The combined effect of sections 1 and 39 of the Act is that on application of an entitled applicant the court may discharge a care order or replace it with a supervision order, in which case there is no requirement for the s 31(2) threshold to be crossed (the threshold for making a care or supervision order – significant harm). As the decision concerns a question of upbringing, the child’s welfare is the court’s paramount consideration, and particular regard is to be given to the factors in the welfare checklist in s1(3). The court shall not make the order unless to do so would be better for the child than making no order. Provisions of the Act must, so far as is possible to do so, be read and given effect in a way which is compatible with rights protected by Arts 3 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950
The recent case of TT (Children: Discharge of Care Order), which was heard following leave to appeal being granted, on the basis, not on the prospect of success, but the compelling reason to hear the appeal, was to give the opportunity to correct a decision in GM v Carmarthenshire County Council & LLM EWFC 36  2 FLR 1375. This other case set out the test to be applied in an application under s 39 of the Children Act 1989 to discharge a care order
TT (Children: Discharge of Care Order)  EWCA Civ 742.
The case, in brief, concerned an application by a Mother who had children by different fathers, and the eldest was found in 2016 to have been abused by the Father of the three younger children aged 6, 5 and 4. Care Orders were made in 2017 with children being placed with the maternal grandmother and the Mother joining them. Further information came to light that the Mother was continuing her relationship with the Father and the Local Authority again issued proceedings and gave notice to remove the children into foster care. The Mother initially applied to discharge the care orders in June 2018, but this trial was seriously delayed, not being heard until November 2020, whereupon the Judge refused the application. The Mother then was granted leave to appeal.
The appeal was dismissed: However, the Appeal court took the opportunity to set out the legal principles and authorities clearly when a court is considering an application to discharge a care order:
- The decision must be made in accordance with s 1 of the Act, by which the child’s welfare is the court’s paramount consideration. The welfare evaluation is at large and the relevant factors in the welfare checklist in s1(3) must be considered and given appropriate weight.
- Once the welfare checklist evaluation has been carried out, the court will cross-check the outcome to ensure that it will be exercising its powers in such a way that any interference with Human Rights Convention is necessary and proportionate
- The applicant must make out a case for the discharge of the care order by bringing forward evidence to show that this would be in the interests of the child. The findings of fact that originally justified the making of the care order will be relevant to the court’s assessment, but the weight to be given to them will vary from case to case.
- The welfare checklist evaluation is made at the time of the decision. The s 31(2) threshold, applicable to the making of the care order, is of no relevance to an application for its discharge. The Local Authority does not have to re-prove the threshold and the applicant does not have to prove that it no longer applies. Any questions of harm and risk of harm form part of the overall welfare evaluation.
Having set out in this judgment succinctly and definitively, the principles to be applied in an application to discharge a care order, the court went on to outline that the approach to s. 39 which had been adopted in GM v Carmarthenshire County Council & LLM EWFC 36  2 FLR 1375 had been ‘misleading’ and ‘unhelpful’ in suggesting that ‘something close’ to a threshold applied to discharge of a care order. The construct of a ‘near threshold’ was imprecise, did not fit into any statutory framework and distracted from a full and balanced welfare evaluation and proportionality check. The irrelevance of thresholds was also evident from s 39 (5) which allows for the making of a supervision order without proof of thresholds. It therefore concluded that the approach in GM was wrong and should not be followed.
Please feel free to contact Chambers if you want any further advice or guidance regarding the Discharge of a Care Order and a member of Chambers will be available to assist