8.1 Care and supervision orders

Interim care or supervision orders may be made:

1. in proceedings for a care or supervision order which are adjourned; or
2. where the court orders a section 37 report. Note that this is the only time when the court can make a public law order without there being an application by a local authority or other authorised person: properly used it is a most important weapon the court's armoury.

Before making an interim order the court must be satisfied that:

1. there are reasonable grounds for believing that the threshold criteria under section 31 are satisfied;
2. that it is better for the child to make an order than to make no order; and
3. that the child's welfare having regard to section1(1) and (3) indicates that such an order should be made.

Section 38A confers power to make an exclusion requirement when making an interim care order. The exclusion requirement is not a separate order but is part of the interim care order. It does not apply when the court makes a final order. If protection is needed at that stage it may be necessary to invoke the inherent jurisdiction of the High Court.

8.2 Final care or supervision orders may be made when the court is satisfied:

1. on the balance of probabilities, that the threshold criteria under section 31 are satisfied;
2. that it is better for the child to make an order than to make no order; and
3. that, having regard to section 1(1) and (3), the welfare of the child requires such an order to be made.

8.3 The following table highlights the main similarities and differences between care and supervision orders.

8.4 In relation to supervision orders, see section 35 and Parts I & II of Schedule 3. Note in particular:

1. The power of the supervisor to give directions to the child is a power conferred upon the supervisor not on the court: paragraph 2, Schedule 3.
2. Obligations may be imposed on 'any responsible person' (that is, anyone with P.R. or with whom the child is living) only with that person's consent: paragraph 3, Schedule 3.
3. Specific provisions are made with regard to medical and psychiatric examinations of the supervised child: paragraph 4, Schedule 4.
4. The court cannot add on conditions to a supervision order unless they are obligations under paragraph 3 to which the responsible person has given consent, or for examinations in accordance with the provisions of paragraph 4.

8.5 Threshold
Section 31(2) provides:

'A court may only make a care or supervision order if it is satisfied:

a) that the child concerned is suffering, or is likely to suffer, significant harm; and
b) that the harm, or likelihood, is attributable to:

(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give him; or
(ii) the child's being beyond parental control.'

There are some key words and phrases that need further comment.

8.6 'Is suffering'

The relevant date is either:

1. the date of the hearing; or
2. the date the local authority initiated procedure for the protection of the child (usually the date of any EPO or when the application for a care or supervision order was made) provided that the arrangements for the child's protection have been continuously in place since that date. See Re M (A Minor)(Care Order: Threshold Conditions) [1994] 2 AC 424.

8.7 'Is likely to suffer'

The relevant date is the same as in paragraph 2. 'Likely' is used to mean a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm: see Re H and Others (Child Sexual Abuse: Standard of Proof) [1996] AC 563.

8.8 'Significant harm'

'Harm' is defined; 'significant' is not. Under section 31(9) 'harm' means:

1. ill-treatment (which includes sexual abuse and other forms of ill-treatment which are not physical); or
2. impairment of physical or mental health; or
3. impairment of physical, intellectual, emotional, social or behavioural development.
4. Some light is cast upon 'significant' by section 31(10) which provides:

'Where the question of whether harm suffered by a child is significant turns on the child's health or development, his health or development shall be compared with that which could reasonably be expected of a similar child.'

8.9 'If it is satisfied'

See generally Re H (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563 and paragraph 8.27 below:

1. The person who makes the allegation must prove it: the onus is therefore upon the local authority applying for the order.
2. The standard of proof is the balance of probabilities.
3. The more serious the allegation the more convincing the evidence needs to be in order to prove it.

8.10 Note that:

1. If it is not possible to determine which of two or more joint carers actually inflicted the particular harm, the threshold criteria will nonetheless be satisfied.
2. Similarly the criteria will be satisfied in respect of all the children of the family even if only one suffered the actual harm. See Re CB and JB (Care Proceedings: Guidelines) [1998] 2 FLR 211 and Lancashire County Council v B [2000] 1 FLR 583.
3. Admissions made in relation to threshold should always be reduced to writing. Where concessions are made which are sufficient to pass the threshold criteria and where it is agreed that a care order should be made, a court should be cautious about embarking upon a hearing merely because the concessions do not cover the entirety of the allegations made against the parents. However, if the court is satisfied that the concessions made do not reflect the broad justice of the case, particularly where that may impinge upon the future welfare of the children concerned, it is a legitimate exercise of discretion to refuse to proceed upon the basis of the concessions and to proceed to a hearing. See Re B (Agreed Findings of Fact) [1998] 2 FLR 968 and Re M (Threshold Criteria: Parental Concessions) [1999] 2 FLR 728 and Re D (Child: Threshold Criteria) (2000) 1 FLR 274.

8.11 The children's guardian

In specified proceedings (defined by section 41(6)), which include:

1. applications for care or supervision orders;
2. applications for the discharge of care orders;
3. applications for the variation or discharge of supervision orders;
4. applications for contact to a child in care; the court shall appoint a children's guardian ('CG').

8.12 The Official Solicitor will not act as a CG in public law proceedings in the county court.

8.13 If a CG has been involved in earlier related proceedings that is a material consideration: FPR rule 4.10(8). Consistency is important, and the mere fact that a CG has expressed a view within the earlier proceedings is highly unlikely to outweigh the 'overwhelming' advantages which flow from having a CG with detailed knowledge of the case: see Re J (Adoption: Appointment of Guardian ad Litem) [1999] 2 FLR 86.

8.14 The CG must appoint a solicitor: FPR rule 4.11(2). The solicitor so appointed must act on the instructions of the CG where the child is too young to give instructions himself. A conflict may arise between the views of a child of relatively mature years and those of the CG. If such a conflict arises:

1. the solicitor should conduct the proceedings in accordance with the instructions of the child: FPR rule 4.12(1)(a);
2. the CG should bring the matter back before the court: FPR rule 4.11(3);
3. thereafter the role of the CG is at the discretion of the court: FPR rule 4.11(3).

8.15 The usual practice is as follows:

1. the original solicitor acts for the child and takes instructions from him;
2. the CG continues to investigate and report in the usual way thereby ensuring that a neutral view of the child's welfare is presented to the court;
3. the CG appoints a new solicitor to represent him within the proceedings.

See Re M (Minors)(Care Proceedings: Child's Wishes) [1994] 1 FLR 749; Re H (A Minor)(Care Proceedings: Child's Wishes) [1993] 1 FLR 440; and Re P (Representation) [1996] 1 FLR 486.

8.16 The powers and duties of the CG are set out in FPR rule 4.11. In carrying out his duties the CG must have regard to:

1. the principle that delay is likely to be prejudicial to the welfare of the child;
2. the matters set out in section 1(3) - the 'welfare check list'.

8.17 The CG must undertake such investigations as may be necessary and, in particular:

1. interview such persons as he thinks appropriate or the court directs;
2. inspect relevant records (see paragraph 8.18 below);
3. obtain professional assistance which he thinks necessary or which the court directs him to obtain.

8.18 Section 42 of the Act confers on a duly appointed CG the right to inspect and take copies of certain documents and in particular:

1. a local authority's records in connection with the making or proposed making of the relevant application;
2. a local authority's records complied in connection with any functions referred to its social services committee under the Local Authority Social Services Act 1970 so far as they relate to the child.

8.19 Although section 42 confers a right upon a CG to inspect and take copies it does not prevent a local authority from claiming public interest immunity to prevent the further dissemination of the information (see paragraph 8.36 below). Further, even if public interest immunity is not claimed, a CG must take great care in disseminating sensitive information: see Re R (Care Proceedings: Disclosure) [2000] 2 FLR 751. As to the procedure to be adopted where public interest immunity is claimed: see Re C (Expert Evidence: Disclosure: Practice) [1995] 1 FLR 204.

8.20 Subject to observations above in relation to public interest immunity, where a CG takes a copy of any record pursuant to section 42(1), that copy is admissible as evidence of any matter referred to in any report the CG makes to the court, or in any evidence he gives to the court: see section 42(2). Further, section 41(11) provides:

'Regardless of any enactment or rule of law which would otherwise prevent it from doing so, the court may take account of:

a) any statement contained in a report made by a guardian ad litem who is appointed ... for the purpose of the proceedings in question; and
b) any evidence given in respect of the matters referred to in the report, in so far as the statement or evidence is, in the opinion of the court, relevant to the question which the court is considering.'

8.21 Case management and directions

One of the most effective tools in case management, and one which militates against delay, is setting the final hearing at the earliest opportunity. If possible, a final hearing date should be set and the trial judge identified at the first directions hearing. (Note the observations of Wall J in Re G (Minors)(Expert Witnesses) [1994] 2 FLR 291 where he indicated that it might not be possible to fix the final hearing date until the local authority had completed its assessment for it would only be at that point that the likely issues would become clear.)

It is important to deal with any potential issues like disability or communication problems.

8.22 Joinder

Any person wishing to be joined may apply and the court can join any person as a respondent without the necessity of a formal application. Note that:

1. an application by a parent with PR must be granted;
2. an application by a parent without PR should be granted unless there are good reasons for refusing it;
3. an application by any other person will not be granted unless that person can present an arguable case for the relief he or she seeks;
4. an application by a person who is essentially presenting the same case as an existing party will not normally be granted;
5. an application by foster-parents may be considered as contrary to the policy of the Act and normally their views can be put before the court either as witnesses or through the guardian ad litem.

There is also power to 'join' a person in respect of a particular issue without granting that person full party status: see Re H (Care Proceedings: Intervener) [2000] 1 FLR 775.

8.23 Split trials

If there is a real possibility of a split trial, that issue should be considered at the earliest opportunity. The cases which are most amenable to a split trial are those where:

1. there is an issue whether or not an injury/injuries was/were accidental;
2. there is a disputed allegation of sexual abuse.

8.24 If a split trial is ordered it is important to ensure that:

1. the issue is sufficiently defined;
2. the evidence is strictly controlled to that which is relevant to a determination of that issue;
3. expert evidence is obtained upon the basis of joint instructions (but note: it is difficult to resist an application by a parent for leave to instruct his or her own expert in a case where there is a serious injury which the parent is asserting was accidental);
4. any expert can comply with the court's timetable;
5. the date of the disposal hearing must be fixed at the same time as the date of the first hearing is fixed;
6. both hearings are dealt with by the same judge.

See Re S (Care Proceedings: Split Hearing) [1996] 2 FLR 773; Re CB and JB (Care Proceedings: Guidelines) [1998] 2 FLR 211; and Re CD and MD (Care Proceedings: Practice) [1998] 1 FLR 825.

8.25 Assessments

Whether undertaken by a local authority or an expert witness, assessments are time consuming. Guard against duplication. There is no power to compel a local authority to carry out an assessment of the parents. However the absence of such an assessment will be a lacuna in the authority's evidence and is likely to prevent a court from making a final order. There is power to order an assessment of the child. Section 38(6) provides: 'Where the court makes an interim care order, or an interim supervision order, it may give such directions (if any) as it considers appropriate with regard to the medical or psychiatric examination or other assessment of the child ...'

8.26 The following should be noted:

1. the power is to order assessment not treatment: if the primary aim is treatment or therapy there is no power to order it. However a programme of assessment is not outside the ambit of section 38(6) merely because it involves an element of treatment or therapy;
2. the assessment may be of parents but only if together with the child or children concerned;
3. 'other assessment' is not to be construed ejusdem generis with 'medical or psychiatric examination';
4. the object of ordering an assessment is to enable a proper decision to be made;
5. whether it is 'appropriate' to order an assessment depend upon a consideration of all the circumstances;
6. any assessment has to be paid for: accordingly the cost of a proposed assessment must be considered in the light of social services budget as a whole so that it is not unreasonable for the local authority to fund it.

See: Re C (A Minor)(Interim Care Order: Residential Assessment) [1997] AC 489 and Re M (Residential Assessment Directions) [1998] 2 FLR 371.

Note that section 38(7) confers a power to prevent assessments.

8.27 Evidence

The following guidance is intended merely to highlight a number of topics and issues which frequently occur in public law cases. In general, remember that the standard of proof is the general civil standard, namely, the balance of probabilities.

'When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability É this does not mean that where a serious allegation is in issue the standard of proof is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, an event occurred.' per Lord Nicholls in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, sub nom Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80.

8.28 Butler-Sloss LJ has identified a two-stage approach:

1. fact finding: the court enquires into the facts and makes findings on a balance of probabilities;
2. the exercise of discretion: this may involve the court in assessing possibilities, e.g. the risk of future harm to the child concerned if a certain course is adopted and a particular order made.

Note that the assessment of future harm cannot be based upon a mere suspicion that the child has suffered harm in the past, but only upon facts established to the required standard. See Re K (Minors) (Child Abuse: Evidence) [1989] 2 FLR 313 and Re M and R (Child Abuse: Evidence) [1996] 2 FLR 195.

8.29 Hearsay

By virtue of the Children (Admissibility of Hearsay Evidence) Order 1993, hearsay evidence is admissible in proceedings concerning a child's upbringing, maintenance or welfare. See also paragraph 8.20 above.

8.30 Confidentially and disclosure

Section 12(1) of the Administration of Justice Act 1970 (as amended) provides:

'The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases ...

a) where the proceedings:

(ii) are brought under the Children Act 1989 ...'

8.31 Despite the absolute nature of the prohibition it is settled that the common law implies into the statute a dispensing power which is vested in the court and which enables the court to authorise publication. That power may be exercised in favour of a party or a non-party. See Re X, Y and Z (Wardship: Disclosure of Material) [1992] 1 FLR 84.

8.32 Rule 4.23 of the FPR provides:

'... no document, other than a record of an order, held by the court and relating to proceedings to which this Part applies shall be disclosed, other than to:

a) a party;
b) the legal representative of a party;
c) the guardian ad litem;
d) the Legal Aid Board, or
e) a children and family reporter. without leave of the judge or district judge.

' It is important to note:

1. the confidentiality is that of the court, not of the parties or of the child concerned;
2. it follows that it is not competent for anyone, including a children's guardian, to waive confidentiality: that is a privilege which is vested uniquely in the court.

8.33 Examples of frequent applications for disclosure:

1. for use by the police in intended criminal proceedings
2. for use by a party in defence of criminal proceedings
3. for use by a party in civil proceedings
4. for use by a local authority, or independent person, in the investigation or defence of a complaint against the local authority.

The above list is by no means exhaustive: other examples can be found in the authorities and text books.

8.34 Applications for disclosure almost always call for a delicate balancing exercise. The factors which most often need to be weighed include:

1. The welfare of the child concerned. If his welfare would be prejudiced this is likely to weigh against disclosure. On the other hand, an absence of prejudice to the child's welfare may weight in favour of disclosure. Although this is an important consideration it is not conclusive.
2. The public interest in the administration of justice which dictates that barriers should not be erected between one branch of the judicature and another and also that a fair trial is ensured.
3. The public interest in ensuring the prosecution of serious criminal offences.
4. The importance of maintaining confidentiality in children cases.
5. The welfare and interests of other children in general.
6. The desirability of ensuring and promoting co-operations between agencies concerned with the welfare of children.

8.35 Note that when dealing with an application for disclosure consider:

1. whether all the documents of which disclosure is sought are really necessary for the given purpose; and
2. if disclosure is ordered as a general rule it should be limited to particular persons or classes of person: it is seldom appropriate to permit unrestricted disclosure.

8.36 Documents in the possession of third parties and public interest immunity

If documents are in the possession of a person who is not a party to the litigation the appropriate method to obtain their disclosure is by witness summons in the county court or subpoena duces tecum in the High Court.

Note that the provisions of the original (i.e. pre-26 April 1999) Rules of the Supreme Court and County Court Rules continue to apply to proceedings under the Children Act.

8.37 The party responding to the summons or subpoena may object - often on the grounds of public interest immunity - to producing and disclosing the documents concerned. It is then for the court to determine the issue.

The most frequently encountered applications are for disclosure of documents in the possession of the police or CPS. If objection is taken the court has to balance (a) the public interest in maintaining the confidentiality of the documents concerned the disclosure of which may prejudice or inhibit an on-going investigation or pending prosecution, or which may lead to a possible contamination of the evidence, against (b) the public interest in ensuring that the court has all the material available to it to allow it to discharge its statutory obligation to make a decision with the welfare of the child concerned as its paramount consideration.

8.38 Documents in the possession of the local authority and public interest immunity

The first principle is that a local authority has a duty to disclose all relevant material affecting the child and the proceedings, other than that protected by public interest immunity, which might assist parents rebutting the allegations made against them or which might modify or cast doubt upon its case. See R v Hampshire County Council ex parte K and Another [1990] 2 QB 71 and Re C (Expert Evidence: Disclosure: Practice) [1995] 1 FLR 204.

8.39 The second principle is that social work records are covered by public interest immunity. See Re M (A Minor) (Disclosure of Material) [1990] 2 FLR 36. Although, subject to public interest immunity there is no absolute rule against disclosure, the court retains the power to order disclosure and applications for the disclosure of such documents are frequently made. Although there is no single test and it is a question of balance, the following factors may be of importance:

1. the evidential importance of the material to the facts of the particular case and the particular issues with which the court is, or is likely to be concerned
2. the duty of all parties to give full and frank disclosure
3. documents recording or containing opinions and advice should, in general, attract a higher degree of immunity from production
4. on the other hand, documents which merely record matters of fact are generally likely to attract a degree of immunity.

Re C (Expert Evidence: Disclosure: Practice) supra, sets out the procedure which should be followed by the parties and the court when confronted by a potential public interest immunity problem in respect of documents held by a local authority.

8.40 Documents in the possession of a party and legal professional privilege

Every party is under a duty to give full and frank disclosure: see Practice Direction: Case Management [1995] 1 FLR 456. That duty is limited by the extent to which a party can, as a matter of law, resist giving disclosure. The usual ground advanced to resist disclosure is an assertion of legal professional privilege. There are two aspects, or species, of legal professional privilege:

1. legal advice privilege - classically, advice and communication between a solicitor and his client;
2. litigation privilege:

a) communications between a legal adviser and third parties, often potential expert witnesses, made with a view of obtaining or giving advice or the collection of evidence in respect of actual or contemplated litigation, and
b) communications between the client and third parties the dominant purpose of which is to obtain legal advice or to aid the conduct of actual or potential litigation.

8.41 Following Re L (A Minor) (Police Investigation: Privilege) [1997] A.C. 16, [1996] 1 FLR 731 and S County Council v B [2000] 2 FLR 161 the position would appear to be as follows:

1. a party to proceedings pursuant to the Children Act cannot maintain a claim for litigation privilege in respect of material which has come into existence as a result of such proceedings
2. a party to proceedings pursuant to the Children Act may successfully maintain a claim for litigation privilege in respect of material which has come into existence as a result of other proceedings and in respect of which there has been no waiver of privilege.

Thus communications between a solicitor and potential expert witness, and indeed the report of such a witness, who has been instructed in and for the purposes of the Children Act proceedings, are not privileged and disclosure can, and will, be ordered. On the other hand, an expert report prepared for the purposes of other proceedings, e.g. a civil claim for damages, is subject to litigation privilege within those other proceedings unless and until it is disclosed within those proceedings. Once privileged, always privileged and hence a claim for litigation privilege can be maintained in respect of such material in proceedings pursuant to the Children Act, provided the privilege has not been waived by, e.g. the material being disclosed in the civil proceedings.

8.42 Care plans

These documents, which in many ways lie at the heart of public law proceedings, are prepared by local authorities following guidance, in particular, from the Department of Health, and yet there is no mention of them in the Act. The guidance specifies the matters to be dealt with in care plans. Such guidance is binding on local authorities as it is made pursuant to section 7 of the Local Authority Social Services Act 1970.

LAC(99)29 Care Plans and Care Proceedings under the Children Act 1989, offers a structure for care plans which is divided into five sections:

1. overall aims
2. the child's needs
3. the views of others, e.g. parents
4. placement details and timetable
5. details of the management and support to be provided.

8.43 It is the duty of the court to scrutinise the care plan: see Re J (Minors) (Care: Care Plan) [1994] 1 FLR 253. There may be a tension between the views of the court and those of the local authority as expressed in its care plan. If the court is concerned that the care plan is deficient in a material way it may decline to make a final order. However, the scheme of the Act is to provide that upon making a final care order, responsibility for the child's welfare passes from the court to the local authority. Accordingly, it is wrong when all the material evidence is available to use interim orders as a means of achieving a supervisory power. On the other hand, it is perfectly proper to decline to make a final order and to make a further interim order where the court is not satisfied about any material aspect of the care plan so that it can reasonably and properly be said that further evidence is required before the plan is approved.

8.44 The care plan will contain details of the contact which is proposed. Reference should be made to paragraph

8.45 below, with which this paragraph should be read. Section 34(11) of the Act provides:

'Before making a care order with respect to any child the court shall:

a) consider the arrangements which the authority have made, or propose to make, for affording any person contact with the child to whom this section applies: and
b) invite the parties to the proceedings to comment on those arrangements.'

But note (consistent with the scheme of the Act):

1. When making a final care order it is not open to the court to attempt to retain control, or a supervisory role by ordering a general review of the progress of the care plan and, in particular, of the contact arrangements at some date in the future.
2. On the other hand, a court when making a final care order, may, pursuant to section 34 of the Act and, if appropriate, of its own motion, make an interim order for contact and set a further hearing to consider more definite arrangements for contact.

Accordingly, if the underlying reality is that it is the care plan which it is sought to review then that is inconsistent with the scheme of the Act. However, a review of the arrangements for implementing contact and the precise extent of contact is compatible with section 34. See: Re B (A Minor)(Care Order: Review) [1993] 1 FLR 421 and Re S (A Minor)(Care: Contact Order) [1994] 1 FLR 222.

8.45 Contact with a child in care

The statutory framework is set out in section 34 of the Act. The general rule is that a local authority must allow reasonable contact between the child in care and his parents (and the other persons specified in section 34(1) of the Act): see section 34(1) and also paragraph 15 of Schedule 2 to the Act. Accordingly an order for reasonable contact is otiose.

Reasonable contact implies contact which is, in effect, agreed by the parents and the local authority to be reasonable in the particular circumstances of the case. If there is no agreement as to what is reasonable in the circumstances of a particular case the test is what is objectively reasonable having regard to the local authority's general duty to safeguard and promote the welfare of the child concerned: see Re P (Contact with Children in Care) [1993] 2 FLR 156.

When making a care order the court has power to make a specific contact order even though no application for such an order has been made: see section 34(5). The power of a local authority to refuse contact is constrained by section 34(6). However, a local authority can apply to the court for an order authorising it to refuse contact: section 34(4). Before making such an order the court should:

1. carefully assess the local authority's plan;
2. scrutinise the reasons advanced by the local authority for refusing contact;
3. weigh the potential advantages and disadvantages.

See: Re D and H (Care: Termination of Contact) [1997] 1 FLR 841.

8.46 Applications for contact and applications to refuse contact require careful consideration and often call for a delicate balance to be struck. The following points have been extracted from the authorities but do not pretend to be comprehensive:

1. applications should be decided with the child's welfare as the court's paramount consideration and having regard to section 1(3) - the 'Welfare Check List';
2. consideration should be given to the purpose of the contact: is it a genuine request for contact or is it a back door attack upon the whole basis of the care order?
3. the presumption in favour of contact has to be balanced against the long-term welfare of the child considered in the light of where he will be living in the future;
4. contact must not be allowed to destabilise the child's placement;
5. contact can be of considerable importance even where the plan is for permanent care outside the family;
6. an order pursuant to section 34(4) should not be made while there is a realistic possibility of rehabilitation;
7. on the other hand an order pursuant to section 34(4) may be appropriate where there is no prospect of rehabilitation and the plan is for permanent placement substitute care.

See: Re B (Minors)(Care: Contact: Local Authority's Plans) [1993] 1 FLR 543; Re E (A Minor: Care Order: Contact) [1994] 1 FLR 146; Berkshire County Council v B [1997] 1 FLR 171; Re T (Termination of Contact: Discharge of Order) [1997] 1 FLR 517; and Re D and H (Care: Termination of Contact) [1997] 1 LFR 841.

8.47 Discharge and variation

The statutory framework is set out in section 39. The following may apply to discharge a care order:

1. any person with PR;
2. the child himself;
3. the local authority.

On application by a person entitled to apply for the discharge of a care order the court may substitute a supervision order for the existing care order. There is no requirement for the threshold criteria under section 31(2) to be satisfied at the date of substitution: see section 39(4) and (5).

8.48 The sole criterion for the discharge of a care order or the variation or discharge of a supervision order is the welfare of the child concerned. The burden of proving that it is in the child's interests for the order to be discharged or varied is upon the person applying for the order however:

1. it is for the court to decide where on the spectrum of procedure the particular application falls
2. it is for the court to decide the extent of the oral evidence which it is necessary to hear.

See: Re B (Minors)(Contact) [1994] 2 FLR 1 and Re S and P (Discharge of Care Order) [1995] 2 FLR 782.

It is important to guard against a discharge application being used as a back door appeal against the original order.

8.49 The making of a residence order (including an interim order) automatically discharges a care order: section 91(1). Section 91(15) constrains the number of discharge applications which can be made by providing that a further application cannot be made, without first obtaining leave, unless six months has elapsed.

8.50 Secure accommodation orders: section 25, Children Act 1989

These orders and section 25 of the Children Act relate to:

1. accommodation which restricts liberty which will usually (but need not) be accommodation described as 'secure';
2. children who have not attained the age of 16 (unless subject to a care order);
3. children who are being 'looked after' by a local authoirty under Part III of the Act;
4. an application made by that authority or by an approved body (e.g. a NHS Trust) providing accommodation.

An order can only be made if the statutory criteria set out in section 25(1) of the Act are established to the satisfaction of the court. It should be noted:

1. an order can only be made if these criteria are satisfied whatever other risk may be feared;
2. moreover if, during the currency of an order, the criteria are no longer satisfied, the accommodation should not continue;
3. an application, once made, means that the court must consider whether the criteria are made out: section 25(3);
4. if the criteria are made out, then an order must be made: see section 25(4);
5. an application under this section is not subject to section 1 of the Act: see Re M (Secure Accommodation Order) [1995] 1 FLR 418 (CA)
6. these are specified proceedings so that a CG must be appointed;
7. a child the subject of such an application is entitled to be represented: see section 25(6).

The relevance of the welfare of the child in these proceedings is a difficult area. It is relevant and must be considered both by the court and the children's guardian. However, it is not decisive; it will, however, be particularly relevant where the court is given a discretion, e.g. as to the length of an order.

Other points to note are:

1. an order is subject to section 20(8) of the Act, i.e. where a child is voluntarily accommodated, any person with parental responsibility may remove the child;
2. an order does not prejudice other powers of the court to give directions: see section 25(8);
3. the court has power to make interim orders under section 25(5);
4. if the child is on bail in relation to criminal proceedings, care must be taken to avoid inconsistent orders.

The powers given to the court pursuant to section 25 are compliant with Article 5 of the European Convention of Human Rights: see Re K (A Child) Secure Accommodation Order: right to liberty) [2000] All ER (D) 1834. However, the court should always have in mind the terms of Article 5(1)(d) - 'for the purposes of educational supervision'.