No Care Order Without a Live s.31A Plan
Commentary on A & Ors (Care Orders at Home) [2025] EWCA Civ 901

1. Introduction

The Court of Appeal’s decision in A & Ors (Care Orders at Home) rewinds a complex piece of public law litigation involving five siblings aged 8–13. The case arose from longstanding child-protection concerns, parental non-engagement and a first-instance judge who, despite deciding the children should remain with their mother, nevertheless imposed final care orders. Both parents and the local authority disagreed with the practicality and legality of the outcome and lodged cross-appeals.

Rather than rule on the factual challenge, the Court of Appeal identified a more fundamental, procedural error: the judge had no lawful basis to make a final care order because no compliant care plan under section 31A Children Act 1989 (“s.31A plan”) existed or could exist in the circumstances. The appellate court therefore set aside the orders, reinstated interim care orders, discharged an improperly granted injunction, and remitted the case for a full rehearing.

This commentary explains the decision, details the authorities discussed, analyses the court’s reasoning, and explores its wider significance—most notably the emphatic reiteration that a court cannot make a final care order unless a live, detailed s.31A plan is before it, and that care orders leaving children at home are ‘rare in the extreme’ and demand exceptional justification.

2. Summary of the Judgment

• Appeal allowed by consent. The Court of Appeal (Baker, Peter Jackson and Bean LJJ) set aside the final care orders because they were made in breach of s.31(3A) Children Act 1989.
• Procedural error. The trial judge ordered final care orders even though the local authority’s only extant plans involved removal and there was no revised plan providing for the proposed “at-home” placement.
• Rehearing ordered. The matter is remitted before a different judge; interim care orders substitute the defective final orders.
• Injunction replaced. The father’s exclusion from the family home is now imposed under the statutory interim-care-order power (s.38A), not under the court’s inherent jurisdiction, because a statutory route was available.

3. Analysis

3.1 Precedents Cited and Their Influence

1. Re JW (Child at Home under Care Order) [2023] EWCA Civ 944 (McFarlane P).
   Confirmed that keeping a child at home under a final care order is “exceptional” and demands rare justification. The present appellate court used Re JW to show that the first-instance court should have undertaken a stringent analysis before imposing an at-home care order.
2. Re S & W (Care Plans) [2002] UKHL 10; Re W (Function of Court and Local Authority) [2013] EWCA Civ 1227; Re T [2018] EWCA Civ 650; Re T-S [2019] EWCA Civ 742.
   These decisions articulate the demarcation between:
   • the court’s role (whether to make an order), and
   • the local authority’s role (what care plan will be implemented once an order exists).
   The Court of Appeal relied on these authorities to demonstrate why the trial judge should have allowed the local authority to reconsider and, if possible, reformulate its plans before any final order.
3. Statutory authorities: s.31, s.31A, s.38 & s.38A Children Act 1989; s.37 Senior Courts Act 1981; s.100 Children Act 1989.
   These provisions establish the statutory scaffolding that the judge breached by making care orders without an extant plan and by granting an injunction under the inherent jurisdiction where a statutory route was available.

3.2 The Court’s Legal Reasoning

Lord Justice Baker identified two inter-locking procedural defects:

1. Absence of a s.31A Plan (Illegality Point).
   Section 31(3A) is unequivocal: “No care order may be made … until the court has considered a s.31A plan.” Because the local authority withdrew its original removal plans and had not drafted a fresh plan reflecting the judge’s proposed at-home placement, no plan existed. Consequently, the court lacked jurisdiction to make the final orders. The proper course was to adjourn, invite revised plans, and obtain the guardian’s views.
2. Misuse of Inherent Jurisdiction.
   Section 100 Children Act restricts a local authority from invoking the court’s inherent jurisdiction if a statutory remedy exists. An exclusion requirement under s.38A would achieve the same goal as the injunction. The judge therefore erred in granting leave and granting the injunction. The appellate court replaced it with an exclusion requirement attached to the interim care orders.

Underpinning both strands is proportionality (Article 8 ECHR) and the separation of responsibilities principle—the court decides orders, the authority decides care plans. The trial judge’s shortcut collapsed that structure.

3.3 Potential Impact

• Re-emphasising procedural discipline. Courts must always confirm the presence of a compliant s.31A plan before making a final care order. Administrative convenience cannot override statute.
• “At-home” care orders now under stricter spotlight.
  Expect even rarer deployments of such orders. Local authorities and guardians will challenge them unless a robust, jointly agreed plan exists and the evidence is overwhelming.
• Injunctive practice rationalised. The decision is a practical reminder to prefer statutory exclusion requirements over inherent-jurisdiction injunctions where available, reducing litigation on leave issues under s.100.
• Advisory effect on case management.
  Judges facing a divergence between their welfare view and a local authority’s plan should adjourn, invite revision, and, if deadlock persists, contemplate judicial review rather than force through an untenable final order.

4. Complex Concepts Simplified

Care Order (final)

A court order placing a child in the care of a local authority and giving that authority parental responsibility.

Interim Care Order

A temporary arrangement while proceedings are ongoing; parental responsibility is shared but the final welfare decision is yet to be made.

s.31A Care Plan

A detailed written plan every local authority must file, setting out how it proposes to care for the child once a final care order is made. The court must consider it before making the order.

At-Home Care Order

A rare scenario where a final care order is made but the child physically remains living with a parent. Judges must show “exceptional reasons” for this solution.

Inherent Jurisdiction vs Statutory Powers

The High Court (and Family Court) has a residual power (inherent jurisdiction) to make orders for children’s welfare. However, s.100 says a local authority cannot ask for that unless the desired result cannot be obtained under any statute.

Exclusion Requirement (s.38A)

A condition attached to an interim care order forbidding a person (usually a parent) from the child’s residence or a specified area.

5. Conclusion

A & Ors (Care Orders at Home) delivers a clear, practical precedent: a court may not, under any circumstances, make a final care order without first scrutinising a live, detailed s.31A plan covering the placement actually intended. When the intended placement is the child’s own home, the bar is even higher—exceptional justification and a workable, agreed plan are indispensable.

The judgment also tidies injunctive practice: where Parliament has provided a statutory mechanism (such as s.38A exclusions), the inherent jurisdiction is off-limits to local authorities.

Going forward, practitioners should double-check:

• Is there a compliant s.31A plan on the file matching the order the court proposes to make?
• Has the local authority had an opportunity to review the court’s provisional welfare conclusions and amend its plan?
• If injunctive relief is sought, is a statutory route available so that the inherent jurisdiction is unnecessary?

Failure to navigate these checkpoints will invite swift appellate correction—just as occurred here. No Care Order Without a Plan is no longer merely good practice; it is now copper-bottomed precedent.