Can I Apply To Discharge A Final Care Order Made In Respect Of My Child After Proceedings Have Concluded?
If a Final Care Order is granted in care proceedings in favour of a Local Authority, there are certain circumstances whereby an application can be made in the future to discharge the Care Order with a view to the child/children returning home.
When Can A Care Order Be Discharged?
There are no set rules about when a Care Order can be discharged as this is considered on a case by case basis. The Court generally would expect 6-12 months to have lapsed before any application to discharge the Care Order is made. This is because the Court needs to see evidence that there has been a “change of circumstance”, and there is unlikely to have been any significant change of circumstances until at least six months have passed since the original Care Order was granted.
Who Can Apply To Discharge A Care Order?
- The Local Authority
- A parent
- A person with parental responsibility
- The child who the Care Order relates to
In What Circumstances Can A Care Order Be Discharged?
In order for a Care Order to be discharged, there must be significant evidence that there has been a “change of circumstances” since the Care Order was granted. The Court must also consider the child’s welfare and be satisfied that it is safe for the child to return.
Examples Of Change In Circumstances Include:
- Remaining abstinence from drugs and alcohol for a sustained period
- Improvements to poor home conditions
- Separating from a violent partner and completing domestic violence course
- Improvements to mental health
The Court will require evidence to show that the situation has changed. It is helpful to get such evidence from the relevant agencies such as GP, drug and alcohol recovery services, therapist or a domestic violence support team.
In some circumstances, the Local Authority may decide to apply to discharge a Care Order. This is often if they feel that a parent has made considerable progress or when an alternative order is sought. For example – a Special Guardianship Order to a foster carer or relative. This can be considered as part of the 'Looked After Child Review Process'.
The Court will consider whether to appoint a Children’s Guardian again. In order to consider whether it is necessary to ascertain the children’s wishes and feelings about whether they would want to return home. And whether the Guardian considers that it is in the child’s best interests for the Care Order to be discharged.
If a Guardian is appointed, then it is usually the same Guardian who was involved in the case previously.
Will I Be Entitled To Legal Aid?
During the original care proceedings whereby a care or supervision order is being sought, parents are automatically entitled to free legal aid. Unfortunately, this does not apply to applications to discharge a Care Order and legal aid is not an automatic right. There is a chance that you still may be eligible for legal aid depending on the following:
- Means – the Legal Aid Agency will review your financial situation and household income before deciding whether you will be entitled to legal aid.
- Merits – the Legal Aid Agency will require clear evidence that there is a change of circumstances since the Care Order was made. This would warrant an application to Discharge the Care Order (see above regarding “Change of Circumstances”).
What Happens After The Application Is Made To The Court?
The Court will direct the necessary evidence from the social worker, parents, Guardian and any other third-party disclosure. There will be an initial hearing to determine what evidence is required. This enables the Court to make a final decision and the case will be listed for an Issues Resolution and Final Hearing. If there is any disagreement between the parties about whether the Care Order should be discharged, then sometimes oral evidence is required.
Sometimes, the Local Authority may wish to complete an updating assessment of parents or relatives before a final decision can be made.
If you would like to contact us regarding a care matter then please do not hesitate to contact me at m.knight@timms-law.com or on 01283 561531. Alternatively, for more information visit the Family Law section of our website here.
