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The Court of Appeal reversed the case law on the enforcement of care orders and made it clear that decisions should be made in accordance with the social protection principle of the Children’s Act 1989.
A judgment of 2018, GM vs. Carmarthenshire, had said “something akin” to the proof requirement imposed on local authorities to apply for a care order – that a child suffered or was likely to suffer significant harm as a result of the care provided to him or her, or because it escaped parental control – also applied when defending a parent’s request to release it.
In a decision of the Court of Appeal released last week, TT (Children) Lord Justice Peter Jackson said this was “not correct and should not be followed”, as did GM’s statement that requests for release should only be denied in exceptional circumstances. Instead, decisions should be based on the well-being of the child, according to the checklist in section 1 of the Children Act 1989.
This had been clarified in previous case law on discharge orders, including Re S (discharge order)  and Re C (Care: discharge order) .
However, the Court of Appeal found that GM Judge Mostyn J. addressed section 39 of the Children’s Act 1989, which deals with the enforcement of care orders, “as s ‘this was uncharted territory’ when the decision could have been made using ‘established principles’.
Principles of dispensing care orders
Lord Justice Jackson set out the legal principles when a court considers an application for release from a care order as follows:
- A welfare assessment: the welfare of the child is the primary consideration of the court and the relevant factors from the welfare checklist in section 1 of the Children’s Act 1989 should be taken into account and duly weighted.
- Cross-check the welfare assessment to see which rights of a parent and / or child under the European Convention on Human Rights may be violated, to ensure that any interference is necessary and proportionate.
- The parent or other applicant must provide evidence demonstrating that enforcement of the care order would be in the best interests of the child. “The factual findings underlying 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. “
- The Article 31 (2) “threshold” (that the child suffers or is likely to suffer significant harm) for making a care order has no role in release requests, unlike the Judge Mostyn had said in GM. “The local authority does not have to prove the threshold again and the applicant does not have to prove that it no longer applies. All questions of harm and risk of harm are part of the overall assessment of well-being.
The decision came in a judgment dismissing a mother’s appeal against a family court decision denying her request for release from care orders for three of her children. Lord Justice Jackson said he had granted leave to appeal to the mother when it was “doubtful” that she had any real prospect of success “but there was a compelling reason why the appeal be heard because it offered an opportunity for this tribunal to examine the merits of the decision in GM ”.
Conclusions on the “can’t stand” attachment
Lord Justice Jackson also said that Judge Mostyn’s findings in GM that the attachment theory was not admissible because expert evidence “cannot hold” and that there may be a role for ” expert opinion on attachment in case of difficulty “.
Judge Mostyn had criticized the attempt to use attachment theory, presented in a report by an independent social worker, to justify the child staying with his foster families because of the strength of the bond. the child with them, rather than going home, which the mother wanted.
The judge had described the attachment theory as “only a theory” and “a statement of the obvious”. In his view, this was not “the subject of a specific recognized body of expertise governed by recognized standards and rules of conduct” and therefore cannot be admitted as expert evidence.
He also found that while the strength of an attachment to a caregiver was given significant weight when parents were unable to exercise “convenient parenting” because the care order was in place, this would make the ability to request support be discharged “largely meaningless”.
Lord Justice Jackson sought to correct these two points:
“It is one thing to find that a particular witness may not be qualified to give specific testimony about a child’s attachments, but it is quite another to question the validity of the theory of attachment as a whole or to assert that it cannot be admissible in evidence. It is also not correct to say that, if a child’s attachment to caregivers is so strong that it causes a court to dismiss an application to quash a supported, that would deprive Article 39 of its meaning. This approach risks looking at things from a parent’s perspective to the detriment of a comprehensive assessment of child well-being.