Case Update: TT (Children: Discharge of Care Order)  EWCA Civ 74220.05.21
Court of Appeal success for Ashley Lord (on behalf of the Respondent Local Authority) and Sharon Tappin (on behalf of the Respondent Children) in this crucial decision relating to the law to be applied in a discharge of care order application.
TT (Children: Discharge of Care Order)  EWCA Civ 742
by Ashley Lord, 20 May 2021
The Appellant brought an appeal against a decision of HHJ Whybrow to refuse her application for a discharge of care orders in respect of three of her children. Permission had been sought on the basis the Appellant considered she had a real prospect of success; however, permission was granted on the basis that the Court of Appeal considered there was a compelling reason to hear the appeal. The compelling reason cited by the Court was that this appeal presented an opportunity to consider the correctness of Mostyn J’s decision in GM v Carmarthenshire County Council  EWFC 36 (also reported as M v Carmarthenshire County Council  3 WLR 1126) as it related to the test to be applied in an application under s.39 of the Children Act 1989.
In brief, in 2016 whilst married to her husband, the Appellant’s oldest daughter (not the daughter of the husband) presented with extreme injuries to her genital area. Medical staff strongly considered that the injuries had been caused by sexual abuse. The Appellant and the husband were arrested, and the children were placed into the care of the maternal grandmother, where the mother subsequently joined them.
In the care proceedings that followed the Appellant had remained with her husband and was, until April of 2017, steadfast in her support of him. In April 2017, disclosure was received from the Police which indicated that the husband had possessed indecent images and videos of children. This caused the Appellant to terminate her relationship with the husband and present a case to the learned judge that she would provide care to all of the children with the support of the maternal grandmother. She professed that she now considered the husband had likely sexually abused her oldest daughter.
In June 2017 the Court found as a fact that, amongst other things, the husband had sexually abused the Appellant’s oldest daughter. Whilst of course only having to be satisfied on the balance of probabilities the learned trial judge made clear he was satisfied to what would be the criminal standard of proof. Final care orders were subsequently made placing all four of the Appellant’s children into the care of the local authority under final care orders, but he endorsed a care plan that saw the children returned to the Appellant’s care with the support of the maternal grandmother. Unsurprisingly this was predicated on the basis of her separation from the husband and the agreement to a strict safety plan.
In June 2018 the local authority received information that the Appellant and the husband had reconciled their relationship and that they planned to abscond to Spain with the children. The local authority removed the children from the Appellant’s care under the final carer orders. The Appellant’s response was to issue her application for a discharge of the care orders.
At the outset of the discharge proceedings the Appellant denied that she had reconciled with the husband, although it quickly became apparent that this was a lie. Indeed, it became clear that by the time the final care order was made in June 2017 the Appellant had already reconciled with the husband. Throughout the year where the children had been in the Appellant’s care, she had permitted the husband to have contact with the two youngest children in breach of the safety plan and in the knowledge that findings of sexual abuse had been made. To add to the already bleak picture, the safety net around the Appellant in the form of the maternal family were also aware that the Appellant had reconciled with the husband and failed to take any action to notify the local authority at all.
Throughout the discharge proceedings, which were unduly lengthy, the Appellant completed work and was assessed by a psychologist. Ultimately the Court considered that it was not in the children’s best interests of the care orders to be discharged and accordingly, in November 2020, dismissed the Appellant’s application.
The Appellant sought permission to appeal on the basis that she said there was a real prospect of success in her showing that the learned judge:
(1) Incorrectly stated the law and misdirected himself as to the test to be applied to an application for a discharge of care orders.
(2) Wrongly suggested that the test applied made no difference to the outcome.
(3) Took an incorrect approach to the question of risk.
The Court of Appeal did not grant permission to appeal on the basis of their being a real prospect of success, but on the basis that there was a compelling reason to hear the appeal (as noted at the outset of this case update). As a consequence, extensive legal argument took place on the correct test to be applied in a discharge of care order application.
Nothing of note turns on the second two grounds of appeal and it suffices to say that the Court of Appeal dismissed both grounds. Indeed, the Court of Appeal also dismissed the first ground, albeit following detailed argument as to the law.
What is apparent from the present judgment is that until now, the correct principles to be applied in a discharge of care application were to be found spread across multiple authorities. The Court of Appeal has helpfully used this appeal as an opportunity to confirm those principles once and for all. They are confirmed as follows:
 “In summary, when a court is considering an application to discharge a care order the legal principles are clear:
(1) The decision must be made in accordance with s.1 of the Act, by which the child’s welfare is the court’s paramount consideration. The welfare evaluation is at large and the relevant factors in the welfare checklist must be considered and given appropriate weight.
(2) Once the welfare evaluation has been carried out, the court will cross-check the outcome to ensure that it will be exercising its powers in such a way that any interference with Convention rights is necessary and proportionate.
(3) The applicant must make out a case for the discharge of a care order by bringing forward evidence to show that this would be in the interests of the child. The findings of fact that underpinned the making of the care order will be relevant to the court’s assessment but the weight to be given to them will vary from case to case.
(4) The welfare evaluation is made at the time of the decision. The s.31(2) threshold, applicable to the making of care order, is of no relevance to an application for its discharge. The local authority does not have to re-prove the threshold and the applicant does not have to prove that it no longer applies. Any questions of harm and risk of harm form part of the overall welfare evaluation”.
The following matters of particular note arise out of the above:
(1) The Court of Appeal has expressly moved away from the notion of the Court’s decision being “discretionary” set out in Re S (Discharge of Care Order)  2 FLR 639 and has replaced that concept with the Court carrying out a “welfare evaluation”.
(2) The welfare evaluation is carried out by reference to s.1 of the Children Act 1989. Elsewhere in the judgment the Court of Appeal confirms that this includes consideration of the no order principle under s.1 (5) [see paragraph 21]. This is of note as extensive discussion took place between the Court and the local authority on whether s.1(5) applied in a discharge application. The local authority submitted that it did. The Court of Appeal observed in discussion that this decision is the first, it seems, to have addressed this issue head on.
(3) The Court of Appeal has confirmed that there is a requirement that an applicant must bring forward evidence to make out their case. Whilst deliberately not describing this as an evidential burden, the Court of Appeal is in essence endorsing the principle arising out of the decision in MD and TD (Minors) (No 2)  Fam Law 489 and confirming the decision in Re C (Care: Discharge of Care Order)  EWCA Civ 955
GM v Carmarthenshire – Discharge of Care Order Applications
In the course of his decision in GM, Mostyn J set out what he considered to be the correct test when considering an application to discharge a care order as follows:
[4 of GM] It is true that on a section 39 application there is no formal requirement on a local authority to demonstrate the continued existence of the statutory factual threshold set out in s.31 of the Children Act 1989. However, in my judgment something close to that applies…
[9 of GM] In my judgment, the effect of this jurisprudence in the context of a discharge application is that:
(i) The pure test is that the promotion of L’s welfare is my paramount consideration.
(ii) However, his welfare will be best served if he is raised by his natural parent unless it can be positively shown that his physical or moral health would thereby by endangered.
(iii) Further, the local authority has been under a positive duty from the moment that L was taken into care to take measures to facilitate reunification between L and his blood family. Consideration will need to be given as to whether that has happened.
(iv) The proposal by the local authority and the guardian that the discharge application should be refused, and that contact should be severely reduced (a) can only prevail if they can show that the circumstances are exceptional; and (b) can only be justified if they are motivated by an overriding requirement pertaining to the child’s best interests. As Baroness Hale JSC says, this test is “very strict”.
Whilst not agreed on the issue of whether the present appeal should be allowed, the Appellant and the local authority did agree that Mostyn J was wrong in his judgment in GM – they set out their reasons for reaching this view with broad agreement as follows [paragraph 41]:
(a) The GM decision does not refer to previous authority on the subject of discharge of care orders.
(b) It is unhelpful and misleading to suggest that “something close to” a threshold applies.
(c) The construct of “near threshold” is imprecise, does not fit into any statutory framework, and distracts from a full welfare evaluation and proportionality check taking place.
(d) Care orders exist in a wide range of circumstances and the approach to discharge applications must be broad and flexible.
(e) The implication that there is a presumption in favour of discharge in anything other than exceptional circumstances is not right.
(f) The decision conflicts with all six previous authorities.
Crucially, the Court of Appeal agreed with the above analysis [paragraph 42]. Indeed, the Court of Appeal has expressly disapproved the GM approach, and this should not be followed in discharge of care applications moving forwards [paragraph 4].
GM v Carmarthenshire – Attachment Theory
In the course of skeleton arguments the issue of whether as a starting proposition, attachment to a substitute carer should be given limited weight in a discharge of care order application was considered. The local authority submitted that the issue of weight to be applied to attachment should be considered on a case-by case basis.
The Court of Appeal has considered the GM decision as it relates to attachment and Peter Jackson LJ set out the considerations of McFarlane LJ in two earlier authorities (Re M’PP (Children)  EWCA Civ 584 and Re W (A Child)  EWCA Civ 793), before going on to make the following clear:
 “The issue of attachment theory does not directly feature in this appeal, but I refer to it because it was addressed in GM v Carmarthenshire. It is one thing to find that a particular witness may not be qualified to give specific evidence about a child’s attachments, but it is another thing to question the validity of attachment theory as whole or to state that it cannot be admissible in evidence. Nor is it correct to say that, if a child’s attachment to substitute carers is so strong as to lead a court to refuse an application to discharge a care order, that would deprive s.39 of meaning. That approach risks looking at matters from the point of view of the parent at the expense of a rounded assessment of the welfare of the child. The decisions to which I have referred in the two preceding paragraphs make clear that the court has to give appropriate weight to all the relationships that are important to a child, and that there may be a role for expert advice about attachment in cases of difficulty. Insofar as the observations in GM v Carmarthenshire suggest otherwise, they cannot stand”.
There are then 5 key matters that arise out of this crucial Court of Appeal decision, and each should be kept closely in mind by practitioners instructed in discharge of care order applications:
(1) The test to be applied on a discharge of care application is set out once and for all.
(2) An applicant in a discharge of care application must bring forward evidence to make out their case that a discharge of the care order is in the best interests of the child.
(3) S.1(5) of the Children Act 1989 does apply when considering an application for a discharge of care order.
(4) The ‘test’ in a discharge of care order application set out GM v Carmarthenshire is wrong and should not be followed.
(5) Any suggestion set out in GM v Carmarthenshire that attachment theory should be afforded limited weight as a general principle, or that it is not admissible as evidence is wrong in law and should not be applied. The need and relevance of such evidence should be addressed on a case-by-case basis.
The full judgment can be found here: https://www.bailii.org/ew/cases/EWCA/Civ/2021/742.html