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EXPERT COMMENT: Exceptional times for the family justice system

Andrew Perrigo Partner Morecrofts Solicitors

It can feel like a juggernaut – the family justice system. A vast, thundering, relentless force, hurtling forward with very little that changes.

A lot of the law that underpins decisions for children has been around for such a long time. The implementation of the Children Act will actually be celebrating its 30th birthday this year. 30 years of ‘welfare’, ‘wishes and feelings’ and ‘parental responsibility’. Comfortable phrases worn like a comfy jacket. Familiar. Clear. Explainable. It brings a degree of certainty for everyone who uses the family justice system.

Every now and again though a new phrase emerges from nowhere and plonks itself almost casually in the middle of the road and right in the line of traffic, requiring an urgent course correction.

A few years ago that phrase was ‘nothing else will do’. This was the Supreme Court showing us in 2013 how the balancing exercise needed to be undertaken when considering adoption. The subsequent years were then spent trying to work out what those four words actually meant. They were defined and refined as we were told, on occasions, by the senior courts that that simple quadruple word cluster was being ‘misconstrued’ by those who used it every day. It became a shorthand. A code. Nothing else will do would be uttered and people would nod and hope they knew what it meant.

Well, there is another phrase creeping across the road right now, ready to stare down at the advancing family justice monster truck. Watching as the air brakes are applied, some frantic steering and energetic indicators signalling another route deviation. This time that phrase is ‘exceptional reasons’.

In March the Public Law Working Group[1] reported on their review of the Child Protection and Family Justice system . It was immediately embraced by The President of the Family Division. One of the topics considered was the use of care orders. The local authority can apply for a care order if they are of the view that they need to share parental responsibility for a child. In those circumstances the local authority will be of the view that such an order is needed to safeguard that child. Care orders can be either for the life of the proceedings (interim) or they can be the order that the court makes at the conclusion of the proceedings (final).

A final care order can mean a child lives elsewhere such as with a foster carer. But in certain circumstances a child might be placed at home with the local authority continuing to share parental responsibility. Such orders have been recognised as a possible outcome for nearly as long as the Children Act itself. Such placements are regulated by statutory instrument in the Care Planning Regulations. But the Public Law Working Group have reviewed the practice of a ‘final care order at home’ and said there must be exceptional reasons to make a care order in those circumstances.

And just as with ‘nothing else will do’ I suspect we are about to spend a lot of time defining what ‘exceptional reasons’ actually mean.

What could that mean for parents in care proceedings?

  • It might be argued that if a final care order is needed is it safe for the child to go home?
  • Will it raise the bar for what is expected of parents in proceedings
  • Will we see an increase in the use of Supervision Orders? (These are very different to care orders. The local authority do not have parental responsibility and they are normally time limited)
  • We are likely to see more discussion in cases about the law rather than the child
  • It will be important that parents receive the right legal advice when faced with proceedings.

The times we have been living in have been exceptional. The Public Law Working Group report means we will be hearing a lot more about what is exceptional in care proceedings in the years ahead.


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