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