TT (Children)

On an application to discharge a care order under Children Act 1989, section 39, the governing question is the child’s welfare. The welfare evaluation is at large, is made at the date of decision, and requires consideration of the statutory welfare checklist. The applicant must bring evidence showing that discharge serves the child’s interests.

The court must then cross-check the welfare outcome for necessity and proportionality under article 8. That is not a separate test of necessity, nor does it create a presumption of discharge. The section 31 threshold is irrelevant to discharge applications. The adoption formulation that “nothing else will do” does not apply to an ordinary care order or to its discharge.

The mother appealed against HHJ Whybrow’s refusal, following an eight-day hearing, to discharge care orders relating to three of her six children. The children had entered care after the mother continued a relationship with the father despite a safety plan following serious sexual abuse of the eldest child.

The judge found that the mother had undertaken useful work but that her repeated dishonesty, vulnerability and lack of reliable family protection left a real risk of serious harm that could not be safely managed. He approved the local authority’s plan for the children to remain in long-term foster care.

Permission was granted principally to consider whether GM v Carmarthenshire County Council stated the correct approach to section 39 applications. The appeal also challenged the judge’s assessment of present risk and his treatment of proportionality.

1. Appeal dismissed. The judge’s factual assessment of present risk was open to him. He did not require an entirely risk-free environment by referring to the children’s “right to be safe”. Read fairly, he assessed the type, likelihood and gravity of the potential harm, and the absence of effective mitigating measures.

2. The combined effect of sections 39 and 1 of the Children Act 1989 is that a discharge application is determined by the child’s paramount welfare. The evaluation is at large and must take account of the welfare checklist. It is made when the application is decided. The applicant must adduce evidence to make a case that discharge is in the child’s interests, while the earlier findings remain relevant with weight that varies between cases.

3. Section 31(2) has no role in a discharge application. The local authority need not re-prove the original threshold, and the applicant need not prove that it no longer exists. Harm and risk of harm are welfare considerations. Section 39(5), permitting substitution of a supervision order without proof of threshold, confirms that conclusion.

4. The welfare decision must be cross-checked to ensure that any interference with Convention rights is necessary and proportionate. That cross-check does not displace welfare as the fundamental test or introduce a freestanding test of necessity. It is a safeguard against an insufficiently balanced welfare analysis.

5. The proposition that “nothing else will do” is confined to non-consensual adoption and other orders involving severance of the parental relationship. It does not govern a care order with continuing parental responsibility and contact, still less its discharge.

6. GM v Carmarthenshire County Council should not be followed. Its near-threshold approach, its suggestion of a presumption favouring discharge unless exceptional circumstances are shown, and its invocation of a very strict test were inconsistent with the statutory welfare exercise. Its general observations rejecting attachment theory and the possible admissibility of expert attachment evidence also could not stand. Although that issue did not arise directly, the court observed that all relationships important to a child require appropriate weight and that expert advice may be needed in difficult cases.

1. Court of Appeal (Civil Division). The mother’s appeal was dismissed: [2021] EWCA Civ 742.

2. Family Court at Kingston-upon-Hull. On 27 November 2020, HHJ Whybrow refused the mother’s application to discharge the care orders concerning three children, after an eight-day hearing.

3. Earlier proceedings. Care orders were made in June 2017. The children were removed into foster care in June 2018.