Crown Chambers


Public Law Update: May 2021


Index of Cases

  1. Re TT (Children: Discharge of Care Order) [2021] EWCA Civ 742 – The Court of Appeal sets out the correct test to be applied when considering an application to discharge a care order –
  1. Re S (A Child) [2021] EWCA Civ 605 – The Court of Appeal orders a re-hearing of a mother’s application for leave to oppose adoption on the basis of procedural unfairness –

  1. Re F & G (Discharge of Special Guardianship Order) [2021] EWCA Civ 622 – The Court of Appeal confirmed that a special guardianship order can co-exist with a care order –
  2. Re TT (Children: Discharge of Care Order) [2021] EWCA Civ 742

Judgment of Lord Justice Peter Jackson.

The Court of Appeal considered an appeal following the refusal of a mother’s application to discharge care orders in relation to 3 of her 6 children. The Court of Appeal clarified the legal principles to be applied when considering an application to discharge a care order.

Background: The mother (M) of 6 young children had appealed from the refusal of her application to discharge the care orders in respect of 3 of the children, now aged 6, 5 and 4. In doing so, M raised arguments about the correct application of s 39 Children act 1989. The appeal was dismissed.

M, in her mid-20s, does not have care of any of her 6 children. The children have 4 different fathers. In September 2016, the eldest child was taken to hospital with serious injuries which were found to be the result of sexual abuse by the father (F) of 3 of the children. The children went to live with the MGM, and were later joined by the M.

In June 2017, care orders were made and the M signed a safety plan, making it clear there was to be no contact between the children and F. The LA discovered that the M and F were continuing their relationship. In June 2018 the LA gave notice of their intention to remove the children. The LA were also informed that the family were preparing to abscond to Spain, and so the children were removed into foster care.

In July 2018, M issued an application for the discharge of the care orders, with the children returning to her care. On 27 November 2020, that application was refused by HHJ Whybrow following an 8 day hearing. He also made an order for the eldest child to remain living with her own father and that order was not the subject of appeal.

The M sought permission to appeal, which was granted. The Court of Appeal was clear that there was doubtful prospect of success, but that this was an opportunity to clarify the decision in GM v Carmarthenshire CC [2018] EWFC 36.

Since the making of the care orders, the M has gone on to have 2 further children, born in September 2019 and January 2021. There are ongoing care proceedings in relation to both children, who have different fathers. In April 2021, the F was convicted of serious sexual offences against the eldest child and is awaiting sentencing.

Grounds of appeal:

  1. The trial Judge incorrectly stated the law and misdirected himself as to the test for a discharge of a care order,
  2. The Judge wrongly stated that the test applied made no difference to the outcome, and
  3. The Judge took an incorrect approach to the question of risk.

Section 39, which is situated in Part IV of the Act, relevantly provides:

39 Discharge and variation etc. of care orders and supervision orders.

(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) –(3B) …

(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.”

CA: the effect of s39, read alongside s1, is that the court may discharge a care order on the application of an entitled applicant. Or, it may replace it with a supervision order, in which case there is no need for the s31(2) criteria to be crossed. As the decision concerns a question of upbringing, the child’s welfare is paramount. As the court is considering whether to vary or discharge an order under Part IV, the court shall have regard to the factors in the welfare checklist. As the court is considering whether to make an order under the Act, it shall not make the order unless to do so would be better for the child than making no order at all.

The Court of appeal set down the legal principles to be applied when considering the discharge of a care order:

  1. The decision must be made in accordance with s1 CA 1989, 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 must be considered and given appropriate weight.
  2. Once the welfare 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 Convention rights is necessary and proportionate.
  3. 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 underpinned 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.
  4. The welfare evaluation is made at the time of the decision. The s. 31(2) threshold, applicable to the making of a 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.

  1. Re S (A Child) [2021] EWCA Civ 605

Judgment of Lady Justice Macur.

The Court of Appeal ordered a rehearing of a mother’s application for leave to oppose an adoption application on the basis of procedural unfairness. The Local Authority had failed to ensure that the Mother received all necessary material. 

Background: A Child, Z, and 4 older siblings were made the subject of care orders on 1 February 2019 by order of HHJ Heaton QC. Z was also made the subject of a placement order on the same day. Z’s last contact with her mother (M) took place in March 2019. The M attempted to appeal the placement orders but the application was dismissed in July 2019, due to breach of procedural requirements. An attempt to reinstate the appeal was dismissed on 22 October 2020.

In September 2019, Z was placed for adoption. In November 2019, an application under s24 Adoption and Children Act 2002 for leave to revoke the placement order was dismissed by HHJ Heaton QC. The adopters gave notice of their intention to adopt. The M applied for leave to oppose the adoption under s47(5) ACA 2002. HHJ Jack refused the M’s application on the basis that, although she had made some changes, they pre-dated the hearing in November 2019. HHJ Jack did not have the judgments from either March 2019 nor November 2019. The Judge had made assumptions ab out the way in which HHJ Heaton QC had assessed the changes.

Macur LJ concluded that there had been a failure to ensure that HHJ Jack had transcripts of HHJ Heaton QC’s judgments. That resulted in there being no reliable benchmark against which the Court was able to measure change. The Local Authority suggested that it was the M’s responsibility to evidence this (a litigant in person). The Court of Appeal rejected that notion. The M had not been provided with the LA’s social work Annexe A report, nor had the Court of Appeal.

The case made it clear that the profound effects of adoption places significant responsibilities on Local Authorities to ensure that requirements of procedural fairness are satisfied. A failure to be proactive has serious consequences for parents, prospective adopters and the child. Authorities are to obtain transcripts of judgments from care and placement proceedings when proceedings are incomplete and the care plan is one of adoption, thereby expediating any consideration of appeals or applications for leave to oppose. The possibility of disclosure of relevant material from Annexe A reports should also be considered when the s47(5) application is received.

A re-hearing of the M’s application for leave to oppose was directed.

  1. Re F & G (Discharge of Special Guardianship Order) [2021] EWCA Civ 622

Judgment of Lord Justice Baker.

The Court of Appeal confirmed that a special guardianship order can coexist with a care order. The case was remitted for re-hearing in relation to the issue of whether the SGO in this case should be discharged.

Background: Twin girls, F and G, were born in 2010. Their mother (M) formed a relationship with K during the course of her pregnancy. The twin girls grew up incorrectly believing K to be their biological father. They had no contact with their true biological father. M and K later married, divorcing in 2017. Following the divorce, M commenced a new relationship with a violent male, causing the Local Authority to issue proceedings. In April 2019, the girls were placed with K under interim care orders.

K was assessed as having an extremely low cognitive ability and, although he coped well with the children, he required considerable support. An SGO assessment was positive – despite his learning disability he had successfully evidence that he could meet the children’s emotional needs.  In April 2020, at the final hearing of the care proceedings, all parties agreed to the making of an SGO in favour of K and a full care order to the Local Authority. No judgment was delivered to provide a context or rationale to this decision.

A few weeks after the making of the final orders, the placement with K broke down. The LA gave notice of their intention to remove the children into foster care. K applied to the court to discharge the care orders. He also applied for an injunction to prevent the removal of the girls from his care. The application for the injunctive relief was unsuccessful, the girls were placed into foster care.

Following the removal of the children, the LA applied for discharge of the SGO on the basis that K no longer required PR. By the time of the final hearing, the LA and CG thought the SGO should remain in place, despite there being no plan to return to K’s care. Despite not having the necessary permission, M applied to discharge the SGO.

The Judge did not hear submissions as to whether the test for permission was met. Instead, he heard arguments regarding whether the SGO should remain in place on the basis of the court’s powers pursuant to s14D(2) CA 1989. He refused to discharge the SGO but attached a condition limiting K’s power to seek information from third parties while a care order was in force.

The appeal: the first ground for appeal was that SGOs and care orders cannot co-exist in law. This was rejected by the Court of Appeal, as the CA 1989 clearly allows for that situation:

  1. S91 makes it clear that a SGO is not automatically discharged by the making of a final care order,
  2. S33(3)(b)(i) allows a LA to determine the extent to which a ‘parent, guardian or special guardian’ may exercise PR when a care order is in force,
  3. S14D entitles a LA designated in a care order to apply for the discharge of a SGO,
  4. SGOs are intended to provide long-term support for the child and it would be contrary to the purpose of special guardianship if SGOs came to an end automatically on the making of a care order.

The second ground of appeal was that the Judge was wrong to refuse to discharge the SGO. The Court of Appeal remitted this issue for re-hearing. Legal arguments are expected regarding whether an order for contact under s34(2), and the LA amending its care plan to include an express provision that K falls within the category of relevant persons specified in s22(4), would be sufficient.

The third ground of appeal was that the conditions imposed on the SGO was wrong in law and principle, did not require consideration given the remittance for rehearing.

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