“If this application does not succeed then we might as well scrap section 39.” So said Mr Justice Mostyn in the course of his judgment in GM v Carmarthenshire County Council & Another.
I don’t normally comment upon judgments in care cases, but this one is a bit different. It concerns a mother’s application to discharge a care order made in February 2016 in relation to her son, ‘L’, who is now eight years old.
The application was made pursuant to section 39 of the Children Act 1989 which, as Mr Justice Mostyn explained, “granted a person with parental responsibility the unfettered right to seek the discharge of a care order.” He went on:
“In granting that right Parliament must be taken to have intended the right to have a meaningful content. Parliament must surely have intended that a parent who had lost a child to care by virtue of unfitness or incapacity must be given the chance to turn his or her life around and to reclaim the child.”
The mother’s application was opposed by the local authority and the child’s guardian. Of their stance Mr Justice Mostyn said this:
“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 developed by L with his foster parents over the 2½ years he has been in their care, coupled with the lack of a track-record of hands-on parenting by the mother and her partner Mr M, of themselves mean that her application should fail. If this approach is right then in my judgment it would rob section 39 of any meaningful content. It would be a largely meaningless provision – a dead letter – accessible, I suppose, only in those cases where the discharge was agreed.”
Further to this, Mr Justice Mostyn pointed out that it is not the business of the state to provide a child with “better” parents than the parents that nature had provided.
He quoted Lord Templeman’s well-known words from the 1988 case Re KD: “The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health is not endangered. Public authorities cannot improve on nature.”
In other words, the state should not deprive a natural parent of the right to bring up his or her child unless it can be shown that the exercise of that right would endanger the child’s moral or physical health.
Mr Justice Mostyn also set out Lady Hale’s famous words from the 2013 Supreme Court case Re B: “the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do.”
I set out the words of Lord Templeman and Lady Hale not just because Mr Justice Mostyn referred to them but also because they are of course of fundamental importance to the whole issue of state intervention in the upbringing of children. They simply cannot be repeated too often.
And so to the case. Unfortunately, I can’t go into much detail as to the background, as Mr Justice Mostyn does not set it out in this judgment, referring instead to earlier judgments which are not, as far as I can tell, freely available online.
One of those judgments is by Mr Justice Mostyn himself from 10 November last year, so the mother’s application was clearly made before then. In that judgment, Mr Justice Mostyn ordered that the mother should have regular contact with L over a six month period so that the quality of her parenting could be assessed. Unfortunately, the foster parents did not fully cooperate with the contact, and the contact did not alter the position of the local authority and the guardian.
However, Mr Justice Mostyn did not find any of the concerns of the local authority to be that significant and, crucially, counsel for the local authority accepted that if the original care proceedings were taking place now then the court would not find that the evidence was sufficient to make a care order. Mr Justice Mostyn took this to be a concession that it could not be said that L’s physical or moral health would be endangered were he to return to live with his mother.
In short, there was no good reason why the mother could not resume the care of her child. Mr Justice Mostyn summarised that the objections to the success of the application were “inconsequential, trivial and insubstantial”.
Accordingly, the application was granted and the care order was discharged, replaced by a one-year supervision order in favour of the local authority, in part to ensure “that there is formal supervision of L’s return to his blood family in view of the inevitable uncertainties that that return will entail.”