Discharge of care order.
Court of Appeal (Laws LJ Richards LJ & Hughes LJ)
3 August 2009  EWCA Civ 955
The child, C, was the third of four sons removed from his mother's care as a result of neglect and domestic violence. The mother refused to co-operate with social services and had resisted the making of the care orders. The children were placed in foster care but each of the first two boys had begun to abscond as they grew older. They had returned to their mother's home, where she had resisted all attempts by social services to recover the children or to work with the family. C had followed this pattern of behaviour and was living at home at the age of 15 in opposition to the local authority's care plan. He was vigorously supported by his mother, who applied for discharge of the care order. This application was not opposed by the local authority or by the Children's Guardian, as the care order was not working to protect the welfare of the child.
During the proceedings the mother realised that C would be ineligible for services under the leaving care provisions if the care order was discharged before his 16th birthday (a relevant child will be one who has been looked after for 13 weeks, beginning after the age of 14 and ending after the age of 16) and asked for the care order to remain in force until C was 16.
The judge discharged the care order as it was having no effect and C was vehemently opposed to it. The mother appealed, arguing that it was in the child's best interests that the order remain until he was 16 and that, as C had not been placed at home by the local authority, he would not be ineligible for leaving care services by virtue of Reg 4(5) of the Children (Leaving Care) Regulations 2001 (in which a child ceases to be a relevant child if he or she lives at home for six months).
The mother's appeal would be dismissed. The care order was having no effect on the welfare of the child beyond exposing him to conflict between the local authority and his mother. C would not be entitled to leaving care services even if the care order remained in force as he had been living with a parent for more than six months and was therefore excluded by Reg 4(5). There was no justification for limiting this exclusion to children who had been placed at home by agreement with the local authority.
While the care order remained, the local authority was under a duty to safeguard and promote the child's welfare, but was being prevented from doing so by C's actions. The court held that this was a relevant consideration, although not the only factor that needed to be considered. The court accepted that there would be some cases where a care order should be continued in order to entitle the child to leaving care.
Alexandra Conroy Harris, BAAF's Legal Consultant, prepared these notes
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|Title Annotation:||England and Wales|
|Author:||Harris, Alexandra Conroy|
|Publication:||Adoption & Fostering|
|Date:||Sep 22, 2009|
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