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C (A Child) [2009] EWCA Civ 955

Application by mother for permission to appeal, with appeal to follow, decision to discharge a care order against her 15 year old son. Application granted; appeal dismissed.

The mother and her four sons had a long history with social services and the three youngest were eventually removed: the eldest who was nearly 16 at the time was felt to be beyond any help from social services. That pattern was followed by both the second and third eldest sons, who both absconded from their placements regularly with the support of the mother. The second eldest child was discharged from any care orders as was, subsequently, the third child, who was fifteen and the subject of this appeal. The order was discharged on application by the local authority with the judge's permission after the mother had sought leave to withdraw her application to discharge. She had opposed the care orders all along but changed her mind at the last minute in an attempt to ensure that the child would benefit from the leaving care regulations and so would be supported by the local authority.

In this appeal, counsel for the mother argued principally that the judge had erred in law as he could only discharge the care order if there was a positive benefit to the child in doing so. Against this background, Hughes LJ reviews the relevant regulations and the decision of the judge. He acknowledges that the care order must not be discharged as either a punishment or as a means to allow the local authority to escape the burdens of supporting the child after his 16th birthday. He also states that in certain circumstances a care order could remain in place solely to provide the benefits of the leaving care regulations. However, he went on to conclude that the child, by virtue of his living with the mother, would not come under the regulations and that the local authority had done what they could to fulfil their duties under the care order. Therefore the trial judge had been entitled to discharge that order.

Case No: B4/2009/1055

Neutral Citation Number: [2009] EWCA Civ 955
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday, 3rd August 2009


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(DAR Transcript of
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Mr P Hepher (instructed by Child Law Partnership) appeared on behalf of the Appellant mother.

Ms L Cannon (instructed by Surrey County Council) appeared on behalf of the Respondent local authority.

Ms B Coleman (instructed by Russell Cooke Solicitors) appeared on behalf of the Children’s Guardian.

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(As Approved by the Court)
Crown Copyright©
Lord Justice Hughes:
1. This is an appeal in care proceedings.  It is contended that the judge was wrong to discharge a care order upon a 15 year old boy without sufficiently considering the possible future impact of the leaving care provisions.

2. The slightly unusual feature of the case is that, with a background of longstanding and unremitting hostility by mother to the idea of a care order, the case came back to the judge on her application to discharge the order, yet it is she who now contends that the judge ought not to have done so.  Nevertheless, and although the guardian supported the discharge of the order before the judge, mother is supported today by counsel appearing on behalf of the child who has been able to take rather different instructions from those which had been available in the court below.  Even if mother has no merit in any complaint from her own point of view that her belatedly formed wishes did not prevail, it is nevertheless necessary for the sake of the child to examine the question of whether the judge went wrong. 

3. The mother has four sons by two different fathers.  The eldest two are now 19 and seventeen and a half respectively.  The third, J, born on 24 August 1993, is the subject of the present appeal.  At the time the judge dealt with the application in April, J was four months short of his sixteenth birthday.  There is, for completeness, also a younger son, W, born in August of 1996, who at the time of the hearing before the judge was not yet 13. 

4. There is quite a long history of social services involvement from time to time. It began not later than 1993 when mother was approximately 30.  There is in the background a good deal of parental conflict.  Father was sometimes in trouble with the police, mother lost a job for allegedly stealing, the children were neglected, and successively their behaviour proved disruptive, aggressive and often untruthful.  There was a period of about a year in 2003 to 2004 when mother was wholly absent, leaving the children with father.

5. In due course care proceedings were taken, and after a succession of interim orders which were made on the basis that the boys would be left at home on trial with mother, the younger three were removed after a contested hearing before the County Court in March of 2005.  By then the eldest boy was rising 16 and beyond the power of the local authority to achieve anything helpful, because wherever he was placed he ran away back to the family home and there was supported by mother in his absconsions.  In those circumstances the local authority did not press an application for a care order in his case, and this is a history which has subsequently proved prophetic. 

6. The judge who dealt with that removal decision in March 2005 was the same judge who was later to make the order now under appeal.  He could not avoid finding that both parents had sadly failed the children.  The children were wayward and often out of control.  The parents were now apart, and mother displayed towards the local authority the unremitting hostility which I have already mentioned.  That made it virtually impossible to achieve anything very useful for the boys under the care order.  It ought to be said that her hostility was not limited to the local authority because two different schools wrote to say that her behaviour there made the school’s task in attempting to educate the younger two boys the next best thing to impossible.  The letter from one school in particular, which came from an author who was by no means unused to difficult behaviour, described the sabotage of J’s schooling in pursuit of mother’s own need to give way to her anger as being at a level that he had not seen in 27 years’ experience.  I should also record that as well as the judge now under appeal, Pauffley J made similar findings about mother’s stance in April 2005. 

7. As time went by, in August 2008, by which time the second son was rising 17, a similar situation obtained in his case to that which had previously obtained in the case of the eldest.  At that stage the local authority did not in those circumstances oppose mother’s application to discharge his care order.  That left care orders in place for J, with whom we are now concerned, and also W. 

8. By the time of the hearing now under appeal in April 2009, J, the third son, was following the pattern of behaviour which had previously been demonstrated by the elder two.  He was persistently absconding from wherever the local authority put him to live.  Some times he went to father, but latterly had gone to his mother, and time and time again.  She for her part remained convinced that he was very much better off with her and that there ought not to be a care order or any significant role for the local authority.

9. The local authority had returned him on numerous occasions to the children’s home where he was by 2008 living, sometimes with the help of the police and once under a recovery order, but none of that was to any avail.  The recovery order was in September of 2008, but by October he was again absent without leave and back with mother.  The local authority was satisfied that what he needed was not so much the children’s home where they had currently to place him, but a therapeutic foster placement.  It was able to find one and to propose it, but the combined resistance of J supported by his mother made it impossible of achievement. 

10. As long ago as August 2008 mother had lodged an application to discharge the care order in relation to J, and indeed for that matter in relation to W as well.  In the event it did not come on for hearing until April 2009.  Consistently with its previous treatment of the first and second sons, the local authority took the position that the care order simply could not be effective in the face of the determined resistance of J, but particularly because he was supported by his mother.  Accordingly the local authority gave notice that whilst it was not what it wanted, it would not oppose the discharge which the mother sought in J’s case.  Reviewing the position, the Guardian ad Litem reached the same conclusion.  Accordingly, until a day or two before the hearing, the court was faced with a situation in which all parties accepted that the care order ought to be discharged.  At that point at the last moment mother changed her stance. Instead of pursuing her longstanding application for discharging the care order, she asked the judge to adjourn any hearing of her application, already some months old as it was, until after J had passed his sixteenth birthday.  Her purpose was transparent.  It was to enable J to qualify for the leaving care provisions and potentially for financial assistance after the care order had gone, as she hoped that it would.  Such assistance might include assistance to herself for food and accommodation provided to him. 

11. Accordingly mother sought leave to withdraw her application.  The judge in due course refused that but in any event he allowed the local authority to make its own application for discharge.  In the event his decision was that the order should indeed be discharged, and it is against that decision that mother now appeals, supported, as we say, not by the guardian, whose stance remains the same, but with perfect propriety by Mr Coleman, who appears for J on the basis of very recent instructions, which we of course accept J has been able to give directly through his solicitor.

12. The leaving care provisions were introduced into the Children Act 1989 by the Leaving Care Act 2000.  The purpose was clearly to try to place children who have been in the care of the local authority in some position at any rate approximating to the support which is enjoyed by children with responsible parents at the stage when they are beginning to become independent and will be leaving home.  Baroness Hale of Richmond put it succinctly in R (M) v Hammersmith and Fulham LBC [2008] UKHL 14, [2008] 1 FLR 1384 at paragraph 21:

“The aim was to supply for those older children the same sort of continuing support and guidance which children can normally expect from their own families as they move from childhood to adulthood.”

13. The leaving care provisions apply to a “relevant child as defined by section 23A(2) of the Children Act”.  In effect they apply to a child who is 16 or 17 who is no longer being looked after and who was “eligible” when last looked after.  For the concept of eligibility it is necessary to go to Schedule 2 of the Children Act, paragraph 19B(2), which provides that a child must have been looked after for a prescribed period after a prescribed age, but, critically for present purposes, ending after the age of 16.  The prescription is provided by the Children (Leaving Care) (England) Regulations, regulation 3.  A child must have been looked after for 13 weeks after the age of 14 and ending after 16.  J, who had been in care for some years, would satisfy that test if -- but only if -- he is still looked after some time after his sixteenth birthday.  

14. Accordingly, what mother was asking the judge to do was to preserve the care order, not because she thought it ought to continue for a length of time, but only so that it could continue beyond J’s sixteenth birthday and then be discharged. 

15. The judge took the view that this order ought to be discharged. 

16. For mother, Mr Hepher submits that he went wrong in a number of ways.  Principally, he submits that the judge erred in taking into account the emptiness of this particular care order and its lack of any effect.  Says Mr Hepher, that consideration was really neutral.  If the judge had properly considered the potential benefits to J under the leaving care provisions, he would have been bound to conclude that the order should be continued when applying the welfare test to this case.  Mr Hepher also urged on us the proposition that before a care order could be discharged, a positive benefit to the child must be demonstrated.  Thirdly, Mr Hepher submits that the judge erred in having regard to the position of the local authority under the order, and in particular to the potential impact of its duty under regulation 11 of the Placement of Children with Parents Regulations 1991.  In all those circumstances, he submits that the judge was wrong in law, and indeed plainly wrong in the exercise of any discretion that he had, to fail to find that this care order ought to be preserved until J was 16 in order that he should come within the leaving care provisions.

17. The test upon an application for discharge is clearly set out by this court as long ago as 1995 in Re S (Discharge of Care Order [1995] 2 FLR 639 at 643. As Waite LJ put it:

“Section 39 of the Act allows the court to discharge a care order on the application of (inter alios) a parent.  Here the jurisdiction is discretionary from the outset (there being no obligation on the parent to satisfy the court that the threshold requirements no longer apply).  The issue has to be determined by the court in accordance with s 1 of the Act, which (by s 1(1)) makes the child’s welfare the court’s paramount consideration …”

I need not read the remainder.

18. I entirely agree that the applicant for such an order must make out his case.  It does not follow from that that the test is simply a matter of listing potential benefits.  Welfare is a more complicated and rounded consideration than that.  I am quite satisfied that the judge is entitled to take into account the continuing effect, or in this case lack of effect, of the care order.

19. The judge found on ample evidence that this was a care order to which the local authority simply could not give proper effect.  It is true of course that the fact that a child who is the subject of a care order proves recalcitrant, obstructive and uncooperative is in no sense a justification for the local authority washing its hands of him.  Young people who are difficult, obstructive or recalcitrant are often precisely the young people for whom a care order is a necessary, if unwelcome, protection.  They may be children in considerable need.  J is certainly in some need, but that does not mean that the judge is not entitled to take account in his decision of what is involved in preserving a care order.  This one set up conflict. 

20. Pending the hearing of mother’s application, it is true that the local authority had reached the pragmatic conclusion that to attempt further recovery of J, and forcible return, would in the end do more harm than good.  But the fact remained that that pragmatic decision put the local authority in clear breach of its statutory duty.  The local authority was under the general duty provided for by section 22(3) of the Act to safeguard and promote J’s welfare.  Specifically where the child is allowed to live with a parent, the combination of section 23(4) and (5) is to permit it only in accordance with regulations.  The relevant regulations are the Placement of Children with Parents etc Regulations 1991 (SI 1991/893). 

21. A child may be permitted to live with a parent only according to regulation 4 if the local authority is satisfied that the placement is the most suitable way of performing its duty under section 22(3), that is to say, the duty to safeguard and promote the child’s welfare.  This authority was not so satisfied, just the contrary.  Under regulation 7, agreement must be reached with the parent as to plans and objectives and ancillary matters set out in Schedule 2.  The prospect of any sensible agreement in this case was exiguous.  Under Regulation 11,

“If it appears to a local authority that the placement is no longer in accordance with their duty in respect of the child under section 22(3) of the Act or would prejudice the safety of the child, they shall terminate the placement and shall remove the child forthwith from the person with whom he is placed.”

22. The judge overstated the position if, as seems likely, he concluded that the local authority would in fact attempt further forcible removal of J from his mother, but he did not overstate the legal duty of the authority to do so.  So long as this care order remained, the local authority could not comply with its duty under section 23(5) and the regulations, or with its duty under section 22(3) in the circumstances which in fact existed.  That, as it seems to me, was a relevant consideration for the judge, although of course not determinative. The attack on his conclusions for taking it into account, accordingly fails.

23. That consideration certainly needed to be balanced against the potential advantages under the leaving care provisions of preserving even an empty husk of a care order.  The judge did not in terms in his judgment identify those in any detail, but it is perfectly plain that he was conscious of them: this hearing had taken three days and a substantial amount of evidence had been given.  It was and had been solely the potential advantages of the leaving care provisions which were advanced as a reason for not discharging the care order.

24. For my part I can see that there might sometimes be cases in which a care order ought to be preserved for that reason.  We are told in the present case, albeit very belatedly, that J has ambitions to look for a tradesman’s course in bricklaying and he would, I have little doubt, if he were to cooperate, derive some benefit from such assistance as the local authority might give in looking for it.

25. That, however, would only arise if he would on the facts of his case be within the leaving care provisions.  In fact it seems to me he would not.  The relevant regulation is regulation 4 of the Children (Leaving Care) (England) Regulations 2001 (SI 2001/2874).  Sub paragraph (5) of the regulations says this:

“(5) Subject to paragraph (7), any child who has lived with a person falling within section 23(4) of the Act ("a family placement") for a continuous period of six months or more is not to be a relevant child despite falling within section 23A(2) of the Act.

(6) Paragraph (5) applies whether the period of six months commences before or after a child ceases to be looked after by a local authority.

(7) Where a family placement within the meaning of paragraph (5) breaks down and the child ceases to live with the person concerned, the child is to be treated as a relevant child.”

26. The reference in paragraph (5) to section 23(4) of the Act takes one to a list of persons who include a parent of the child.  J had by the time of the hearing before the judge been living with his parent, that is to say, his mother, for approximately six months since October of 2008.  Certainly now he has been living with her for a good deal longer than that. 

27. We were invited to hold that in order for regulation 4(5) to apply, the child must not only as a matter of fact have been living with his parent but have been placed there by the local authority, having a care order.  As it seems to me, there is no occasion to construe regulation 4(5) in that way.  The purpose of the leaving care regulations is transparently the one identified by Baroness Hale.  It is equally clear that the scheme of these regulations is to take out of the leaving care provisions children who, rather than having to turn to the local authority for substitute parents, are in fact living with their own parents. 

28. Regulation 4(5) seems to me to ask for an answer to a question of fact.  The insertion of the expression “a family placement” in brackets is explained by the necessity to anticipate paragraph 7, which would otherwise have to be expressed in complicated and inelegant terms.  There is, as it seems to me, no occasion to import into regulation  4(5) the concept of placement as it appears in other regulations, including the placement with Parents etc regulations.

29. In those circumstances J does not fall within the leaving care provisions in any event.  Even were the construction which has been urged on us correct, the leaving care provisions could only apply to him for a maximum of six months, if mother’s desire for the discharge of the care order were to be fulfilled immediately after his sixteenth birthday or as soon as a court appointment could be found.

30. A child living with a parent or parents who is thus outside the leaving care provisions is not, of course, without recourse to the resources of the local authority if at some time in the future his home should break down.  Such a child, if still under 18, would be likely to be a child in need and the local authority would have a clear obligation to accommodate if necessary under section 20.  Once it did so, the child would become a looked after child and would for that reason become a relevant child to whom the leaving care provisions would apply. 

31. For my part, I accept that a court faced with an application of this kind would need in some circumstances to be alert to the possible incentive to the local authority to resist the inclusion of additional young people in the leaving care provisions.  Those provisions are without doubt capable of being onerous.   The provisions are, however, the clear result of considered statutory obligation.  In another case a court might have to deal with the situation of a local authority seeking a discharge of a care order on the improper grounds that it would reduce the call on the leaving care provisions.  Neither, however, is not this case.  This local authority did its best on the judge’s findings with this care order.  It remained ready to make available a therapeutic foster placement for J.  The initiative for the discharge of the care order did not come from the local authority but from mother.  The local authority’s position was reluctantly to acquiesce in unfortunate reality.

32. Lastly, some criticism was directed to the judge for observing that it was contrary to J’s best interests for him to “learn a lesson that he can take from the Local Authority without giving anything in return; that he can ‘cock a snoop’ at it when it wants to exercise authority over him, but can still receive the benefits which may flow from the order which he otherwise disregards”.

33. For my part, I agree with Mr Hepher’s submission that the jurisdiction to discharge a care order must not be exercised as some kind of reprimand or punishment to a child, but that is not what the judge was saying.  What he was saying, in considering welfare generally, was that it is not in the interests of a child to learn that it is proper to take all the benefits without any responsibility in return.  That was clearly not the principal reason for the judge’s decision.  It was something which he expressed with some force in the course of an extempore judgment.  But it does, not I am satisfied, vitiate the proper basis for his decision which appears elsewhere in his judgement.

34. For all the reasons that I have endeavoured to set out, I am wholly unpersuaded by the proposition that the judge was wrong and in those circumstances I would dismiss this appeal.

35. I am reminded this was an application for leave.  For my part the course that I would take is to give leave, the point being arguable, but dismiss the appeal.

Lord Justice Laws:
36. I agree

Lord Justice Richards: 
37. I also agree

Order: Application granted; appeal dismissed