Public Law Case Law Update
February 2026

Background 

1. At the time of judgment, the application stood at 51 weeks, there having been an application for an interim care order made on 12 September 2024 made by the Local Authority (‘LA’).

2. Whilst HHJ Patel considered that the delay had been necessary in order to acquire a wealth of expert evidence, the judge was clear that there was no justification for the matter to be adjourned further. The issue for the judge to determine was whether or not the matter should conclude with the child Q being transitioned home, as had already occurred over the previous seven days, either under a final supervision order or a final care order.

3. The mother (‘M’) had previously had a child removed and referrals were made before Q’s birth due to concerns linked to her likely parenting centred around her mental health and substance misuse. The mother experienced emotional, physical and sexual harm in her own childhood and was made subject to a full care order in March 2019. M also has a history of anxiety, depression and deliberate self-harm. 

4. The father (‘F’) also suffered from considerable childhood trauma having experienced neglect, physical, emotional and psychological harm as well as sexual harm when he was a child. A full care order was granted in respect of him in October 2012. F has a very serious long-term diagnosis of emotionally unstable personality disorder however within proceedings it became important to pin down and to identify the differential between whether or not some of the symptoms he had were, in fact, linked to an ADHD diagnosis rather than related to his mental health diagnosis of EUPD.

5. During pre-proceedings, concerns arose about the parents’ presentation and volatile behaviours, their chaotic lifestyle, their limited level of co-operation with the LA and both parents’ substance misuse. 

6. The father was assessed by Gillian Merril in regard to ADHD. This assessment included recommendations which the LA took on board and followed through with them to a degree the Court considered to be exceptional. This includes not just facilitating the ADHD diagnosis but also carrying out the delivery of medication by triggering all of the options available to F considering the likely level of delay if the LA reverted to the standard NHS process. 

7. An independent social worker, namely Bridie Steventon, assessed the parents and opined that F's presentation, when regularly taking his medication, at his current dose, is much improved. However, once his dose has been reviewed and he is referred back to the GP and regular medication is issued at a consistent dose, he could manage Q's care individually. The assessor considered that the LA should consider F's presentation in their decision-making and it would be M’s responsibility to keep Q safe if she felt that F's behaviours were unsafe.

Parties’ Positions

8. The LA’s application was for a care order at home with the parents to be supported by the Family Functioning Therapy Team as it considered “that there is still a huge amount of work to be achieved by these parents over a longer period of time”. The LA submitted that there is ongoing work that needs to be completed in relation to the parents’ cannabis use and mental health however the reasons for the care order are not for the purposes of delivery of work, but instead because both social workers agree that the risk that emanates from the likely parenting of these parents is one that still remains high on the ground and has not been sufficiently reduced over the last 51 weeks for the local authority to simply step away under the auspices of a supervision order.

9. The parents submitted that Q should remain in their care under a supervision order. 

10. The Guardian was in agreement with the LA’s application. 

Exceptional Circumstances 

11. HHJ Patel summarised the rule regarding the need for exceptional reasons to make a care order at home, found in Re JW (A Child) [2024] Fam 25, as follows:

a. “The making of a care order on the basis of a plan for the child to remain in the care of her parents is a different matter. There should be exceptional reasons for the court to make a care order on the basis of such a plan.

b. That if the making of a care order is intended to be used as a vehicle for provision of support and services, that is wrong. A means or route should be devised to provide these necessary supports and services without the need to make a care order. Consideration should be given to making a supervision order which may be an appropriate order to support the reunification of the family.

c. If the risk of significant harm to the child are either adjudged to be such that the child should be removed from the care of her parents, or some lesser legal order and regime is required. Any placement with parents in the interim or final order should be evidenced to comply with the statutory regulations for placement at home.

d. It should be considered to be rare in the extreme that the risks of significant harm to the child are judged to be sufficient to merit the making of a care order, but nevertheless, the risks can be managed with a care order being made in favour of the local authority with the child remaining in the care of the parent or parents at home. A care order represents a serious intervention by the state in the life of a child and the lives of the parents in terms of their respective Article 8 rights. This can only be justified if it is necessary and proportionate to the risk of harm of the child.”

12. M’s counsel made ‘really strong submissions’ that a care order was not justified in that the facts in this case were not exceptional and that there were no exceptional reasons. She sought to argue that they are standard facts that happen every day in care proceedings and asked, "What would a care order achieve for Q and the parents on the ground?".

13. F’s counsel submitted that the LA’ suggestion that there is some sort of advantage to Q by having a care order is contradictory when the evidence is that there will still be multiple professionals working on the ground with the family when F finds it difficult to work with the professionals, especially if they do not have a proper understanding of ADHD. As such, transferring the case under a care order to the social work team post-proceedings would actually be a detriment and not an advantage. F’s counsel agreed with the submissions made on behalf of M that the exceptional reasons for the making of a care order were simply not substantiated in this case.

14. The LA's position was set out by Ms Smith, the allocated social worker, in her updating statement. The LA said in their justification of there being 'exceptional reasons' for a care order were that it still considers that there is an increased level of risk around Q being at home because the LA did not consider that F has entirely stabilised on his ADHD medication, there had not been the total transfer of that to the GP and F had been late in ordering his medication requiring support from the LA to do so. Further, following issues with timing and dosage, F chose to self-medicate by increasing his cannabis use, which is an issue the LA say has not been resolved even 51 weeks into proceedings. The LA said the need to continue to share parental responsibility for Q was not just a question of simply providing support, but also about monitoring it and continuing to oversee the issue of risk.

15. Further, the LA still had concerns about heightened presentation, that the parents also have not yet completed the relationship work that was recommended by Ms Steventon, and that F has not completed all of the ADHD therapy in full thus cannot learn to manage his ADHD with the whole range of strategies available. 

16. What Ms Smith goes on to say is that the outstanding work is not the reason that the local authority is proposing a care order, it is because of the local authority's analysis in relation to the remaining significant vulnerability and that the outstanding work adds to the current unknowns and known risk factors in relation to the likely parenting that Q will receive.

17. The Guardian’s position in regard to whether there are exceptional reasons can be understood through their analysis of static and dynamic risk.

Static Risks

18. The Guardian considered that there were static risks linked to the parents' mental health needs and to F's neurodivergent needs. The static risks relate to how the parents relate to one another, how they manage their own mental health and how they manage and are able to move forward in terms of therapeutic intervention of F and the management of his ADHD.

Dynamic Risks 

19. The dynamic risks that the Guardian identified are those that are linked to both of the parents' parenting capacity, both of their adverse childhood experiences, their increased substance misuse, their association with risky adults, their volatile behaviours and their risk of homelessness. However, the Guardian says that through working with professionals, these dynamic risks have reduced, and the remaining are the static risks.

20. The Guardian’s fundamental concern was that if the local authority were to step away and not have parental responsibility for Q, that there is a risk that his parents could choose not to engage given comments they have made to that effect. In those circumstances, she questioned how a supervision order would work.

21. The Court found it very difficult to depart from that being a valid and justified conclusion and struggled to find any flaws in her analysis.

Conclusion 

22. The Court found that the reasons why the local authority has to have a care order amount to the following:

i) “it is the ability and the need of the local authority to manage the calibration of risks that is going to go up and is going to come down over the course of the work that still needs to be delivered to these parents, and 

ii) the only way that that risk, in reality, can be managed, is if Q continues to be subject to a care order and the local authority is fully on board and fully engaged in monitoring and ensuring that the safety expectations for Q are implemented in his day-to-day life

iii) it is not on the current analysis of risk, acceptable for the local authority to step away under a supervision order which would simply allow the parents to engage or not engage, albeit I accept, it is likely that they will continue to engage. The risk is too high to allow that to be an option, and whilst the care order remains in force, the parents will know that in order to get through this next stage, which in effect is a stage which will allow them to demonstrate that they can consistently and safely parent Q on a day-to-day basis and on a long-term basis into the rest of his childhood, that this has to be done under the auspices of an order that will engage the local authority's responsibility to provide oversight and monitoring. It is not a case of simply having support that is the reason that a care order is justified in this case.”

23. The Court found that the level of risk sits at somewhere between medium to high, and on that basis, the risk has not been sufficiently reduced to allow a lesser public law order to be considered. 

24. The Court concluded that the exceptional reasons for making a care order at home were that the static risk factors remain so high that the chance of this shifting towards the risk being increased in a short period of time remains if there is a trigger or if there is an unexpected change for these parents. As such, they will need ongoing support through professionals, through monitoring, and through the auspices of a care order, to ensure that shift and/or increase in risk does not happen. 

25. The Court therefore made the care order at home and considered that the parents would have to show that they can embed consistently and apply new coping mechanisms and strategies through the work of FFT and Gillian Merrill, to actively reduce the risk before the local authority can step away and have anything less than a care order.