The Court of Appeal has handed down an important new case in Child Care Law around what the Court must look for when considering discharging a child’s care order. There has not been an appeal case like this for a significant period of time and the Court’s decision makes the test as to when a care order can be discharged much clearer for parents who want to persuade a Court to let their child come out of care and return home, sometimes called reunification or rehabilitation.
Lord Justice Peter Jackson has confirmed that the Court must consider the children’s best interests and their welfare. The Local Authority do not have to prove the children are still at risk of significant harm in their parents’ care, but similarly, parents do not have to prove that they aren’t. However, parents have to introduce evidence that it would be in the children’s best interests to return home, and prove that discharging the order would be better for the children than keeping it in place.
In addition, the Court must consider whether keeping the children in care is necessary and proportionate in light of their human right to respect for their family life. The Court can and should look at the different options for the children to decide which is in their best interest.
If the children have a close bond with the people they have been living with (such as foster carers), this is something the Court should take into account. The Court must look at the impact of any change in circumstances on the children, including any potential attachments to their carer.
This judgment supersedes a previous decision from a High Court Judge that suggested that there was a very strong automatic steer towards children coming home unless there were truly exceptional circumstances. The Court of Appeal has said very clearly that that is not the test; the test is what is in the children’s best interests.
Getting your children back from care is a highly specialist application. In order to be successful, you need to have made significant changes in your life, for a sustained period of time and be able to take responsibility for your previous parenting mistakes. Ultimately, you need to demonstrate that your children’s best interests would be met by being back in your care. These applications can be successful and life-changing if made by the right parent(s), but they require sensitivity and expertise.
Adam Smith is an Associate Solicitor in the Child Care and Legal Aid Children department with a particular interest in applications to Discharge Care Orders and for Contact with Children in Care. If you wish to discuss your own circumstances, please email ats@blasermills.co.uk . The Court of appeal’s judgment can be read here: TT (Children: Discharge of Care Order) [2021] EWCA Civ 742