Following care proceedings where a child has been made the subject of a Care Order, most parents hope that one day the Care Order will be discharged and the child can return home to them.
Whether that is realistic depends on a number of factors. The timing of an application is also key.
Section 39 Children Act 1989 states that a Care Order may be discharged on the application of:
- any person who has parental responsibility for the child; or
- the child himself; or
- the Local Authority designated by the order.
You do not need leave of the court to make the application.
What will the court consider in an application to discharge a Care Order?
The court has to regard the child’s welfare as the most important factor. It has to look at every aspect of the ‘Welfare Checklist’ in Section 1 of the Children Act 1989.This includes considering any harm the child may have previously suffered and the ability of the parents to meet the child’s needs in the future. It also takes into account the child’s age, circumstances, and wishes and feelings, whilst also allowing for their level of understanding. In order to discharge a Care Order, a parent would need to satisfy the court that it is in the child’s best interests to do so.
What do I need to show?
The Care Order will have been made for a reason. The court will have found that the child had suffered or was likely to suffer real harm in the parent’s care before making the Care Order. A parent seeking to discharge a Care Order will usually have to present clear evidence of changes they have made to their own situation, so the harm, or risk of harm, to the child no longer exists.
This usually means being able to demonstrate a greater ability to meet the child’s needs than has been shown in the past.
What evidence will I need to provide?
The type of evidence required will vary with the circumstances of each case. Examples could include sustained abstinence from drug and alcohol use, usually for a minimum of 12 months, completion of effective therapy, or maintained separation from an abusive ex-partner. All of this needs to be backed up with real evidence – Bretherton Law can advise you about how to put this together.
When can I apply to discharge the Care Order?
The best time is when you have a good chance of success – it is best to wait until you have clearly made the changes required, and enough time has passed for the court to understand and accept that those changes are permanent. Each case is different so there is no hard and fast rule.
If you apply too early then the court may reject your application, and you cannot then apply again for 6 months without permission of the court.
However leaving the application too long may mean that the impact of a return home could be thought to be too disruptive, especially if the child is settled and doing well.
Bretherton Law’s specialist solicitors have many years of experience in child care proceedings and can offer advice and support throughout your application.
The team of specialist Child Care lawyers at Bretherton Law can advise and guide you so call today on 01727 869293 for help and initial advice. Means-tested Legal Aid may be available for those eligible