Children Act 1989, section 39

Discharge and variation etc. of care orders and supervision orders

Part IV Care and Supervision

(1)A care order may be discharged by the court on the application of—

(a)any person who has parental responsibility for the child;

(b)the child himself; or

(c)the local authority designated by the order.

(2)A supervision order may be varied or discharged by the court on the application of—

(a)any person who has parental responsibility for the child;

(b)the child himself; or

(c)the supervisor.

(3)On the application of a person who is not entitled to apply for the order to be discharged, but who is a person with whom the child is living, a supervision order may be varied by the court in so far as it imposes a requirement which affects that person.

F584 (3A)On the application of a person who is not entitled to apply for the order to be discharged, but who is a person to whom an exclusion requirement contained in the order applies, an interim care order may be varied or discharged by the court in so far as it imposes the exclusion requirement.

(3B)Where a power of arrest has been attached to an exclusion requirement of an interim care order, the court may, on the application of any person entitled to apply for the discharge of the order so far as it imposes the exclusion requirement, vary or discharge the order in so far as it confers a power of arrest (whether or not any application has been made to vary or discharge any other provision of the order).

(4)Where a care order is in force with respect to a child the court may, on the application of any person entitled to apply for the order to be discharged, substitute a supervision order for the care order.

(5)When a court is considering whether to substitute one order for another under subsection (4) any provision of this Act which would otherwise require section 31(2) to be satisfied at the time when the proposed order is substituted or made shall be disregarded.

Definitions used in section 39 10

a care order

“a care order” means (subject to section 105(1)) an order under subsection (1)(a) and (except where express provision to the contrary is made) includes an interim care order made under section 38; and

Defined in s.31(11) · see it in the full Act
care order

“care order” has the meaning given by section 31(11) and also includes any order which by or under any enactment has the effect of, or is deemed to be, a care order for the purposes of this Act; and any reference to a child who is in the care of an authority is a reference to a child who is in their care by virtue of a care order;

Defined in s.105(1) · see it in the full Act
the court

(7) For the purposes of this Act “the court” means the High Court or the family court .

Defined in s.92(7) · see it in the full Act
parental responsibility

“parental responsibility” has the meaning given in section 3;

Defined in s.105(1) · see it in the full Act

(1) In this Act “parental responsibility” means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.

Defined in s.3(1) · see it in the full Act
child

16 (1) In this Schedule “child” includes, in any case where an application is made under paragraph 2 or 6 in relation to a person who has reached the age of eighteen, that person.

Defined in Sch.1 para.16(1) · see it in the full Act

“child” means, subject to paragraph 16 of Schedule 1, a person under the age of eighteen;

Defined in s.105(1) · see it in the full Act
local authority

“local authority” means, in relation to England ..., the council of a county, a metropolitan district, a London Borough or the Common Council of the City of London in relation to Wales, the council of a county or a county borough and, in relation to Scotland, a local authority within the meaning of section 1(2) of the Social Work (Scotland) Act 1968 ;

Defined in s.105(1) · see it in the full Act
the order

(a) an order under paragraph 1(2)(a) or (b) for the making or securing of periodical payments in favour of more than one child (“the order") is in force;

Defined in Sch.1 para.6(9) · see it in the full Act
a supervision order

“a supervision order” means an order under subsection (1)(b) and (except where express provision to the contrary is made) includes an interim supervision order made under section 38.

Defined in s.31(11) · see it in the full Act
supervision order

“supervision order” has the meaning given by section 31(11);

Defined in s.105(1) · see it in the full Act
supervisor

“supervised child” and “supervisor”, in relation to a supervision order or an education supervision order, mean respectively the child who is (or is to be) under supervision and the person under whose supervision he is (or is to be) by virtue of the order;

Defined in s.105(1) · see it in the full Act

Cases considering section 39 22

The Father v Worcestershire County Council

[2025] UKSC 1 · 29 January 2025

A person retaining parental responsibility may apply to discharge a care order. Such an application was a suitable alternative remedy which ordinarily precluded judicial review and could provide all the relief sought (see paras [29]-[30]; [85]).

TT (Children)

[2021] EWCA Civ 742 · 20 May 2021

Section 39 confers a discretionary jurisdiction to discharge a care order or substitute a supervision order. The application is determined by welfare, not by a revived care-order threshold. The provision permits a supervision order without proof of threshold. (see paras [21]; [31]; [43])

Surrey County Council v S

[2014] EWCA Civ 601 · 15 May 2014Interprets

The variation jurisdiction was considered together with section 37. It does not make replacement of a supervision order by a care order automatic. (see paras [13]–[14]) This subsection, together with section 39(5), removes the need to re-establish the section 31 threshold when care is replaced by supervision, but not when supervision is replaced by care. (see paras [13]–[14]) Together with section 39(4), this subsection disapplies the threshold requirement for substitution of supervision for care, but not for substitution of care for supervision. (see paras [13]–[14])

2 more judgments, and what each says about section 39, are in the case-law panel in the full Act.

Amendments and notes

2 notes from legislation.gov.uk

Amendments

  1. F584S. 39(3A) and (3B) inserted(1.10.1997) by 1996 c. 27, ss. 52, 67(3), Sch. 6 para.2; S.I. 1997/1892, art. 3

Commencement

  1. I36S. 39 wholly in force at 14.10.1991 see s. 108(2)(3) and S.I. 1991/828, art. 3(2)