and the views of parents will be essential. The first meeting will review membership and a full list of names will be published.