The applicant was the mother of six young children, who had four different fathers. Her eldest child suffered serious injuries resulting from sexual abuse by the father of three of the mother’s children now aged 6, 5 and 4. The children went to live with the maternal grandmother, where they were later joined by the mother. Care orders under the Children Act 1989 were made in respect of the children and the mother signed a safety plan, which provided that there was to be no contact between the children and the father. However the mother and father continued their relationship and the local authority gave notice to remove the children. Following information indicating that the family were preparing to abscond to Spain the children were taken into foster care. The mother issued an application for the discharge of the care orders pursuant to section 39 of the 1989 Act with a view to the children returning to her care. During the course of an eight-day hearing, the judge reviewed the history leading to the making of the care orders and matters discovered since, including the fact that the mother, in an attempt to cover up for the father, had told very serious lies about events concerning the injuries to the eldest child and that after the care orders were made, she had repeatedly lied about having separated from the father. The competing plans for the three children were the plan for them to remain in long-term foster care, that being the plan of the local authority, supported by the Children’s Guardian, and the plan for rehabilitation to their mother. The judge refused the mother’s application, holding that overall, the risk of neglect to the children in exposing them to physical, emotional and sexual harm and other forms of neglectful care formed serious defects in the capacity of the mother to give care to the children if no order was made; that the factors of the welfare checklist in section 1(4)(e) and (f) of the 1989 Act to which particular regard had to be had when determining welfare questions regarding a child, namely (e) any harm which he had suffered or was at risk of suffering and (f) how capable each of his parents, and any other relevant person was of meeting his needs, predominated and were not outweighed by the factors which might support rehabilitation, aspects of the needs of the children and the lack of local authority permanency for the younger two children. The judge held that the risks meant that it was necessary to maintain the separation of mother and children and the compulsory care order was to remain in place; that the care order and care plans were proportionate to the risk of harm if the children were in their mother’s care; and that the contact plans of the local authority were reasonable and in the best interests of the children.
The mother appealed on the grounds that the judge had (i) incorrectly stated the law and misdirected himself as to the test to be applied to an application for the discharge of care orders; (ii) wrongly suggested that the test applied made no difference to the outcome; and (iii) had taken an incorrect approach to the question of the risk. Permission to appeal was granted in part on the grounds that there was a compelling reason for the appeal to be heard in that it offered an opportunity for the Court of Appeal to consider the correctness of the decision in M v Carmarthenshire County Council [2018] EWFC 36; [2018] Fam 303, in which it was stated that on an application to discharge a care order, while there was no formal requirement on the local authority to demonstrate the continued existence of the statutory threshold under section 31(2) of the Children Act 1989 for the making of a care order (the child suffering or likely to suffer significant harm attributable to the care given if the order was not made or the child being beyond parental control), something close to a formal threshold requirement applied, and that a discharge application should not be refused unless it could be shown that the circumstances were exceptional and that the outcome was motivated by an overriding requirement pertaining to the child’s best interests.
On the appeal—
Held, appeal dismissed. (1) The combined effect of the statutory provisions was that on the application of an entitled applicant the court might discharge a care order or replace it with a supervision order, in which case there was no requirement for the section 31(2) threshold to be crossed. As the decision concerned a question of upbringing, the child’s welfare was to be the court’s paramount consideration. As the court would be considering whether to vary or discharge an order under Part IV of the 1989 Act, it was to have particular regard to the factors in the welfare checklist in section 1(4) of the 1989 Act. As the court was considering whether to make an order under the 1989 Act, it was not to make the order unless to do so would be better for the child than making no order at all. By virtue of section 3 of the Human Rights Act 1998, so far as it was possible to do so, those provisions in the 1989 Act had to be read and given effect in a way which was compatible with the Convention rights. The salient rights were the article 8 right to respect for family life (in the context of the obligation on the state to protect children from severe abuse) and the article 3 right not to be subject to inhuman or degrading treatment (paras 21–22).
(2) The proper approach to an application to discharge a care order had been considered in previous decisions of the Court of Appeal and at first instance by the Court of Appeal and at first instance and the legal principles were clear, namely that (1) the decision should be made in accordance with section 1 of the 1989 Act, by which the child’s welfare was the court’s paramount consideration. The welfare evaluation was at large and the relevant factors in the welfare checklist in section 1(4) of the 1989 Act had to be considered and given appropriate weight. (2) Once the welfare evaluation had been carried out, the court would cross-check the outcome to ensure that it would be exercising its powers in such a way that any interference with Convention rights was necessary and proportionate. (3) The applicant had to make out a case for the discharge of the care order by bringing forward evidence to show that it would be in the interests of the child. The findings of fact that underpinned the making of the care order would be relevant to the court’s assessment but the weight to be given to them would vary from case to case. (4) The welfare evaluation was to be made at the time of the decision. The section 31(2) threshold, applicable to the making of a care order, was of no relevance to an application for its discharge. The local authority did not have to re-prove the threshold and the applicant did not have to prove that it no longer applied. Any questions of harm and risk of harm would form part of the overall welfare evaluation (para 31).
(3) The judge’s overall approach to the assessment of risk could not be faulted. He recognised the need to check his welfare findings against the mother’s Convention rights and made a thorough welfare assessment and approached his decision in the correct and conventional way. The fundamental test to be applied to an application under section 39, and to other applications under the 1989 Act, was the welfare principle and not a test of necessity or some other test. The attempt in the present and other cases to shift the focus away from welfare was neither helpful nor necessary. A proper welfare analysis and proportionality crosscheck was a dependable bulwark against any tendency towards social engineering. The judge was entitled to find as he did and for all those reasons the decision would be upheld (paras 16–17, 33, 36–37, 44, 50, 51).
Alex Taylor (instructed by Ridley & Hall Legal Limited) for the mother.
Ashley Lord (instructed by North East Lincolnshire Borough Council) for the local authority.
The second and third fathers were not present or represented.
Sharon Tappin (instructed by John Barkers Solicitors Ltd) for the children by their Children’s Guardian.