The contribution of supervision orders and special guardianship to children’s lives and family justice

Professor Judith Harwin, Dr Bachar Alrouh, Ms Lily Golding, Ms Tricia McQuarrie, Professor Karen Broadhurst and Dr Linda Cusworth - Centre for Child and Family Justice Research, Lancaster University

1.1 Introduction and background

This report is about the use of ‘family orders’ to support family reunification and placement with family and friends as outcomes of S31 care and supervision proceedings brought under the Children Act 1989. These proceedings are brought by local authorities for children who they believe have experienced or are likely to experience ‘significant harm’ as a result of the parenting they have received falling below a reasonable standard. They are amongst the most vulnerable children in society who have met the highest threshold of concern and their futures cannot be decided without the intervention of the court.

The main focus is on supervision orders made by the courts to help support birth families to stay together, and on special guardianship when the child is placed with family and friends, with or without a supervision order. It is important to distinguish between these two family orders regarding the support they provide for permanency. A special guardianship order (SGO) lasts until the child reaches the age of 18 but a supervision order is time-limited. A supervision order places a duty upon the local authority to ‘advise, assist and befriend the supervised child’. It is initially made for a period up to one year but can be extended after this to a maximum of three years. An SGO gives the carers the main responsibility for the child’s care and upbringing but retains the legal link with the birth family. The local authority does not hold parental responsibility when either order is made.

The over-arching aim of this study is to understand the opportunities, challenges and outcomes of these orders, and their use at national and regional level. This is the first study of both supervision orders and special guardianship to make use of national (England) population-level data routinely produced by the Children and Family Court Advisory and Support Service (Cafcass) concerning all children subject to S31 care and supervision proceedings. It is also the first study to use this data to examine the proportion of SGOs in which a supervision order is also made for the child.

The report is being published at a critical time in family justice. The overall trend regarding care demand is upward. Despite a small drop in demand in 2017/18, the number of children in care and supervision applications is still more than double the figure recorded in 2007/08 This has created huge pressures on the family court and children’s services alike. As part of its inquiry into ways of tackling the issues, the recent Care Crisis Review concluded that the family itself is an underused resource (Care Crisis Review, 2018). Since 2013, case law has also affirmed the important role of the court and children’s services in promoting permanency orders that keep families together and most recently called for new guidance on special guardianship. This comes just three years after a major review undertaken by the Department for Education introduced changes to the regulatory framework (Department for Education, 2015).

At the same time however, there remains concern about the quality and timeliness of assessment of potential special guardians, particularly in the context of the statutory requirement introduced in the Children and Families Act 2014 to complete S31 proceedings within 26 weeks, save for exceptional circumstances. In the 2017 Bridget Lindley Memorial Lecture, Lord Justice McFarlane drew attention to practitioner concerns that some SGOs were made when there had been insufficient time to robustly test the suitability of the placement, thereby risking problems later on. These concerns take place in the context of a small number of high-profile serious case reviews following the deaths of children on SGOs. Moreover, in 2017 a serious case review in Derbyshire called into question the value of the supervision order (Myers, 2017), echoing views as early as 1999 that the supervision order may not be “worth the paper it is written on” (Hunt, Macleod & Thomas, 1999, p351). Finally, the Children and Social Work Act 2017 has raised expectations about the requirements of permanent placements in all family orders to take account of children’s long term needs in the light of their histories of vulnerability. In short, expectations have risen as resources have decreased to deal with rising demand.

For all these reasons, it is essential to understand the extent to which these family orders provide safe and sustainable family-based alternatives to public care and to understand more about local authority and court decision-making, as well as family experiences.