Mother’s application to discharge a care order is granted

Children|Family Law|June 19th 2018

“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.”

The full judgment can be read here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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Comments(35)

  1. HA says:

    I need advise asap on how to start a discharge of care order as social care are failing my son massively

    • Kate Nestor says:

      Thanks for your comment. I have passed your details to our Client Care team who will be in touch. Kind regards,

  2. Shan says:

    I am due back in court January 2019.
    I am grieving for my child.
    I work for the NHS and cannot believe how inhumanly the system have treated me and my child.

  3. sarah says:

    is it free to discharge a care order and would I be entitled to a solicitor?

  4. Iain Derbyshire says:

    I desperately need help to apply to discharge a care order. The LA have acted appallingly and the treatment of my children and myself is inhumane.
    I am autistic yet the LA have shown no regard to this and certainly offered no support before the horrific removal of my children in Feb’17.

  5. Gemruby says:

    Hi
    Have you got.the help you need now? How awful for you. Do you have a solicitor? Surely you are entitlef to a free solicitor if the children ha e been removed? Citizen advice should be able to help.

  6. Sonam Begum says:

    Hi
    Please could you forward my details to the client care team as I also need support and assistance in discharging a full care order from 2017. Furthermore, my previous appointed solicitors have failed to even contact LA and request for legal aid on my behalf. 3 years and 3 solicitor firms later still no progress. I would be very grateful.
    Kind regards.

  7. JH says:

    Hi. Please can you contact me regarding revoking a care order issued a year ago? My child has been in foster care for 2 years but substantial changes have been made and he desperately wants to come home. His wishes are not being listened to at all. Thank you.

  8. sarah brock says:

    can someone contact me please i urgently need help to stop an adoption order and a care order. thanks

  9. Amy Grinter says:

    I need advise asap on how to start a discharge of care order as social care are failing my older son massively, and all my children wish to come home, but the social work team are hiding my children views. It’s not recorded anywhere despite them saying so many times during each contact and in the psychologist report.
    Assessment was by the team that were caught manufacturing evidence in Portsmouth

  10. Ann Cornes says:

    Hi I need some advice my children where put on care order with my mother in law in Feb 19 how do I go about discharging this order desperate to get my babies home

    • Kate Nestor says:

      Thanks for your query. I have passed it onto our Client Care Team who will put you in touch with one of our lawyers. Kind regards,

  11. Elimira Davies says:

    Hi my children have been removed from my care since 2/10/18, following my daughter’s faulty allegations that were supported by the father. I have spent unaffordable amount of money for a solicitor who did”zero” in my defence in fact helped in directly the LA by not providing me advice of my rights. The children and I have been repressed and discriminated without even been given the right to know our rights. Although my daughter has withdrawn her allegations, the Judge didn’t believe her and relied on the SW and GAl opinions. As a result Recently the Court has granted Care Order. I’ve been living in a nightmare for the last 9 months but the most important is that my children are suffering an enormous pain and emotional harassment by their father and step mother , having been placed by LA to live in their fathers house.
    Please advice what could be done so that my children are returned to my care .The care plan is unbearable- to see my girls only twice per month for 2 hours is cruel and inhuman for us all?

    Thank you!

    • Kate Nestor says:

      Thanks for your query. I have passed it onto our Client Care Team who will put you in touch with one of our lawyers. Kind regards,

  12. Michelle C says:

    Please can the client care team contact me with regards to advice on discharging a final care order on a case that has been going on for 20 months thank you

  13. Sally nwamu says:

    I’m currently a registered nurse for 16 years now. My older son has finished university and has graduated, my younger son is now 14 and has been in care with a foster carer since he was two and half years old against my will. I’ve tried so many times to get him out as he’s health is deteriorating as a result of maltreatment , hence my son’s out burst of anger on his school, his foster carer and elsewhere. The foster carer has a young daughter Selina. Who bully him and one occasion, I witnessed in the family centre a few days towards Christmas in 2017 where I had contact with my son, towards the end, on his way to leave, the foster carer daughter his head on the wall and push him . I tried to call the police but the police did not come out for me and my son. I was told, it’s thè local authority problem domestic and not a police matter. I did not want my son to go back there but he was force by the local authority to go back to the foster carer and her daughter. As a result these abuse is affecting my son health mentally and has starting medication. I’ve tried to speak to the local authority but did not show concern at my concerns. I really want a discharge of care order and want my son back to me. I feel my son is suffering in care. Please help me. I’m desperate to get my son out from there. Thanks sally

    • Kate Nestor says:

      Sorry to hear about your situation. Your details have been passed to our client care who will get you in touch with one of our lawyers. Kind regards,

  14. Maria walker says:

    My grandchildren have been in foster care for 16 months and they have been suffering,they got taken because of my daughter going through a violent relationship,they refuse to give them to me because they think I failed to protect them when I didnt even know anything because my daughter was too scared to say anything to anyone because her ex partner would kill her.
    They also failed me because of my daughter history as being a challenging child so I asked for help to keep her safe.
    She got diagnosed with adhd,odd,add,learning difficulties and bipolar in remission.
    They are saying it was my parenting and shes been missing diagnosed.
    I’ve also got another child who is brought up brilliant no problems.
    They didnt even offer ma a supervision order nothing just took the grandkids and won a placement or for adoption.
    And to top it up,my new grandchild has been taken from birth this september on an interim order.
    I need someone good to help me fight to get my grandchildren back.
    I’ve had to sell my house to fund courts,solicitors,baristers and had no results.
    It’s almost like they all believe the local authorities and it’s wrong.
    My whole family have been ripped apart and I need help asap.

    • Kate Nestor says:

      Sorry to hear about your situation. I have passed your details to our Client Care Team who will be able to put you in touch with a lawyer who can help. Regards,

  15. Yvonne says:

    Hi how do I discharge a care order my kids are being neglected in care they cut big chunks out of her hair social services lied in court thanks

    • Kate Nestor says:

      I have passed your details to our Client Care Team who will be able to put you in touch with a lawyer who can help. Regards,

  16. Stephanie Raine says:

    Hi,

    I applied to discharge a care order. The outscome was unsuccessful but yet locals authority and and independant social worker stated I made significant change. The judge has put in a court order the findings I made significant change but states as my little girl has been there 20 months so no. Even though my little girl wants to come home to myself and her brother. I met the criteria of section 39 to discharge but I have been failed by the courts. Please advise the next steps it was my first discharge, I can take back any time to try again I need advise what’s the next steps as I met the criteria actually they said I made significant changes over and beyond. So how come this can fail? I’m so lost. Any help or advice what to do next.

    • Kate Nestor says:

      I have passed your details to our Client Care Team who will be able to put you in touch with a lawyer who can help. Regards,

  17. Donna says:

    Hi could someone give me some advice please in regard to discharging a care order.thanks

    • Kate Nestor says:

      Sorry to hear about your situation. I have passed your details to our Client Care Team who will be able to put you in touch with a lawyer who can help. Regards,

  18. Janine says:

    I need help to try to discharge a care order can I get legal aid for this & my daughter was only put in due to her complexed needs they have failed my children continuously for several years & the local authoritiy have an ofstead rating of inadequate & no other options were explored, please can someone contact me in this regard ASAP as the local authority have broken the court order continuously & continue to do so & have done since less than a week of it being ordered.

    • Kate Nestor says:

      Sorry to hear about your situation. I have passed your details to our Client Care Team who will be able to put you in touch with a lawyer who can help. Regards,

  19. Rachel says:

    Hiya my brother and sister was put in care in April because the social worker we had lied and made things look bad in the home please please help get my siblings back me,my mum,my stepdad and my older brother are heart broken and my siblings are begging and wanting to come home,they was happy at my home and they loved spending time with the family they are missing us all.is there a way to get them back home ASAP.

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