Where a child has been made the subject of a Care Order at the conclusion of care proceedings, it is fair to say that many parents who find themselves in such circumstances hope that, one day, the Care Order will be discharged and the child permitted to return home to their care. Whether that is indeed a realistic prospect will depend on a number of factors. However, regardless of the specific circumstances of the case, one consideration is universal – in discharge applications, timing is key.
Pursuant to Section 39 of the Children Act 1989, a Care Order may be discharged on the application of; (i) any person who has parental responsibility for the child; (ii) the child himself; or (iii) the Local Authority designated by the order. Formal permission by the court to make such an application is not required.
In determining the application, the court will apply the paramountcy principle of the child’s welfare and have regard to the ‘Welfare Checklist.’ This includes considering any harm the child may have suffered and the ability of the parent to meet their needs in the future. It also takes into account the child’s age, circumstances, and wishes and feelings. In order to succeed in discharging a Care Order, a parent would need to satisfy the court that it is in the child’s best interests to do so. The burden therefore falls on the applicant to evidence this to the court.
For there to be any prospect of success, any parent making such an application will need to evidence a change in circumstances different to those at the conclusion of the proceedings and a greater ability to meet the child’s needs than they were found to have in the past. The type of evidence that will be required will vary due to the circumstances of each individual case, however examples could include sustained abstinence from drug and alcohol use, completion of a therapeutic programme of work, or maintained separation from an abusive ex-partner.
This brings us to the issue of timing. In most cases, it will take some time to evidence the necessary changes which would be required for the application to have any merit. A year may be a reasonable rule of thumb, but there is no set rule, and, in some cases, shorter or longer periods of time may be appropriate. However, parents must keep in mind that short-lived changes will almost certainly not satisfy the court, and had the change required been one that could have been evidenced in a short period of time, it is unlikely that the care proceedings would have concluded with a Care Order in any event.
Attempts to return the matter back to court too quickly after the care proceedings conclude are likely to result in failure. Although formal permission from the court is not required to apply to discharge a Care Order, the court may be quick to dismiss an application with little merit at the first hearing, without the need for further assessment or consideration. Where a discharge application has been refused, the applicant is then prohibited from making any further applications of this kind for the next six months without first obtaining permission of the court. Even after the six-month period expires, repeat applications are unlikely to be considered favourably by the court, unless made with exceptionally good reason.
Although it is important to ensure that the application is not made too quickly, parents should also be wary of the dangers of waiting too long to make the application. In seeking the child’s return, it will be a feature of the parent’s case that the child is no longer in their care and has not been for some time, whether the removal was made at the conclusion of the care proceedings or at an earlier stage. During this time, the child will often have developed a strong relationship with their foster carer and settled well into their foster placement. The impact on the child of disrupting the foster placement is commonly raised as a concern by local authorities and guardians in seeking to argue that it is not in the child’s best interests to return to the parent’s care. The longer the child has been placed with the foster carer, the greater the impact is likely to be and the harder it may be to succeed in discharging the Care Order.
Whilst such arguments may continue to be raised, clear guidance was given by the court as to the weight to be afforded to arguments of this nature. When approving an application to discharge a Care Order, Mr Justice Mostyn in GM v Carmarthenshire County Council & LLM [2018] EWFC 36, [2018] 3 FCR 170, [2018] 2 FLR 1375, observed as follows;
“The very premise of section 39 is that the parent will not have been caring for his or her child for an appreciable period but that someone else will have been, and with whom the child would, no doubt, have formed a strong attachment. Yet, the stance of the local authority and of the guardian in this case is that the strength of the attachment… coupled with the lack of a track-record of hands-on parenting by the mother…of themselves mean that her application should fail. If this approach be right then in my judgment it would rob section 39 of any meaningful content.”
Although Mr Justice Mostyn expressed a clear view, there may still be some cases in which the deemed harm to the child in removing them from their foster placement would be so great as to prevent rehabilitation to the parent’s care being considered in their best interests.
A further concern in waiting too long to make the application is that the parent’s contact with the child may be significantly reduced so as to prevent the child having any meaningful relationship with the parent by the time the application is brought. This is particularly true of children who were very young at the time the Care Order was made. In circumstances where the parent has a very limited relationship with the child, it will make it significantly harder for the discharge application to succeed. When being faced with a significant reduction in contact, this may be an appropriate time to issue the discharge application, together with an application for contact with a child in care.
It is evident that there a number of factors for parents to consider when applying to discharge a Care Order and much will turn on the individual circumstances of each case, but in these kinds of applications, one thing is clear – timing really can be everything.
If you require advice about when you should apply to discharge a Care Order and whether your case has sufficient merit to obtain legal aid to be represented on an application, please contact the Child Care Department on 020 7228 0017. The Child Care Department at Hanne & Co has a team of experienced solicitors who specialise in these matters and will be able to advise you based on the specific facts of your case.
