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
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 including decorating the office, making Mary Berry and Paul Hollywood masks and baking lots of delicious treats! Paralegals, Alice Clayson and Ben Dos Santos brought in home-made cupcakes and brownies, Legal Executive, Jacqui Cox made a mouth-watering lemon drizzle and a yummy Victoria Sponge and Clare Armstrong made red velvet and vanilla cupcakes.
The bake sale was very popular within the building of the London office and they were told that they were the talk of the offices upstairs!
Of course, Bake Off wouldn’t be Bake Off without Judges Mary Berry and Paul Hollywood who were certainly impressed with this year’s contestants. Jacqui was victorious with her Victoria sponge becoming the London office’s Star Baker and Clare Armstrong was a worthy winner with her cupcakes becoming the Staines office’s Star Baker!
We had a blast raising £202.61 for a great cause. Thanks to all those who contributed.
By Alice Clayson and Nusrat Chauhan
Alice Clayson is Paralegal to Gemma Neath
The misuse of section 20 Children Act 1989 and guidance for future good practice – Re N (Children) (Adoption: Jurisdiction)  EWCA Civ 1112
An important decision of the Court of Appeal was handed down in November 2015, which should help to guide local authorities and improve their practice in relation to the use of section 20 Children Act (CA from here-on-in) 1989 throughout the remainder of 2016 and beyond.
In this case, Sir James Munby, President of the Family Division, stated that the “misuse and abuse of section 20…is wrong (and) it will no longer be tolerated”. He commented on the unacceptable delay in proceedings. He suggested that local authorities which use section 20 “as a prelude to care proceedings for lengthy periods”, or which fail to follow the good practice identified by him in his judgment, which I will discuss later, can expect to be “subjected to probing questioning by the court”.
The present case
The case in which the judgment was made was an appeal brought by a local authority against a decision of HHJ Bellamy at the final hearing of care and placement order proceedings. It related to two Hungarian children whose mother was Hungarian and father was Hungarian/Roma. The children had been placed in foster care with an English family. The parents of the children had agreed to them being accommodated by the local authority under section 20 CA 1989. The mother applied for an order regarding jurisdiction. The court granted the mother’s application for an order requesting the Hungarian court to assume jurisdiction in the adoption proceedings, therefore transferring proceedings to Hungary, pursuant Article 15 of Council Regulation (EC) no 2201/2003.
The essential issue in the appeal was whether HHJ Bellamy was correct to proceed under Article 15. The Court of Appeal dismissed the appeal of the local authority, therefore confirming the initial judgment.
However, during the hearing, the issues explored by Sir James Munby broadened. One of the issues that arose, which I will be focusing on in this article, was the use of section 20 CA 1989.
Section 20 Children Act 1989
I will now concentrate on the misuse of Section 20 within this case, and indeed other cases, and how Sir James Munby not only highlighted the shortcomings of the local authority in this case, but also set out good practice which other local authorities should follow in the future.
The law reads as follows:
Section 20 – Provision of accommodation for children: general
(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of—
(a) there being no person who has parental responsibility for him;
(b) his being lost or having been abandoned; or
(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.
Recently, there have been numerous cases where local authorities have been criticised for accommodating children under section 20 agreements for too long a time period before proceedings are issued. This inevitably causes delay and leaves the children’s future hanging in the balance, creating much uncertainty for them. It is thought that perhaps one reason why local authorities are delaying issuing proceedings is to use it as a tool to help keep within the 26 week timetable that begins from the time that proceedings are issued. It can be highly damaging for the children though, especially given that they are deprived of having a children’s guardian to represent their interests until proceedings are issued, and indeed goes against the very premise and purpose of attempts to limit proceedings to 26 weeks.
In the present case the children were placed in accommodation in May 2013 in accordance with section 20. However, care proceedings were not issued until January 2014, some 8 months later. Sir James Munby reasoned that although is some cases section 20 may be used effectively as a short-term measure to prevent the commencement of care proceedings, the use of it to delay proceedings being issued for as long as 8 months, as it was here, is “wholly unacceptable” and is a “misuse by the local authority of its statutory powers”.
He went on to highlight the recent case law in which local authorities were criticised for the misuse of section 20. Four discrete problems were set out:
- The failure of the local authority to obtain informed consent to accommodation from the parents at the outset of proceedings, going against section 20(7) which provides that a local authority cannot use its powers if a parent “objects”.
- The form in which the consent of the parents is recorded. Although the local authorities are not required by law to evidence the agreement in writing, a “prudent” local authority should ensure that parental consent is properly recorded in writing.
- The arrangements under section 20 are permitted to continue for too long, as focused on in this article.
- The apparent reluctance of local authorities to return the children to the parents immediately upon a withdrawal of parental consent. As a result of section 20(8) providing that “any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section”, a local authority which fails to allow a parent to remove a child in circumstances within section 20(8) acts unlawfully.
Guidelines for good future practice
Sir James Munby went on to provide guidance for future good practice in relation to procedure under section 20 to eradicate the shortcomings listed above:
- i) Wherever possible the agreement of a parent to the accommodation of their child under section 20 should be properly recorded in writing and evidenced by the parent’s signature.
ii)The written document should be clear and precise as to its terms, drafted in simple and straight-forward language that the particular parent can readily understand.
iii)The written document should spell out, following the language of section 20(8), that the parent can “remove the child” from the local authority accommodation “at any time”.
- iv) The written document should not seek to impose any fetters on the exercise of the parent’s right under section 20(8).
- v) Where the parent is not fluent in English, the written document should be translated into the parent’s own language and the parent should sign the foreign language text, adding, in the parent’s language, words to the effect that ‘I have read this document and I agree to its terms.’
It is hoped that now that the above issues have been addressed, local authorities will take note and ensure good practice is carried out. Misuse of section 20 is a denial of the fundamental rights of both the parent and child and “must stop”. It is expected that local authorities will follow the good practice set out above from now on, or can be expected to be subject to serious questioning by the court and stringent criticism, with even potential claims against them for damages.
There have been signs of the courts already stepping up the efforts to ensure good practice is carried out to prevent the misuse of section 20. Recently, a West London Family Court local practice direction has been made, providing that all cases involving a “significant” section 20 delay will be listed before a circuit judge. Judge Rowe sitting at West London has awarded damages for over £3,000 in one case involving a 2 month period under section 20.
It will be interesting to see whether local authorities adapt their methods of practice in the coming months, and especially to see whether there is a general reduction in the time between accommodation under section 20 and the issuing of proceedings.
Please contact us regarding any of the issues in this article or if you would like further advice.
Ben Dos Santos
Paralegal to Jonquil Houghton
You may be surprised to hear that in 2015, the Supreme Court granted an ex-wife’s appeal, which meant that her application for financial relief from her ex-husband- despite having divorced him over two decades ago-would not be struck out of court (Vince v Wyatt).
Ms Wyatt and Mr Vince were married in 1981. They had one son together and Ms Wyatt also had a daughter from a previous relationship who was treated as a child of the family. They led a ‘New Age Traveller lifestyle’ and lived mainly off of benefits. They separated after two years’ marriage and formerly divorced in 1992. At the time of the couple’s divorce neither party had any significant assets. It was accepted that Mr Vince was not in a position to financially support Ms Wyatt and the two children, who remained living with her.
In the years after the couple’s divorce a stark difference in each of their respective lifestyles can be seen. Ms Wyatt subsisted mainly on her wages from sporadic periods of low-income employment and state benefits. She went on to have two more children with another partner, but never remarried. Whereas, Mr Vince continued his travels and quite remarkably turned his passion for environmentally friendly energy resources into a multi-million pound business, which he set up in 1995, three years after the couple divorced.
In 2011, Ms Wyatt first applied for a financial order against Mr Vince in the form of a lump sum of £1.9 million. At the time of this application Mr Vince had remarried and had another child. Mr Vince argued that her application should be struck out due to the delay in Ms Wyatt bringing the application.
The case came before the Court of Appeal where it was decided her application would be struck out as they felt there were no reasonable grounds for bringing it.
Ms Wyatt then appealed to the Supreme Court.
So what was decided?
The Supreme Court unanimously decided that they could not dismiss an application for financial relief without first considering all the circumstances and statutory factors. This is despite the delay in bringing the application- although they made clear that the reasons for such a delay would be scrutinised.
When the court considers financial provision for a spouse the court considers all of the factors listed in s25 (2) of the Matrimonial Causes Act 1973. Ms Wyatt heavily relied on s25(2)(f) which takes into account any contributions made by each party- including contributions by way of caring for the home and children. This is not limited to contributions made within the marriage. Therefore, there was scope for considering Ms Wyatt’s contribution post-divorce: namely that she was solely responsible for the upbringing of their children.
The judge commented that although Ms Wyatt had ‘formidable difficulties’ in securing any financial provision from her ex-not least due to the amount of time it took her to bring this claim-her reliance on her contribution post-divorce meant she had a ‘modest’ chance of success.
What does this mean?
It remains to be seen whether Ms Wyatt will win a slice of her ex-husband’s wealth that he acquired after their divorce, but the fact that her application is nonetheless being considered raises an important point. It highlights there is no statutory time limit for bringing an application for a financial order after divorce.
With the onset of ‘quickie divorce’ websites-claiming they can offer you a quick, easy and cheap divorce without recourse to lawyers- this case highlights the importance of sorting out your finances properly and reaching an agreement at the time of divorce, even if you do not have any significant assets.
Such an agreement can be enshrined into a consent order. This is a legal document confirming your agreement and can include details of how you intend to divide up your assets upon divorce, arrangements for maintenance and can even dismiss future applications for financial relief. Provided that the agreement reached is fair and reasonable, a judge will then approve it; once approved it will become legally binding. It is advisable to have this drafted by a solicitor, as it is crucial that it reflects accurately what has been agreed.
So when you untie the knot make sure that you tie up any loose ends relating to your finances. Why don’t you speak to one of our specialist divorce solicitors today? They can help you achieve finality for your finances, giving you peace of mind.
By Charley Olive
Click here to contact us for advice on any of the issues raised in this article.