The legislation says that a Care Order can be made (Section 31(2) the Children Act 1989) if:
a) that the child concerned is suffering, or is likely to suffer, significant harm; and
b) that the harm of likelihood of harm is attributable to –
(i) the care being given to the child, or likely to be given to him if the Order were not made, not being what it would be reasonable to expect a parent to give to him; or
But (Section 31(3)),
No care or supervision Order may be made with respect to a child who has reached the age of seventeen (or sixteen in the case of a child who is married).
Now, although a Care Order cannot be made after the child turns seventeen, where a Care Order has already been made it continues to be in force until the child turns eighteen (Section 91(12)).
What then of the situation where a Care Order has not been made but an Interim Care Order has? Can an Interim Care Order subsist after the child turns seventeen, given there is now no prospect of the final Care Order being made?
This deceptively simple looking question exercised The Honourable Mrs Justice Knowles in the High Court in February this year in the case Re Q (Child: Interim Care Order: Jurisdiction).
Interim Care Orders remain in force until the disposal of the application (S38(4)(c)). Under the Care Order, the Local Authority has duties that might benefit the seventeen-year-old such as a duty to house. In a situation where the child is beyond parental control or where the child is near Gillick competence but not quite yet, the Local Authority may be of great assistance to the child.
The argument put before the Court on behalf of the Local Authority was that the legislation did not expressly prevent the making of an Interim Care Order before the child’s seventeenth birthday. The only provision in the act for determining the duration of an interim Order was S38(4) – the disposal of the application.
The parents submitted that an Interim Care Order could not extend beyond a child’s seventeenth birthday because:
(a) from the date of the child’s seventeenth birthday, an Interim Care Order became immediately without purpose,
(b) it could not have been an intended consequence of the 2014 amendments to the Act to create a scenario where a child was potentially subject to an Interim Care Order until the age of eighteen,
(c) continuing an Interim Care Order at a point where a full Care Order could not be made would mean that the child would be subject to a non-consensual Order without the level of scrutiny that would otherwise be required when making a full Care Order,
(d) making an Interim Care Order which would last beyond a child’s seventeenth birthday interfered with the autonomy otherwise accorded to a child of that age by the Act, and
(e) Public law proceedings could only continue whilst there was a jurisdiction to make the final Order being sought by the applicant local authority. The jurisdiction to make an Interim Care Order only arose on an adjournment or a direction pursuant to section 37 – it was not available as a free-standing remedy.
There is not a great deal of case law on the subject of when interim Orders can continue.
The Honourable Judge considered the obiter dicta of Mr Justice Williams in Re A (Wardship: seventeen Year Old: Section 20 Accommodation)  EWHC 1121 (Fam).
“In relation to Care Orders, of course, s.31(3) provides that no Care Order may be made with respect to a child who has reached the age of seventeen. Just for the sake of clarity, because an issue was raised but ultimately not pursued, the interim Order that was made in September endured by operation of s.38(4) of the Children Act 1989 for such period as may be specified. S.38(4) provides that it would cease to have effect on the occurrence of certain events. The only event which applies in this case is s.38(4)(c) which is the disposal of the application. So the Interim Care Order would endure until the disposal of the application, i.e. today. There is no provision for it to cease on the child reaching the age of seventeen.”
She further considered the comments of McFarlane LJ in Re M (Jurisdiction: Wardship)  EWCA Civ 937
“There is no jurisdiction under CA 1989 to make a Care Order with respect to a child who has reached the age of seventeen (or 16, in the case of a child who is married). (CA 1989, s 31(3)). That provision applies to an Interim Care Order just as much as it does to a final Care Order (CA 1989, s 31(11))”
“It is common ground before this court that, as T was over the age of seventeen by the time the judge came to make final Orders, there was no jurisdiction to make a care or supervision Order with respect to her in consequence of s 31(3), notwithstanding that if a final Order had been made prior to her seventeenth birthday it would have continued to be in force until the age of 18 (unless it had been brought to an end earlier).”
She also looked the 1984 Law Commission review of the law relating to children, four 1985 Working Papers and the Law Commission’s 1988 Report on Family Law: Review of Child Law, Guardianship and Custody.
“One further point may be conveniently mentioned here. The courts’ present powers to make custody and access Orders endure until the child reaches 18, although the court will rarely, if ever, make a custody Order which is contrary to the wishes of a child who has reached 16. Any other approach is scarcely practicable, given that this is the age at which children may leave school and seek full-time employment and become entitled to certain benefits or allowances in their own right. However, the matter goes beyond the question of what is practicable. There are powers of direct enforcement of custody Orders which operate upon the child rather than the adults involved. The older the child becomes, the less just it is even to attempt to enforce against him an Order to which he has never been a party. … There may be exceptional cases in which it is necessary to protect an older child from the consequences of immaturity but these will be rare and the court will no doubt always wish to make the child a party before doing so.”
In regard to whether an Interim Care Order could subsist after the child reached seventeen, ultimately the Honourable Judge decided it could not although the Honourable Judge ruled that Public Law proceedings could still continue. This is on the basis that first, there may be merit in determining whether threshold was met because that decision may impact on future children of the parents. Second, although final public law Orders would not be available to the court, the court might conclude the proceedings before the child is eighteen by making other Orders available to it such as a section 8 Order (assuming exceptional circumstances applied) or by making Orders under the inherent jurisdiction.
When the jurisdiction to make interim and final public law Orders is no longer available, careful scrutiny of the circumstances of each case will be needed in Order to discern whether it is proportionate and in the child’s welfare interests for them to continue.
In most cases, it will be proportionate for the Local Authority to withdraw its application but there will be circumstances where it would be in the public interest and in the interests of the child’s welfare for proceedings to continue.
Presumably, under the Honourable Judge’s ruling, the Local Authority are then deemed not to be applying for a Care Order or the continuation of an Interim Order but an Order that Threshold was met or that particular findings are made.
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