Discharging Care Orders

Image of a mum holding a child up in her arms

One of the many topics we must ensure that we advise our client is how to apply to discharge a Care Order.

Given the strict 26 weeks deadline for a care proceedings case to conclude, there is always a worry that parents may not have enough time to make the changes expected of them by social services and the court.

This in turn leads to final orders being made for their child to be accommodated by social services, under a Care Order.

A parent needs to know what the process is to apply to discharge a Care Order.

The Law

1. Under section 39 of the Children Act 1989 (CA 1989) an application can be made to discharge a care order by the following:

(a) any person who has parental responsibility for the child;
(b) the child himself; or
(c) the local authority designated by the order.

2. When considering such application, the court also has to consider the welfare checklist at section 1 of the CA 1989. The applicant has to show that the application is in the best interests of the child.

3. Re TT (children) (discharge of care order) [2021] EWCA Civ 742, [2021] All ER (D) 58 (May) considered the legal guidance for an application to discharge a care order. The main points in summary were:

– Any decision must be made in accordance with S.1 of the CA 1989 and principles given appropriate weight
– Once welfare is considered there will be consideration as to any interference with any convention rights, that this is necessary and proportionate
– The applicant must make out a clear case for discharge, showing evidence that this is in the child’s best interests. The findings in relation to the making of the care order will be relevant, but vary case to case
– The welfare decision is made at the time of the application, the threshold from making the care order is not of relevance. The Local Authority do not have to re prove threshold nor the applicant prove that it no longer applies

All parents would argue that it is best for their child to be returned to their care. The court needs to be satisfied that the child would benefit from returning home, rather than remaining accommodated by social services.

The need to increase contact first

We would always advise a parent to try and increase their contact with the child before applying to discharge a Care Order. The more contact they have, the more argument there is that the child should return home.

Legal Aid criteria for discharging a Care Order

A parent must be made aware that applying to discharge a Care Order is not an easy process and can take some time.

A parent would likely need to engage in updating assessments to consider their ability to care for the child now.

A parent would not be automatically entitled to legal aid funding. We would need to assess each parent on a means and merits based test.

If a parent is receiving Universal Credit then the means based test is passed.

If a parent is working and has an income that exceeds the legal aid threshold, it may be that they must fund the application themselves, pay a contribution, or represent themselves as a “litigant in person.”

The merits based test looks at the prospects of success in making the application. If it is very unlikely that the application will be successful then legal aid may not be granted. A parent will need to show some changes to their situation.

Each case is different so we would need to assess on the facts of the case.

Get in touch with our care solicitors

Looking for legal advice and support with Discharging Care Orders in Gloucester, Cheltenham, the Forest of Dean or anywhere in Gloucestershire?

Please contact our Care team today by calling 0800 1584147, emailing info@tayntons.co.uk or requesting a call back.


To contact us please call 0800 158 4147 or 03330 145451 or email info@tayntons.co.uk

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