By Robert Wilkinson

I was recently instructed on behalf of parents in an application by a Local Authority to extend a supervision order. The twelve-month supervision order was nearing its expiry, and owing to a decline in the standard of care being offered to the children, the Local Authority wished to continue its engagement and work with the family for a further year.

The parents, showing a great deal of insight, acknowledged that they had let things slip over recent months, and were therefore not seeking to oppose the application. Nonetheless, the Guardian wished to undertake her own enquiries which would mean any final determination of the application would be a number of weeks after the expiry of the initial twelve-month term. The question of how the court should manage such an application, which was likely to straddle the expiry of the supervision order, therefore arose.

The court’s power to make a supervision order rests on the foundation provided by s.31 of the Children Act 1989, which does not require repeating here.

More specific characteristics of the supervision order are set out in Schedule 2, Paragraph 6 of the Children Act 1989:

  1. Subject to sub-paragraph (2) and section 91, a supervision order shall cease to have effect at the end of the period of one year beginning with the date on which it was made.
  2. A supervision order shall also cease to have effect if an event mentioned in section 25(1)(a) or (b) of the Child Abduction and Custody Act 1985 (termination of existing orders) occurs with respect to the child.
  3. Where the supervisor applies to the court to extend, or further extend, a supervision order the court may extend the order for such period as it may specify.
  4. A supervision order may not be extended so as to run beyond the end of the period of three years beginning with the date on which it was made.

In the case of Re A (Supervision Order: Extension) [1995] 1 FLR 335, Lady Justice Butler-Sloss, as she then was, set out the Court of Appeal’s views in respect of short extensions of supervision orders where it was not possible to conclude the substantive extension application prior to the expiry of the initial 12-month period:

“If the application to extend the supervision order is within time and opposed but the hearing date is after the original supervision order has expired, the court can make one or more short extension orders pending the determination of the opposed application.”

Lord Justice Hoffmann added:

“I see no reason why magistrates should not grant a succession of extensions to cover adjournments of the application if they think that the interests of the child and the principle of no delay so require.”

This position is also reflected by Herschmann & Macfarlane (Section C-16.11):

“On an application to extend a supervision order, the court does not have power to substitute a care order. There is power to make a succession of short, interim supervision orders pending the hearing of the application to extend.”

However, caution should be exercised in using the term ‘interim’, as the making of such an order is technically an extension of the substantive supervision order, rather than the making of a discrete interim order.

The Court of Appeal considered the issue of the duration of supervision orders more recently, in the case of Re T (A Child) v Wakefield Metropolitan District Council [2008] EWCA Civ 199.

The Local Authority sought a supervision order lasting for three years due to a risk posed by the maternal grandmother’s partner who had a history of sexual offences. After reviewing the relevant sections of the Children Act, the trial judge concluded that he could make an order in those terms. The father appealed on the basis that the statute prevented the making of a supervision order for a period longer than twelve months from the outset.

In the leading judgment, Thorpe LJ, as he then was, considered the construction of para. 6(1) of Part II, Schedule 3 of the Act and concluded that the Local Authority could not “circumvent the clear words of paragraph 6(1)”, which states “a supervision order shall cease to have effect at the end of the period of one year beginning with the date on which it was made” and so the maximum initial duration of the order should be twelve months.

Turning to the question of when an application to extend a supervision order should be made, the Court of Appeal offered guidance at paragraphs 20 to 23, with Thorpe LJ noting:

“I would doubt the need for any application to extend a supervision order of twelve months duration before the last quarter of its first life”.

Whilst the circumstances of each individual case may not always lend itself to the Local Authority issuing an application to extend two or three months prior to the expiry of the 12 months, the earlier the application, the more likely the court will be in a position to conclude the application within one or two hearings.

In my example, the problems that had led to the Local Authority seeking to extend the order were apparent some 3 months prior to the end of the supervision order. Had the Local Authority issued its application at that time, rather than 5 days before the order’s expiry, and invited the court to list a directions hearing shortly before the expiry, this would have provided sufficient time for the Guardian to undertake her analysis and the parents to provide statements, whilst keeping within the twelve-month period. With the parents not opposing the extension, as will often be the case, the proceedings could reasonably have been concluded in just one hearing.