C (A Child)

On an application to discharge a care order, the court exercises a discretionary welfare jurisdiction in which the child’s welfare is paramount. Welfare is a rounded assessment. It may include whether the order can be given practical effect, the statutory duties imposed on the local authority while it remains in force, and any prospective benefit of retaining the order to secure leaving-care support.

A child who has in fact lived with a parent for six continuous months is excluded by regulation 4(5) of the Children (Leaving Care) (England) Regulations 2001 from being a relevant child. The exclusion does not depend on the local authority having formally placed the child with that parent.

The mother appealed from His Honour Judge Rylance’s decision in the Guildford County Court to discharge a care order concerning J, then nearly 16. J had repeatedly absconded from local-authority placements and had lived with his mother since October 2008. The local authority and guardian supported discharge because the order could not be effectively implemented.

Shortly before the hearing, the mother sought to defer discharge until after J’s sixteenth birthday. Her purpose was to preserve potential entitlement to support under the leaving-care regime. The judge refused to defer the matter and discharged the order. The appeal concerned whether welfare required the order to continue to obtain that potential benefit.

Disposition

Leave to appeal was granted, but the appeal was dismissed. The court unanimously held that the judge had not erred in discharging the care order.

1. Under section 39 of the Children Act 1989, the discharge decision is discretionary and is governed by the paramount-welfare principle in section 1. Re S (Discharge of Care Order) [1995] 2 FLR 639 correctly stated that approach. The applicant must establish the case for discharge, but welfare is not determined by merely listing potential benefits.

2. The judge could properly take account of the order’s lack of practical effect. Although a difficult or uncooperative child may particularly need protection, this order generated conflict and could not achieve the therapeutic placement considered necessary. The local authority’s inability lawfully to permit J to remain with his mother while retaining the order was a relevant, though not determinative, welfare consideration. Its duties under sections 22(3) and 23(4)–(5), and the placement regulations, could not be met on the facts found.

3. The possible benefits of leaving-care support had to be balanced, and a care order might in another case properly be retained for that reason. Here, however, J was excluded in any event. Regulation 4(5) of the Children (Leaving Care) (England) Regulations 2001 asks whether the child has in fact lived with a parent for six continuous months. It does not require a formal local-authority placement. J had lived with his mother for the requisite period and was therefore not a relevant child.

4. The discharge jurisdiction must not be used to punish a child. The judge’s comments about J accepting benefits while rejecting authority did not amount to punishment and did not undermine the proper welfare basis for the decision.

• Court of Appeal (Civil Division): Leave to appeal was granted and the appeal against discharge of the care order was dismissed: [2009] EWCA Civ 955.
• Guildford County Court: His Honour Judge Rylance discharged the care order in April 2009. No citation was stated.