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NP and South Gloucestershire County Council and MLC (A Child) By His Guardian [2005] EWCA Civ 1329

Where a final care order has been made the court may only discharge the order or make an order for contact. The court does not have the jurisdiction to substitute an interim care order.

NP and South Gloucestershire County Council and MLC (A Child) By His Guardian [2005] EWCA Civ 1329

Court of Appeal: Laws LJ, Wall LJ (10 November 2005)

Summary
Where a final care order has been made the court may only discharge the order or make an order for contact. The court does not have the jurisdiction to substitute an interim care order.

Background
The mother of M was only 15 years of age at his birth and herself subject to a care order. The local authority commenced care proceedings, and produced a care plan to assess the mother's ability to care for M. This involved the mother and M being placed in a mother and baby unit. Prior to the final hearing the local authority filed an interim care plan advocating a postponement of the final adjudication of this case to allow the assessment of mother to continue under an interim care order.

The guardian opposed this course of action and argued that the court should make a final care order. At the final hearing a final care order was made by consent allowing for the placement of mother and M to continue for three to six months with specified work to be undertaken and, if sufficient progress were not made, an adoptive placement was to be sought for M. Subsequently, what was described as a "disastrous" period followed in which M was removed from the mother's care and the local authority made an application under the Children Act 1989 section 34(4) for permission to terminate both parent's contact with M. The mother then made an application under section 39 to discharge the care order and for contact with M. The mother's application was dismissed by HHJ Rutherford who concluded that whilst he recognised some real concerns at the local authority's decision to remove M from his mother's care, there had been no evidence to suggest that M could be safely returned to the mother without the protection of a care order.

Judgment
This decision was appealed on the following grounds (CPR Part 52.11(3)):

1) The Judge was wrong to dismiss the application for discharge of the care order and should have either:

2) The Judge's decision was unjust because of a failure to consider the remedies under the Human Rights Act 1998.

Wall LJ concluded that neither of these grounds was arguable. The judge was right to dismiss the application to discharge the care order as no other course was properly open to him.

The power to substitute an interim order
On an application under section 39 to discharge a care order a judge does not have the jurisdiction to substitute an interim care order. Section 39(4) is clear, if the court is minded to discharge the care order the only order which it can substitute for the care order is a supervision order. Further, an application to discharge a care order does not come within section 38(1)(a) or (b) relating to interim orders.

Adjourning the application
No application was made for an adjournment and, further, the judge having heard three days of evidence was entitled to make findings.

Failure to consider HRA 1998
The mother's advisers had not fulfilled the procedural conditions provided by FPR 1991 rule 10.26(2) to argue any breach of the Human Rights Act.

Overall, the Judge was held to have applied the right test and reached the right conclusion. M's welfare required the care order to remain in being.

Read the full text of the judgment here