TT (Children)

The Court of Appeal dismissed the mother’s appeal against the refusal to discharge care orders for three children. The court reaffirmed that applications under section 39 of the Children Act 1989 are governed by the welfare principle in section 1: the child’s welfare is paramount and the welfare checklist must be applied. The court held that there is no separate or formal threshold test equivalent to section 31(2) to be re-proved on a discharge application and rejected the proposition in GM v Carmarthenshire that a near-threshold or exceptionally strict test applies. The court also confirmed that, after a welfare evaluation, a proportionality cross-check against Convention rights (notably Article 8) is required. On the facts the judge’s findings about the mother’s sustained dishonesty, continuing vulnerability and the realistic prospects of risk to the children justified refusal of discharge and were open to him on the evidence.

Background and parties

• The mother appealed the refusal of her application under section 39 of the Children Act 1989 to discharge care orders in respect of three of her children (now aged about 6, 5 and 4). The care orders had been made in June 2017 after the eldest child was seriously injured by sexual abuse by the father of the three children. The children had been removed to foster care in 2018 after the mother resumed a relationship with that father and other concerns.
• The appeal was from HHJ Whybrow in the Family Court at Kingston-upon-Hull (KH18C10474). Permission to appeal was granted in part by the Court of Appeal on 25 March 2021 and the appeal was heard in May 2021; judgment was handed down on 20 May 2021.

Nature of the application

• The application sought discharge of the care orders so that the three children could return to the mother’s care (or, alternatively, substitution with a supervision order).

Issues before the Court of Appeal

1. Whether the Family Court had applied the correct legal test on an application to discharge a care order, in particular whether a near-threshold or strict "nothing else will do" approach (as articulated in GM v Carmarthenshire) was required.
2. Whether the judge’s risk assessment was legally flawed, specifically whether he failed to assess the mother’s present risk at the date of the hearing and improperly relied on past findings.
3. Whether any different legal approach would have affected the outcome.

Court’s reasoning and outcome

• The court reviewed the statutory framework (section 39 and section 1 Children Act 1989) and the requirement to carry out a welfare evaluation, followed by a proportionality cross-check against Convention rights (Human Rights Act 1998 and Article 8). It summarised relevant authority (including Re S, Re C and other first-instance decisions) and emphasised that the welfare principle, applied at the time of decision, is the fundamental test on a discharge application.
• The Court rejected GM v Carmarthenshire to the extent that it suggested a near-threshold or exceptionally strict test applies to discharge applications. The Court explained that the "nothing else will do" aphorism properly applies to cases of severance (adoption) rather than to ordinary care-order renewal or discharge applications.
• On the facts, the Court held the judge had carefully and properly assessed risk having regard to the mother’s repeated and serious dishonesty, her continuing vulnerability, the lack of reliable family protection, and the insufficiency of mitigation measures. The judge’s conclusion that the care orders should remain in place was open to him and the appeal was dismissed.

Additional factual and procedural matters noted by the court: the proceedings had been significantly delayed; the mother had two further children since the original care orders; the father was later convicted of serious sexual offences against the eldest child.

Appeal dismissed. The Court of Appeal held that the correct legal test for a section 39 discharge application is the welfare test under section 1 of the Children Act 1989, applied at the time of decision, together with a proportionality cross-check against Convention rights. There is no separate requirement to re-prove the section 31(2) threshold or to apply a near-threshold or "very strict" test as suggested in GM v Carmarthenshire. The judge’s detailed welfare and risk assessment, based on the mother’s sustained dishonesty, continuing vulnerability and lack of dependable family safeguards, justified refusal to discharge the care orders and was open to him on the evidence.

Appeal from the Family Court at Kingston-upon-Hull (HHJ Whybrow, KH18C10474). Permission to appeal was granted in part by the Court of Appeal (25 March 2021). The appeal was heard in the Court of Appeal (Civil Division) and decided by Peter Jackson LJ, King LJ and Nicola Davies LJ ([2021] EWCA Civ 742).