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Zahra Pabani
Zahra Pabani
Partner - Family Law
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CARE: Re C (Care: Discharge of Care Order) [2009] EWCA Civ 955
Date:9 SEP 2009

(Court of Appeal; Laws, Richards and Hughes LJJ; 3 August 2009)

The mother had four sons; social services had frequently been involved with the family because of parental conflict and neglect of the children. The mother was unremittingly hostile to the authorities, and to the interim care orders and final care orders made in respect of the children. A pattern developed in which each of the children, after reaching a certain age, began to abscond from authority care, returning to the family home where the mother provided support and resisted the authorities in their attempt to recover the child.

The third child followed this pattern, and repeatedly absconded back to the mother's home. When he was 15, the mother applied for his care order to be discharged; however, during the hearing the mother changed her stance, arguing that the care order should stay in place until the child was 16, because if the care order were discharged while the child was still 15 the child would not be 'relevant child', eligible for local authority assistance as a 'looked after child' under Children Act 1989, s 23A(2). In view of the fact that the order was not working, the application for discharge of the care order was not opposed by the local authority or the guardian. Given the determined resistance of the third child to the care order, the judge discharged the order.

The mother appealed the discharge of the order.

The mother's appeal was dismissed. The judge had been entitled to take into account the continuing effect, or in this case the lack of effect, of the care order; this care order had set up conflict.

It was a relevant, although not determinative, consideration that as long as this care order remained, the local authority could not comply with its duty concerning placement of a child in care with a parent, under Children Act 1989, s 23(5) and the regulations, or with its duty under s 22(3) to safeguard and promote the child's welfare.

There might be some cases in which a care order ought to be preserved to ensure that a child benefited from the leaving care provisions. However, in this case, the leaving care provisions would not have applied, even if the care order had not been discharged, because the child had in fact been living with a parent for the previous 6 months, and was therefore excluded from the leaving care provisions by Children (Leaving Care) (England) Regulations 2001 (SI 2001/2874), Reg 4(5). There was no need to import into Reg 4(5) the concept of placement as it appeared in other regulations; Reg 4(5) simply applied to children who were in fact living with their own parents and did not require placement by the local authority. In expressing the view that it was not in the interests of a child to learn that it was proper to take benefits without any responsibility in return, the judge had not vitiated the proper basis for his decision, which appeared elsewhere in the judgment.