P (Children), Re

In an application concerning discharge of a recently made care order, the court must apply the paramountcy principle and have regard to the statutory checklist. Family proceedings do not ordinarily impose a formal burden of proof or onus, although an applicant seeking discharge of a recent care order will generally need to demonstrate a material change of circumstances. The welfare of a child may require attention to the well-being of a primary carer, because an exhausted or embattled carer’s capacity to provide consistent care is diminished. Decisions based substantially on findings of fact and assessment of witnesses are primarily for the trial judge. Contact arrangements and the progression of contact should ordinarily be addressed by further application to the trial court.

The father applied to Bournemouth County Court for discharge of a recently made care order. His Honour Judge Bond dismissed the application on 13 December 2000 after assessing disputed factual evidence, expert evidence concerning the father’s personality, and the mother’s condition as primary carer. The order also restricted further applications by the father for one year and regulated contact, including supervised meetings for assessment.

The father’s renewed application for permission to appeal followed refusal on paper. He argued that the judge had relied too heavily on Re M D [1994] FLR 489, given insufficient weight to Re S, wrongly imposed an onus, mishandled expert evidence, considered the mother’s needs, and made inappropriate orders concerning further applications and contact.

Application for permission to appeal refused. Lord Justice Thorpe held as follows.

1. The judge had correctly summarised the governing approach to an application to discharge a care order: the court must apply the paramountcy principle and have regard to the checklist. His reference to an onus was treated as loose language. Family proceedings generally have little place for formal onuses, but an applicant seeking discharge of a recently made care order inevitably needs to show some material change of circumstances. The court declined to give further guidance because the application was not a suitable vehicle.
2. The dismissal was manifestly well-founded on the judge’s findings of disputed fact and his assessment of the witnesses. The expert evidence concerning the father’s personality was carefully considered, and the judge was entitled to accept Dr Shawcross’s measured and fair analysis that the father’s personality restricted his ability to deal with relationship problems.
3. Although the father was not found to be an abuser, the judge was entitled to consider the mother’s condition. Attention to the needs of a primary carer may be an indirect but important way of addressing the child’s welfare, since the carer’s capacity to provide consistent care depends upon her well-being.
4. The one-year restriction on further applications was a discretionary order in an exceptional case. The judge was entitled to find an enmeshed parental relationship and a real risk that the mother would otherwise be subjected to unacceptable strain.
5. Any progression in contact was for determination by the trial court on a further application. The order already provided for supervised meetings for assessment, and future contact could be reviewed as part of the evolutionary process of case management.

The renewed application was dismissed. The applicant’s costs were subject to community legal funding assessment.

• Court of Appeal (Civil Division): permission to appeal was refused on paper on 3 August 2001 and, after an oral renewal, refused by Lord Justice Thorpe on 11 September 2001.
• Bournemouth County Court: His Honour Judge Bond dismissed the father’s application to discharge the care order on 13 December 2000.