NP v South Gloucestershire County Council & Anor

An application to discharge a final care order is distinct from an application concerning implementation of the care plan. Under Children Act 1989, section 39, the court may discharge the order or substitute a supervision order, but cannot substitute an interim care order. Interim orders under section 38 are available only in pending care or supervision proceedings, or following a direction under section 37. Human-rights relief cannot properly be considered without compliance with Family Proceedings Rules 1991, rule 10.26. The child’s welfare remains paramount, and discharge may be refused where the circumstances justifying the care order persist.

The mother sought permission to appeal from HHJ Rutherford’s refusal on 15 September 2005 to discharge a final care order made by consent on 14 December 2004 in respect of her child. The care plan contemplated a further supported mother-and-baby placement, followed by adoption if sufficient progress was not made. The child was removed from the mother’s care on 6 January 2005.

She argued that the care order should have been discharged and replaced by an interim care order, or that the application should have been adjourned to enable human-rights relief to be sought. She also alleged serious procedural irregularity because the judge had not considered the Human Rights Act 1998. The issues concerned the court’s jurisdiction to substitute an interim order, the need for an adjournment, and the procedural requirements for human-rights claims.

1. Permission to appeal refused. HHJ Rutherford had correctly dismissed the application to discharge the care order. Complaints about the local authority’s removal of the child were distinct from the question whether the child’s welfare required the care order to remain in force.
2. Section 39(4) of the Children Act 1989 defined and limited the court’s jurisdiction. On an application to discharge a care order, the only Part IV order that could be substituted under that provision was a supervision order. An interim care order could not be substituted.
3. Section 38(1) permitted interim care or supervision orders only where proceedings on an application for a care or supervision order were adjourned, or where the court gave a direction under section 37(1). Completed care proceedings followed by an application to discharge fell outside both gateways.
4. No adjournment had been sought. The judge had heard three days of evidence and was entitled to make findings on it. There was no good reason, still less an obligation, for him to adjourn the application of his own motion.
5. The alleged serious irregularity was untenable. The mother’s advisers had not issued proceedings under section 7 of the Human Rights Act 1998 or complied with Family Proceedings Rules 1991, rule 10.26(2), requiring the Convention right allegedly infringed, the details of infringement, the relief sought and any declaration of incompatibility to be specified. It would have been wrong for the judge to determine those issues without compliance.
6. Applying section 1 of the Children Act 1989, the child’s welfare was paramount. The risks justifying the care order remained, and a supervision order would have been inadequate. The separate human-rights proceedings were left for determination on their merits.

• Court of Appeal (Civil Division): Permission to appeal was refused. The court upheld HHJ Rutherford’s refusal to discharge the final care order.
• Bristol County Court: HHJ Rutherford dismissed the mother’s application to discharge the care order on 15 September 2005. The order had been made by consent on 14 December 2004.