Source: How to discharge a care order
If you are in the situation where a care order has been made by the courts you may already be thinking about what your options are now. One of the options available is to discharge the care order.
There are two ways in which a care order can be discharged:
- Expiration of the care order
- Applying to the court to discharge the order
When does a care order expire?
Usually when the child reaches the age of 18. The local authority has a duty to assess and meet the needs of children in care aged 16 and 17, with a view to preparing them to leave care. The local authority has a duty to make a pathway plan when the child turns 16.
The pathway plan sets out advice and support for the child’s future, on the following:
The local authority’s duty does not end when the child turns 18. They have a duty to stay in touch with and assist the child until the age of 21. If the child enters education, employment or training then they will be able to receive the local authority’s support until the age of 25.
Each child will be allocated an advisor who will review the plan on a regular basis. This can be around every 3 – 6 months.
Making an application to the court
Once a care order is made at the final hearing an applicant will have to make a fresh application to the court to discharge the care order.
Who can make an application to the court?
- Any person who has parental responsibility
- The local authority
- The child who was subject to the original care proceedings
What the court considers when deciding whether to discharge the care order
The court will consider what is in the best interests of the child when deciding whether to discharge the care order. The law governs the court to ensure that the child’s welfare is the paramount consideration. The court has to consider the welfare checklist when making a decision.
The person who makes the application will have the burden of proof. This means that they will need to show the court that discharging the care order is in the child’s best interest. The applicant would have to prove to the local authority and the court that their circumstances have changed and that the child should be returned to the parent/carer.
How to persuade the court
The court’s decision to discharge a care order is not lightly decided upon, as with making the care order. The applicant would need to show that the circumstances have changed significantly for the care order to be discharged.
Often such applications to the court are made by a parent of the child.
For example, if one of the local authority’s concerns during the care proceedings was a parent’s substance misuse, the applicant would need to show a significant period of abstinence. In most cases over a year of being abstinent. On top of this, engaging with alcohol/substance misuse services and AA meetings would be looked upon favourably.
Where the local authority’s concerns are a carer’s parenting ability, engaging in parenting courses would be beneficial. This shows the court that the parent is willing to engage with professionals and address the issues raised in the proceedings.
The local authority may have more than one concern. The applicant will have a greater chance of successfully discharging the care order if they address all of the concerns over a long period of time.
The process is neither straight forward nor quick and may, in some cases, take years before the applicant is able to persuasively show that it is in the child’s best interest to discharge the care order.
Outcomes of the application
If the application to discharge is unsuccessful, the child will remain subject to the care order and the local authority will retain their parental responsibility. The applicant is able to apply again to discharge the care order but not within 6 months of the previous application.
If the application is successful then the care order will be discharged and the local authority will no longer have parental responsibility. The child would return to the care of the people with parental responsibility. In some cases the court will make a supervision order. A supervision order will allow the local authority to supervise the child in the parents’ care for up to a year.
The court is also able to make a child arrangements order or a special guardianship order in favour of some other person. E.g. a family member who does not have parental responsibility or the foster carer.
Effect of discharge of a care order
When a care order is made, any private law proceedings orders made for residence, contact or child arrangements will be discharged. However, if the care order is then discharged this would not mean that the previous private law proceedings would apply again. A fresh application for these arrangements would need to be submitted to the court.
Substitution of care orders
The applicant is also able to make an application to substitute the care order for another order, this includes making a supervision order.
The court can make the decision to make a supervision order even if there has been no application for a substitution and an application to discharge the care order was made instead. Again the court is only able to make such a decision if it would be in the interest of the child.
If you would like advice about any of the issues raised in this article please contact us.
Article by Buncy Pankhania
What is a Section 20 Agreement?
A ‘Section 20 Agreement’ is when a social worker from a Local Authority asks you to agree to your child going to live with somebody else, usually one of their foster carers. It is called a ‘Section 20 Agreement’ as the law that allows this is Section 20 of the Children Act 1989.
The law says that a Local Authority must provide a home for a child who lives in their area if they think the child may not be safe living in their current home.
There are many reasons why a child may not be able to stay at home, for example:
- The person who has been caring for the child cannot provide a suitable home;
- There isn’t anyone who has parental responsibility for the child;
- The child has been abandoned.
A local authority cannot provide a home for a child if anyone with parental responsibility objects and can provide a suitable home.
Any person with parental responsibility for a child may at any time remove the child from the home provided by the local authority under this section.
What signing a Section 20 Agreement means:
By signing a Section 20 Agreement you are agreeing to allow your child live somewhere else, usually in foster care, which is arranged by the social worker. In agreeing to s20 you must agree all the plans for your child including when you will have contact with them.
The social worker might ask you to agree to your child living somewhere else if they are worried about your child and would like to work with you to see if they can help you to care for your child and your child returning home to you.
A Section 20 Agreement does not give the Local Authority Parental Responsibility for your child. This remains with you.
You do have a choice about whether to agree to your child going to live somewhere else. There may however be times when the social worker thinks that unless your child lives somewhere else they will not be safe. If this is the case, and you do not agree, the social worker must ask a Judge to order that your child lives elsewhere. The Judge can make either an Emergency Protection Order or an Interim Care Order. Both of which will give the Local Authority Parental Responsibility for your child and enable them to place your child in another home.
A Section 20 Agreement should be a short term arrangement. It should be used to see if improvements can be made for your child to return to your care and if this is not possible the Local Authority must ask the Court to think about where your child should live in the long term.
If you are asked to sign a Section 20 Agreement the social worker must explain to you what it is and why they think it is necessary. They should also give you time to speak to a solicitor for advice, which we do recommend. If you are in receipt of certain benefits or on a low income you may be entitled to free legal advice.
The Local Authority’s social worker must not put pressure on you to sign the agreement or ask you to sign it if you do not understand what it says or means. You must be given the opportunity to have it translated or read to you in your native language if English is not your first language.
by Harriet Burchett
Harriet is paralegal to Jonquil Houghton
You can contact us on 0207 976 2233 if you would like any further information about the use of s20 agreements.
The Fostering Network is the UK’s leading fostering charity. Its aim is to help and support foster carers caring for fostered children. A survey carried out by the charity in February 2016 offers an insight into the impact of cuts to Local Authority budgets. The charity is keen that foster carers have their voices heard.
Reduced access to social workers
Foster carers expressed deep concern that the cuts result in reduced access to their fostered child’s allocated social worker and adversely affect the support that they are able to provide. As many as two thirds (69%) of foster carers expressed this view. The survey suggests that these cuts cause unmanageable caseloads and a high turnover of social workers which results in them being able to spend less time with the child that they are supervising and inconsistency in the support that they offer.
Reduced access to wider services
Beyond the immediate social work support, foster carers commented on the lack of respite care and the difficulties faced when attempting to access mental health services for children. Two thirds (67%) of foster carers emphasised these two areas as being of particular concern. Many children entering the care system have complex needs which means that access to specialist support services is paramount.
Reduced access to foster carer allowances and fees
Foster carers reported that allowances have been suspended for a number of years. This has resulted in many foster carers now having to pay for things that had previously been covered by an additional allowance. This has put severe financial pressure on foster carers when it comes to expenses such as mileage or replacing equipment and breakages. The survey indicates that foster carers now pay for these items themselves in order to avoid fostered children going without. Two thirds of foster carers (70%) felt that their allowances had been negatively affected by funding cuts and the same can be said for the fees that foster carers receive for fostering.
The number of children in the UK entering the care system is increasing and over three quarters of these children are subsequently placed with foster carers. The charity asserts that it is important that Local Authorities continue to be adequately funded to ensure that they are able to help facilitate stable and loving homes for fostered children. Foster carers help to restore faith in family life for many children and must be encouraged to continue with the valuable work that they do.
You can read the full report of The Fostering Network, published April 2016 here: https://www.thefosteringnetwork.org.uk/sites/www.fostering.net/files/content/cuts_report.pdf
By Ellie Gee
What is the Mental Health Act 1983?
The Mental Health Act 1983 is a piece of legislation which governs when you can be admitted and detained for treatment of a mental disorder. There are various parts of the Act in which you may be sectioned under and there are different sets of rules for each of these.
Some patients suffering from a mental disorder are classified as voluntary patients as they agree to remain in hospital for treatment. However, patients who are deemed to lack insight into their illness may be detained for treatment against their wishes under the Mental Health Act. This is also referred to as being ‘sectioned’. If you are sectioned as a formal patient, you do not have the same rights as voluntary patients as you are not free to leave. The length of time you can be detained depends on which section you are detained under.
What is a mental disorder?
A mental disorder is defined as ‘any disorder or disability of the mind’. This is a wide definition and covers, but is not limited to, disorders such as schizophrenia, schizoaffective disorder, bipolar disorder, personality disorder, anxiety disorder, obsessive compulsive disorder and learning disabilities which are associated with abnormally aggressive behaviour.
What happens if I am sectioned?
For this to happen, you must be assessed by a team of 3 health professionals. This would usually be:
- An Approved Mental Health Professional (referred to as an AMHP) or the nearest relative;
- A registered medical practitioner (usually a doctor who knows you, such as your GP); and
- A section 12 approved doctor (a doctor who has received specialist training, usually a psychiatrist).
The AMHP will interview to decide whether detaining you in hospital is in your best interests and if it is the best way of providing the treatment you require. The doctors must agree to this decision and must also agree to this by their own assessment. They must also agree that it is in the interests of your own health, your own safety or to protect the safety of other people. If possible, one of the doctors should already know you and both doctors should assess you within 5 days of each other. The decision of whether to section you will be made by the AMHP within a 14 day window.
If the decision is made to section you and you have not been assessed in hospital before or for a long period of time, you will be detained under section 2 of the Act. This is a short term section where you be assessed to see whether you suffer from a mental disorder which requires treatment in hospital.
How long can I be detained?
You can be kept under a section 2 for a maximum of 28 days However, if at any time your doctor is satisfied that you are suffering from a mental illness which warrants your detention in hospital for treatment, he may place you on longer term section 3 detention which may last up to 6 months.
You may apply to the Mental Health Tribunal to appeal your section within the first 14 days of your detention.
If you have been sectioned under the Mental Health Act 1983 and would like advice regarding your rights, please contact us on 0207 976 2233.
By Chanelle Dadral
Paralegal to Shoni Newell
Digitised and paperless family law
In a speech at the Family Law Bar Association’s annual dinner, the President of the Family Division, Sir James Munby, confirmed that the Family Law Courts could become entirely digitised and paperless in the next 4 years. He confirmed that the Family Law Courts are moving forward into a new phase of reforms further to the reforms in the law which came into force in April 2014. This new phase of reform is more practical in nature and he claims it will be fundamental. He stated that an entirely digitised and paperless Family Court can and must be achieved in the next 4 years, calling it a ‘real revolution.’ He confirmed there is a long way to go but the reforms ‘will extend to the entire justice system: crime, civil, family and tribunals.’
His first vision is for proceedings to be issued online in the future. This will involve an online questionnaire as opposed to a court form. The applicant will fill in a questionnaire, which will be user-friendly and enable them to provide all the relevant information easily. The first proceedings to become entirely digitised will be digital online probate and in family law digital online divorce. The initial implementation of this is planned for early 2017.
Further to this, the President envisages court hearings, up to and including the final hearing, to be carried out online so that the entire proceedings are digitised. This will use digital technology – such as video links – to complete hearings from the privacy of the lawyer’s office. This will result in the court buildings changing in design and function from what they are currently and they will not be visited as regularly by the judges or by practitioners who will be communicating digitally. Ultimately, such plans will reduce valuable time and costs associated with attending court hearings. The President did clarify that complex cases will continue to require practitioners to attend court in the traditional way.
Family law rules
It is clear from the President’s speech that the ‘large population of unrepresented litigants’ are at the forefront of his mind in making these radical changes. He said ‘we must constantly strive to improve, to streamline and to simplify the system.’ This is not only in respect of the application process but in relation to the rules that are currently in place. The President believes that ‘we need an entirely new set of rules’ as the current rules are ‘unreadable by litigants in person… and are simply not fit for purpose.’ He claims that the Red Book is ‘fit only for the bonfire!’ He indicates that the rules ‘must be short and written in simple plain English.’
Finally, the President confirms that the Court forms need some fine pruning and that Court Orders need standardising. He envisions that the Orders will be ‘digitised, with standard templates, self-populating boxes and drop-down menus designed to ease and shorten the process of drafting then producing the Order.’ He states that this could be completed in the courtroom during the hearing, with the help of Wi-Fi, so that parties can leave court with an agreed sealed order in their inboxes. This will inevitably prevent any delay or excessive correspondence between the parties and practitioners further to any hearings, which is currently seen in everyday practice.
It is clear from the President’s speech that drastic changes will be seen in the Family Courts in the foreseeable future. He encouraged practitioners to proceed with enthusiasm and optimism, stating that the different working practices must be embraced. He said ‘this is a time for courage’ and it is therefore with optimism that we embark on a new journey into the future of the digitised, paperless Family Court.
You can read the full speech here:
Creighton & Partners raised money for Sport Relief on Friday 18th March 2016 by holding a Bake-Off at their London and Staines offices. Everyone pitched in to make the day extra-special includi…
Source: Sport Relief Bake Off 2016