Family Court judge takes rare step of making care orders for children remaining at home with mother

In GCC v M & Ors [2026] EWFC 94 (B) (10 April 2026), Her Honour Judge Cope concluded: “Such orders are both necessary and proportionate and in accordance with their welfare which is my paramount consideration."

The case concerned a boy, ‘A’, and a girl, ‘B’. Proceedings were issued in June 2025.

In a judgment in March 2026, HHJ Cope confirmed that threshold was crossed but she was not prepared to make care and placement orders as sought by the local authority.

She adjourned the case to enable the local authority to consider what further work could be offered to the mother.

At the present hearing, Judge Cope said: “The local authority now seeks to conclude proceedings but to undertake further work with the mother around domestic violence and risky individuals. I am invited to take the unusual step of making care orders for the children with them remaining at home. This is agreed by the father and the guardian. It is not opposed by the mother.”

Starting by outlining relevant caselaw, she said: “The case law in respect of making care orders at home includes Re DE (child under a care order) [2015] 1 FLR 1001 and Re JW (child at home under care order) [2023] EWCA Civ 944. In Re DE, Baker J gave the following guidance (paragraph 49):

 "To avoid the problems that have arisen in this case, the following measures should be taken in future cases.

(1) In every case where a care order is made on the basis of a care plan providing that a child should live at home with his or her parents, it should be a term of the care plan, and a recital in the care order, that the local authority agrees to give not less than 14 days' notice of a removal of the child, save in an emergency. I consider that 14 days is an appropriate period, on the one hand to avoid unnecessary delay but, on the other hand, to allow the parents an opportunity to obtain legal advice.

(2) Where a care order has been granted on the basis of a care plan providing that the child should remain at home, a local authority considering changing the plan and removing the child permanently from the family must have regard to the fact that permanent placement outside the family is to be preferred only as a last resort where nothing else will do and must rigorously analyse all the realistic options, considering the arguments for and against each option. Furthermore, it must involve the parents properly in the decision-making process.

(3) In every case where a parent decides to apply to discharge a care order in circumstances where the local authority has given notice of intention to remove a child placed at home under a care order, the parent should consider whether to apply in addition for an injunction under s 8 of the HRA 1998 to prevent the local authority from removing the child pending the determination of the discharge application. If the parent decides to apply for an injunction, that application should be issued at the same time as the discharge application.

(4) When a local authority, having given notice of its intention to remove a child placed at home under a care order, is given notice of an application for discharge of the care, the local authority must consider whether the child's welfare requires his immediate removal. Furthermore, the authority must keep a written record demonstrating that it has considered this question and recording the reasons for its decision. In reaching its decision on this point, the local authority must again, inter alia, consult with the parents. Any removal of a child in circumstances where the child's welfare does not require immediate removal, or without proper consideration and consultation, is likely to be an unlawful interference with the Art 8 European Convention rights of the parent and child.

(5) On receipt of an application to discharge a care order, where the child has been living at home, the allocation gatekeeper at the designated family centre should check whether it is accompanied by an application under s 8 of the HRA 1998 and, if not, whether the circumstances might give rise to such an application. This check is needed because, as discussed below, automatic legal aid is not at present available for such applications to discharge a care order, and it is therefore likely that such applications may be made by parents acting in person. In cases where the discharge application is accompanied by an application for an order under s 8 of the HRA 1998, or the allocation gatekeeper considers that the circumstances might give rise to such an application, he or she should allocate the case as soon as possible to a circuit judge for case management. Any application for an injunction in these circumstances must be listed for an early hearing.

(6) On hearing an application for an injunction under s 8 of the HRA 1998 to restrain a local authority removing a child living at home under a care order pending determination of an application to discharge the care order, the court should normally grant the injunction unless the child's welfare requires his immediate removal from the family home."

HHJ Cope also noted that in Re JW the President of the Family Division reviewed the practice of making care orders where it is proposed that the child will remain at home. In particular at paragraph 28 the President said:

"In summary, looking at the statutory scheme and the case law as a whole, the following is clear:

i) making a care order with a subject child placed at home in the care of their parent(s) is plainly permissible within the statutory scheme and express provision is made for such circumstances in CA 1989, section 22C and in the placement regulations;

ii) the early post-CA 1989 authorities established that a care plan for placement at home was an appropriate outcome where the facts justified it, without the need for exceptional circumstances;

iii) the analysis of Hale J/LJ in Oxfordshire and in Re O laid particular weight upon the need for the authority to have power to remove the child instantly if circumstances required it, or to plan for the child to be placed outside the family;

iv) since Oxfordshire and Re O, the High Court decision in Re DE, containing guidance endorsed by the President, has been widely accepted so that, in all but a true emergency, the local authority power to remove a child from their home under a care order should not be exercised without giving parents an opportunity to bring the issue before a court;

v) the difference concerning removal of a child from home either under a care order or where there is no care order is now largely procedural. In all but the most urgent cases, the decision on removal will ultimately be taken within the umbrella of court proceedings, rather than administratively within a local authority;

vi) sharing of parental responsibility by the local authority with parents is an important element, but, as Hale J/LJ stressed, the fact that considerable help and advice may be needed over a prolonged period is not a reason, in itself, for making a care order;

vii) it is wrong to make a care order in order to impose duties on a local authority or use it to encourage them to perform the duties that they have to a child in need;

viii) the protection of the child is the decisive factor, but proportionality is key when making the choice between a care and supervision order for a child who is placed at home;

ix) supervision orders should be made to work, where that is the proportionate form of order to make."

Judge Cope also observed that the President's Public Law Working Group Guidance makes it clear that the making of a care order for a child to remain at home will be exceptional, and that, "the making of a final care order must be a necessary and proportionate interference in the life of the family".

She found that the case was “exceptional in its nature” for the following reasons:

1. The personal circumstances of the mother who was a vulnerable young care leaver
2. The case was a single-issue case and but for the risk posed by communications with the father and future unhealthy relationships the local authority would not be intervening.
3. She had identified that the children, particularly A, had suffered significant harm and there was a real risk of future significant harm through the risk of the mother's future relationships.
4. Despite the identified harm and future risk, the children were thriving in the mother's care and had a strong attachment to her.
5. A supervision order was not the proportionate order to make. This was exemplified by the fact that the mother continued communications with the father and her relationship with G whilst under an interim supervision order and whilst she was fully aware of the plan to make a final supervision order. These were matters which were addressed in detail in her judgment in March.
6. The proportionate form of order (namely a care order) would require greater intrusion into the article 8 rights of the family. It would require frequent and regular announced and unannounced visits, the checking of communications including examination of mother's devices, the provision of support services, the ability to act swiftly in emergency and the ability to exercise parental responsibility and determine how others may exercise their parental responsibility.
7. The vehicle of a care order was not being used as a vehicle to achieve the provision of support and services; it was necessary for the protection of the children.
8. The vehicle of a care order was not being used as a method to prematurely end proceedings within 26 weeks (the case was in week 40 on the last occasion).
9. The care order was proposed to safeguard and promote the children's welfare and meet their needs.

Concluding the case, HHJ Cope said: “Accordingly, taking all matters into account, I am satisfied that care orders should be made for both children with the plan for them to remain at home in the care of the mother. Such orders are both necessary and proportionate and in accordance with their welfare which is my paramount consideration. The mother satisfies the 2010 regulations for this to happen. The local authority has permission to withdraw its application for placement orders. I am encouraged to read that the mother has undertaken some further online domestic abuse work. She will need to continue to work with the local authority.

“Further, I have made it clear that if there are any breaches of the schedule of expectations, the local authority will need to give serious consideration to whether the children can remain in her care. I sincerely hope this does not happen and that in due course there will be an application to discharge the care orders. As for the father, I hope he will continue to work with the social worker by sending letters to the children with a view to his contact with the children progressing in due course. He has also helpfully given a further undertaking, the terms and consequences of which have been read out to him in court today.”

Lottie Winson