Court of Appeal overturns case law on discharging care orders

The Court of Appeal has overturned case law on the discharge of care orders and made clear that decisions should be made according to the Children Act 1989’s welfare principle.

A 2018 judgment, GM v Carmarthenshire, had said “something close” to the evidence requirement on local authorities in seeking a care order – that a child was suffering, or likely to suffer, significant harm due to the care they being given or through being beyond parental control – also applied when they were defending a parent’s application to discharge it.

In a Court of Appeal ruling handed down last week, TT (Children) [2021], Lord Justice Peter Jackson said this was “not correct and should not be followed”, as was the statement in GM that discharge applications should only be refused in exceptional circumstances. Instead, decisions should be based on the basis of the child’s welfare, according to the checklist set out in section 1 of the Children Act 1989.

This had been made clear in previous case law on discharge orders, including Re S (Discharge of Care Order) [1995] and Re C (Care: Discharge of Care Order) [2009].

However, the Court of Appeal found the judge in GM, Mr Justice Mostyn, had approached section 39 of the Children Act 1989, which deals with discharging care orders, “as if it was untrodden ground” when the decision could have been made using “established principles”.

Principles for discharging care orders

Lord Justice Jackson set out the legal principles when a court is considering an application to discharge a care order as:

1. A welfare evaluation: the child’s welfare is the court’s paramount consideration and the relevant factors in the welfare checklist in section 1 of the Children Act 1989 must be considered and given appropriate weight.
2. Cross-checking the welfare evaluation to see what rights of a parent and/or child under the European Convention on Human Rights may be interfered with, to ensure that any interference is necessary and proportionate.
3. The parent or other applicant must provide evidence to show that discharging the care order would be in the interests of the child. “The findings of fact that underpinned the making of the care order will be relevant to the court’s assessment but the weight to be given to them will vary from case to case.”
4. The section 31(2) ‘threshold’ (that the child is suffering or likely to suffer significant harm) for making a care order has no role in discharge applications, contrary to what Justice Mostyn had said in GM. “The local authority does not have to re-prove the threshold and the applicant does not have to prove that it no longer applies. Any questions of harm and risk of harm form part of the overall welfare evaluation.”

The ruling came in a judgment rejecting a mother’s appeal against a Family Court ruling refusing her application to discharge care orders relating to three of her children. Lord Justice Jackson said he had granted permission to appeal to the mother whose when it was “doubtful” that she had a real prospect of success “but that there was a compelling reason for the appeal to be heard as it offered an opportunity for this court to consider the correctness of the decision in GM”.

Findings on attachment ‘cannot stand’

Lord Justice Jackson also said Mr Justice Mostyn’s findings in GM that attachment theory was not admissible as expert evidence “cannot stand” and that there may be a role for “expert advice about attachment in cases of difficulty”.

Mr Justice Mostyn had criticised the attempted use of attachment theory, submitted in a report by an independent social worker, to justify the child remaining with his foster carers because of the strength of the child’s bond with them, rather than returning home, which the mother wanted.

The judge had described attachment theory as “only a theory” and “a statement of the obvious”. In his view, it was not the “subject of any specific recognised body of expertise governed by recognised standards and rules of conduct” and therefore does not qualify to be admitted as expert evidence.

He also found that if the strength of an attachment to a carer was given significant weight when parents were not in a position to do “hands-on parenting” because the care order was in place, it would make the ability to apply for a care to be discharged “largely meaningless”.

Lord Justice Jackson sought to correct both these points:

“It is one thing to find that a particular witness may not be qualified to give specific evidence about a child’s attachments, but it is another thing to question the validity of attachment theory as a whole or to state that it cannot be admissible in evidence. Nor is it correct to say that, if a child’s attachment to substitute carers is so strong as to lead a court to refuse an application to discharge a care order, that would deprive section 39 of meaning. That approach risks looking at matters from the point of view of the parent at the expense of a rounded assessment of the welfare of the child.”