Public Law Working Group launches consultation on supervision orders

The Public Law Working Group (PWLG) led by Mr Justice Keehan has launched a consultation on supervision orders in order to consider how they could “be more robust and effective”.

Established in 2018 by the President of the Family Division, the principal objectives of the PWLG are to recommend “(a) changes to both systems which could be implemented readily and without the need for primary or secondary legislation to effect the same and (b) longer-term changes which would require primary or secondary legislation and/or the expenditure of public funds”.

An interim report published last month, Recommendations to achieve best practice in the child protection and family justice systems: Supervision orders, lays out best practice guidance (BPG) and seven consultation questions to be answered by those concerned with the child protection and family justice systems.

The report makes five core recommendations:

1. Each local authority’s children’s services department implements the BPG.
2. Supervision orders are only made when all of the matters set out in the supervision order template within the BPG have been considered and addressed.
3. Each children’s services department adopts and completes the self-audit questions within the BPG in respect of every supervision order made in its favour.
4. Each children’s services department considers adopting the ‘thinking tool’ within the BPG.
5. The Government commits to provide the necessary resources to local authorities to enable them to adopt and implement the BPG to the fullest and most effective extent possible.

The report also makes four proposals for “long-term change”:

1. Amending the Children Act 1989 to provide a statutory basis for supervision support plans (akin to s 31A, CA 1989 in respect of care plans).
2. Placing local authorities under a statutory duty to provide support and services under a supervision order.
3. Amending statutory guidance to reflect the recommendations in the interim report and the BPG.
4. The Government undertaking or funding an external body to identify all supervision orders made by the Family Court to support family reunification and collect data on (a) the supervision plan at the end of proceedings, (b) the implementation of the plan during the life of the supervision order and (c) change of placement or return to court for the children and their parents up to two years after the end of the supervision order.

The consultation opened on 1 November 2022 and will continue until 30 November 2022.

The questions asked are:

• Should supervision orders be retained as a public law order?
• Should supervision orders be reformed to be a more robust and effective public law order?
  
• Are the recommendations for immediate reform in this interim report sufficient to achieve the goal of making supervision orders more robust and effective?
• If not, what other reforms or measures should we recommend?
• Are the reforms and measures set out in the BPG (p 73 onwards) proportionate and practical or are they, or any of them, overly burdensome to implement for parents/carers, the Family Court, children’s services or others involved in the child protection and family justice systems? If so, how could they be improved?
• Should guidance be issued by the DfE / Welsh Government to underpin the BPG set out in this report to help ensure consistency of support and oversight?
• Should there be future legal and practice reforms so that supervision orders are (a) supported under a specific supervision order review pathway provided for in relevant primary and secondary legislation, (b) underpinned, supported and reviewed via the child-in-need framework in England, the care and support plan framework in Wales, or (c) underpinned, supported and reviewed through the child protection framework including through child protection plans?

The PWLG said it also welcomed more general views on the nature and use of supervision orders within the consultation.

The report revealed that there was “a lively debate” amongst the members of strand one of the PWLG’s sub-group on supervision orders, and then the full sub-group, about whether it should recommend the abolition of supervision orders as opposed to recommending changes.

Mr Justice Keehan said: “Those in favour of abolition considered it could result in many potential care proceedings being diverted from the Family Court (their rationale being that children’s services departments might decide that a child’s welfare did not require the institution of public law proceedings when the only option available to the Family Court was either to make a care order or to make no order).

“Those against the proposition feared that, rather than having the beneficial effect of bringing about a reduction in the number of care cases issued by local authorities, it would lead, albeit unintentionally, to an inappropriate increase in the number of cases which concluded with the making of a care order.”

The judge said it was agreed that the remit of the sub-group was to consider how to make supervision orders more robust and effective. “It was considered preferable to undertake this exercise and only if our proposed reforms of supervision orders were not successful in practice would it be appropriate to consider the far more drastic option of abolishing this order.”

Ultimately, a clear majority of the sub-group did not support the proposal to recommend the abolition of supervision orders, Mr Justice Keehan said.

“Accordingly, Professor Harwin and I, as co-chairs of the sub-group, invited the Law Commission of England and Wales to consider including the issue of the abolition of supervision order in its forthcoming 14th Programme of Law Reform. The Law Commission has yet to determine whether this issue will be included within its next programme.”

Lottie Winson