Variation and Extension of Supervision Orders under s39(2) Children Act - Giving Supervision Orders some teeth

Wednesday 20 December 2023

Blog post by Lorna Cservenka of the Garden Court Family Law Team.

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The Public Law Working Group published its recommendations in relation to making supervision orders more effective and robust on 24 April 2023. The working group recommended that the Best Practice Guidance be implemented and that legislative changes be implemented to:

  • a) Provide a statutory footing for supervision support plans (akin to s 31A, CA 1989 in respect of care plans);
  • b) Placing local authorities under a statutory duty to provide support and services under a supervision order;
  • c) Amend statutory guidance to reflect the recommendations in the report and the Best Practice Guidance; and
  • d) Review the working of supervision orders for a period of up to two years post-final order.

Six months on from the working group recommendations and it is becoming commonplace for the court, when considering whether to make a supervision order, to ask the local authority to file a supervision support plan. Such a plan should ideally set out the support and services to be offered to the family, the expectations on the family, and the consequences of failure to adhere to any agreement made alongside the supervision order.

Whilst a local authority will clearly keep under review the parents’ compliance with the terms of the supervision plan, what can a parent do to ensure that the local authority keeps to its side of the agreements reached at court?

s.39(2) Children Act 1989 provides for a supervision order to be varied or discharged by the court on the application of any person who has parental responsibility for the child, the child himself, or the local authority designated by the order. This power exists in addition to the duties on the supervisor set out in s35 and schedule 3 to advise, befriend, and assist the supervised child; to take such steps as are reasonably necessary to give effect to the order; and where the order is not wholly complied with, or the supervisor considers the order to no longer be necessary, to consider whether or not to apply for its variation or discharge.

In the vast majority of cases, the parent of a child is likely to be happy to see a supervision order expire at the end of its duration. The local authority only occasionally applies to extend a supervision order where concerns remain but removal of the child is not considered necessary. A supervision order can be made for up to one year in the first instance and so long as it is extended before its expiry can be extended for up to three years in total (s.91 Schedule 3 para 6).

A parent may wish to consider applying to vary or extend a supervision order where the aims of the supervision plan have not been met. In one such case, I advised the father to apply to vary and extend the supervision order, where the aim of the supervision order had been for the local authority to monitor a plan for resuming the father’s contact with his child. The mother of the child was not keen on him having contact due to past behaviour towards her. The local authority set out a plan for monitoring and reviewing incremental increases to the father’s contact, taking him from supervised contact in a contact centre, to family members taking over the supervision and, eventually, if all proceeded well, for the paternal family to have the child staying overnight.

Unfortunately, despite all the best intentions set out in the final order and supervision plan, the local authority failed to implement the reviews of contact and the father’s contact had fizzled from weekly supervised contact in the contact centre to only occasional successful contact, due to the mother not bringing the child to the centre and the local authority failing to set up the review meetings. Before the expiration of the original order, the local authority decided that it was not going to seek an extension of the duration of the order, and therefore, the father was advised to make the application to vary the supervision order. The court made a short extension at the first hearing until the court was able to hear the full application, which fell after the date the original order would have expired. The father was eventually successful in getting a proper review of his contact, which moved to taking place at his mother’s home overnight supervised by her.

Taking the matter back to court under s39(2) Children Act had several advantages over trying to take the mother to court for a s8 contact order. The court was able to direct the local authority in relation to the steps it should be taking, the father was able to get legal aid as a public law matter rather than requiring to go through the MIAMs and mediation issues to get private law legal aid, and the imminent expiry of the supervision order caused the court to grant a rather quicker listing than a private law s8 application may have been given.

The Garden Court Family Team are happy to provide further advice on the legal issues that arise in relation to supervision orders.

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