It is a question often asked at the end of family care proceedings: can I get my kids back? It is a serious question and one that should be carefully considered with the benefit of legal advice. Mostyn J recently considered this issue in GM v Carmarthenshire and made some comments that will interest parents and local authorities alike.

Discharging a care order

The short answer to the title question is: “yes”. The Children Act allows for a care order to be discharged (section 39) and remarkably provides next to no guidance on when this should happen. It is purely a matter of judicial discretion. The courts have had to fill in the gap in the legislation.

How will the court decide?

The test previously set out for discharging a care order was simply to exercise its discretion in accordance with the overall obligations in the Children Act to act in the best interests of the child with their welfare as the paramount consideration. Although it would clearly be a factor in assessing what is in the child’s best interests, the court was explicit a parent does not need to show that the previous risk of harm no longer applies (Re S (Discharge of Care Order)).

GM v Carmarthenshire

Mostyn J looked at discharge of a care order through the lens of the oft-quoted Supreme Court decision in Re B. He highlighted the European case law referenced in Re B, including the positive duty on the local authority to facilitate family reunification as soon as possible (K & T v Finland), and ordered discharge as he felt the concerns about the mother were unsubstantiated.

The judge did not claim to change the test established in Re S (Discharge of Care Order), in fact he did not even refer to it. He stated that there is “something close to a formal threshold requirement in play” and that Re B means the court should not ask whether there is a good reason to disrupt a stable placement but rather “is there any good reason why the mother cannot resume the care of her child?”

What is significant about this decision is that, rather than simply being one of the factors in assessing the child’s best interests, Mostyn J appeared to consider the mother’s risk of harm as almost the only factor. Having made some very controversial comments about attachment theory, he seemed to give barely any weight to the strong attachment the child had formed with the foster carers over the previous 2½ years. He also rhetorically asked “what more could the mother had done? The answer is nothing”. Some may think the best interests of the child depend on more than this.

What does this mean?

For parents, this judgment will be a useful tool given its focus on the positive duty of local authorities to seek to reunite families. But local authorities and social workers may be surprised at the judge’s approach, particularly his comment that the child should not have been told that they will be staying permanently with their foster parents and that to do so was a “major dereliction” of the local authority’s duty.

In the longer term other – and possibly higher – courts will no doubt have reason to comment on the Mostyn J’s decision. If it meets with approval, it may result in Re B having as significant an effect on discharge of care orders as it has in adoption cases.

Mark is a barrister specialising in crime, extradition, family and civil work. He appeared regularly in the High Court (Admin) in relation to extradition appeals, as well as in criminal matters in the Crown Court for both the prosecution and defence. He is also experienced in proceeds of crime and prison proceedings.

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