Discharge of care orders: filling the evidence gap

By Jo Staines, Jessica Roy and Beth Stone

While a great deal is known about the process, experiences and outcomes for children who are in care, we know very little about how, when and why care orders are discharged.

Understanding more about the discharge of care orders is vital – whether a care order remains in place has significant implications for children and their families.

Discharging a care order prematurely risks the child and family not receiving necessary support and the child’s welfare not being safeguarded; not discharging the order risks the over-surveillance of families and uses resources unnecessarily.

Our study, funded by the Nuffield Foundation, aimed to fill this evidence gap in relation to England and Wales. The research involved analysis of national data on discharge applications and children’s records, and interviews with professionals including social workers, judges and guardians.

Who applies for discharge?

A local authority, parent or child can apply for discharge of a care order, and carers can seek discharge by applying for a special guardianship order.

Analysis of national data showed that the majority (around two-thirds) of discharge applications were made by the local authority, with the remainder mainly being submitted by parents. Some interviewees reported that parents did not know that they were able to apply for discharge:

“It’s something that local authority leads…. the majority of our parents wouldn’t know that they would have that capacity, that they have that kind of power… they automatically see the care order and know we’re in charge, we call the shots. The care order is discharged when you [the LA] say it’s ready to be…” (social worker)​

Very few children made their own applications for discharge, despite having the right to do so.

How many care orders are discharged?

The research found that applications for discharge have substantially increased in the past decade; for example, in England, they rose from 71 in 2010 to 1,589 in 2019.

Proportionately, the number of discharge applications has increased at a much greater rate than the increase in care orders, which may reflect proactive moves to reduce the number of children in care in some areas.

Overall discharge applications tend to be granted, with national data showing that 67% of applications in England were successful.

However, the outcome was significantly dependent on who made the application, with local authority applications being far more likely to be granted than those made by parents.

Selecting cases for discharge: stability and risk aversion

In the wider context of workload and resourcing pressures, care order applications tend to take priority over discharge. Professionals noted a general disincentive to discharge care orders because of the assumption that children in care are safe and settled.

Much has been written about the tendency towards risk aversion in children’s social work and it is likely that delays in discharge are, at least partly, a symptom of this. Discharging a care order may disrupt the child’s ‘known’ safety and care arrangements potentially creating risk of harm.  This can lead to children remaining on care orders that are no longer proportionate.

“If our job is keeping kids safe, they’re in care they’re on a care order, brilliant. And so, no, I don’t think in practice we do think ‘is this now relevant all the time and do we need to change the legal order’? I don’t think we do, and I think part of that is because for social workers it’s such an effort to get it.” ​(IRO) 

Many professionals believed that getting a care order in place was hard but getting one discharged was harder, due to the amount of paperwork and evidence needed.

While gathering evidence could delay submitting a discharge application, its omission risked prolonging proceedings. This was an issue when aspects of the original care plan had not been carried out, regardless of their relevance to the child’s current situation.

The guardian’s influence

The recommendations made by the guardian were highly influential, being followed by the court in over 99% of the discharge records studied.

However, while social workers were often in agreement with the guardian, there were concerns that the guardian held the ‘trump card’ and was able to override the social workers’ opinions.

There was only one case where the guardian and the social worker disagreed and the court sided with the social worker.

Some professionals suggested that courts and guardians may have ‘lost faith’ in social workers, rather than recognising social workers’ expertise and knowledge of specific families.

There was evidence to suggest that professionals had different understandings of the thresholds of ‘good enough’ care, which could lead to disagreement over discharge and prolong proceedings. Interviewees reported the need for more consistent understanding of thresholds of good enough care, while also noting differences in the standards parents were held to based on whether their children were on a care order.

“You’ve got children on care orders at home with minor concerns coming up, which wouldn’t hit this threshold over here [for a care order]. But because they’re already on a care order, and those concerns come up, the social workers like, ‘oh, we can’t discharge’, and it’s like the threshold doesn’t seem to be an equal playing field because the care order’s already in place, so that’s something as IROs we are tackling quite a bit…” (IRO)

Children’s preferences and involvement

When asked, children’s views appeared to influence the discharge outcome. However, the children’s records indicated that only a third had been asked their view on discharge​.

Guardians were concerned that involving already ‘damaged’ children could ‘make the situation worse’ and were often wary of talking directly to them, electing to observe children’s behaviour instead.

“You have to do it on a case-by-case basis… it’s not my job to go in and to make the situation worse. My job is to try to help the court, and to reflect what the children feel, but not to destabilise them…” (guardian)

Interviewed social workers felt they knew the children better than other professionals and should have more input on decisions regarding child involvement​. However, there were only 18 cases in the sample where it was clear there was consistency of social worker between care order and discharge. By contrast, guardians who oversaw the original care order were reappointed in 69% of cases.

Recommendations

A pre-proceedings process, modelled on that for care proceedings, should be introduced for discharge applications. This would ensure that parents and carers have independent legal advice about the case for discharge and its legal effects, a plan for post-discharge support and an opportunity to discuss (and, as far as possible, resolve) concerns about proposed care and contact arrangements. This would also help to address delays to proceedings and encourage collaboration between professionals.

Clear and accessible explanations of the discharge process are needed for parents and children, including those who may wish to make their own application. Children have the right to be involved in matters affecting them and any decision not to talk to a child should be made jointly between professionals, balancing the child’s right to be involved and what is in their best interests.

The research identified excellent practice in some areas but this was not consistent.

At a local level, local authorities should ensure that social workers have access to expertise in making discharge applications to address issues of delay and drift. At a national level, organisations need to proactively share best practice in identifying and progressing cases for discharge.

The collaborative development of cross-discipline policy on thresholds for discharge may help reduce national and regional variations in outcomes and delays to discharge proceedings.

Dr Jo Staines is associate professor in youth justice and child welfare, Dr Jessica Roy is senior lecturer and Dr Beth Stone is lecturer at the University of Bristol.

The full research team also included Judith Masson, Gillian Macdonald, Ludivine Garside and Helen Hodges.

The project has been funded by the Nuffield Foundation, but the views expressed are those of the authors and not necessarily those of the foundation.