Discharge of care orders

Dr Jo Staines, Dr Jessica Roy and Dr Beth Stone of the University of Bristol set out the issues that arise when applications are made by parents for the discharge of care orders in England and Wales.

Deciding whether to discharge, or end, a care order – itself one of the most significant state interventions in children’s lives – is a crucial decision. Discharging a care order can lead to the withdrawal of state statutory support and supervision for children and their families; not discharging the care order means that families may experience unwarranted social work intervention and feel stigmatised or labelled.  Keeping a child in care unnecessarily also uses up social workers’ time and resources, which could be better used supporting other children.

Despite its importance, little is known about the discharge process, particularly how, when and why care orders are ended. Discharge proceedings can be lengthy, potentially traumatising for parents and children alike. Understanding more about discharge proceedings is necessary to explore if and how law, policy and practice should change to better meets the needs of all those involved.

This study is the first national study of discharge of care orders in England and Wales. The study draws three data sources together:  interviews with professionals including social workers, independent reviewing officers (IRO), judges and guardians; an in-depth analysis of court casefile records; and anonymised national data on discharge applications. Here, we focus on just one aspect of the study’s findings, namely some of the issues that arose when applications were made by parents, rather than by the local authority.

Overall, the national data highlighted a significant increase in the number of discharge applications over the last decade, from 71 in 2010 to 1589 in 2019. In about two thirds of cases, the local authority applied for the discharge, with parents applying in about a third of cases; there were very few applications made by children themselves. However, there was some regional variation, with the opposite being true in London and the South East, where the majority of applications were made by parents.

Where there were lower numbers of parental applications, some interview participants suggested that parents might not even know that they were able to apply for discharge:

it's something that local authority leads and I would probably hasten to say that the majority of our parents wouldn’t know that they would have that capacity that they have that kind of power. You know they automatically see the care order and you know we're in charge, we call the shots. The care order is discharged when you [the LA] say it's ready to be. (Social Worker)

Where parents had applied for discharge, interview participants noted how the complexities of the legal system could leave parents feeling ostracised and marginalised. Furthermore, applications for discharge could be re-traumatising for parents:

the trauma that they feel at the time of the initial proceedings, it’s re-triggered by the idea of going back for a discharge. I hadn't anticipated that at all, that an application to discharge would be triggering for them. (Social Worker)

While most local authority applications were concluded within one or two hearings, some parental applications could take much longer: none were discharged at the first hearing, and a third of all parent applications lasted five hearings or more, indicating that these cases could be particularly time and resource intensive.

Parental applications were much less likely to be granted than those made by the local authority, likely because local authority social workers have more opportunity to scrutinise and seek guidance on applications prior to submission than do parents and because local authorities are more likely to seek discharge in relatively stable situations. There were some circumstances where parents applied because the local authority was delayed in doing so.

Further, from the analysis, it was evident that parents sometimes used the discharge process not to seek discharge itself, but to challenge the local authority’s care plan for their child. For example, some parents wanted contact arrangements or the child’s placement to change and applied for discharge as a means to force the local authority to consider their request:

It's sometimes frustration. They don't feel that they are being listened to by the local authority and they do it to try to, you know, basically to force the issue (Lawyer)

There could be limited avenues for parents to challenge local authority decisions and the court arena gave parents the opportunity to get their voices heard:

The remedies available to parents aren't that great once a care order’s made. I mean theoretically you can go to the Ombudsman, but they never do. There's a complaints process, but that is purely internal and usually you know doesn't leave them feeling listened to… because the procedure is the social workers investigating themselves (Lawyer)

Further, whilst these applications rarely ended in discharge, they could result in outcomes which were beneficial to parents such as preventing child removal or increasing contact. The provision of good legal advice could help to identify alternative processes and to ‘flush out what actually a parent was trying to achieve’ (Judge). However, it was clear that not all parents were represented, particularly in applications made by the local authority. The professionals we spoke to noted how parents often had very little advice about how to approach a discharge application:

I think the court arena is so alien to most parents, I think it’s incredibly difficult for them to navigate it without legal advice and legal representation... That’s actually really difficult for a lot of the parents we work with... Whether it would need to be legal representation or just a specific support person, I don’t know, but I think courts are so intimidating and work in such a peculiar way to anyone who has never had anything to do with them (IRO)

Having appropriate legal advice prior to submitting an application was seen as crucial for parents, particularly as a way of avoiding the submission of applications that were premature, had minimal chance of success and caused more disruption to the child.

It was noted, however, that parents often did not have this kind of advice prior to application due to a lack of public funding:

I think the problem is, it’s kind of unmediated as it were. Parents can just put in their application… it inevitably causes disruption to the child if it’s a hopeless application ... there should be some kind of hurdle you surmount before you’re allowed to issue your application. It used to be you went to see a solicitor who said ‘don’t be daft’ but that’s not there now (Judge)

Good legal advice, however, was not just needed to advise parents against making applications. It could also empower parents to make strong applications when the LA had failed to act proactively.

Recommendations

The establishment of a pre-proceedings process, similar to that used in care proceedings, could help to identify cases where the local authority should proactively lead on a discharge application and also cases that should be diverted to alternative resolution mechanisms. Currently given the lack of suitable alternatives and the apparent frustration caused by local authority delays, the use of the discharge process by parents to challenge the LA seems to be a relatively rational and proportionate response. Without alternative meaningful processes which parents can engage in, it is likely that the discharge process will continue to be used to force re-examination of other issues.

Whichever route parents choose, be it to submit a discharge application or to seek change through alternative solutions, the provision of good legal advice is crucial. This will help to reduce re-traumatisation, help to ensure parents understand their rights and options, and lessen the pressures on court time and resources.

The project was funded by the Nuffield Foundation, but the views expressed are those of the authors and not necessarily the Foundation.

The full research team included:  Jo Staines (PI), Beth Stone, Jessica Roy, Judith Masson, Gillian Macdonald, Ludivine Garside and Helen Hodges.