Discharge or Variation of Care Orders

What Discharge and Variation Mean

A care order other than an interim order runs until your child turns 18 unless it is brought to an end earlier. Section 39 of the Children Act 1989 is the route for ending it before then.

A final care order cannot be rewritten, so variation here means one of three things. The court may substitute a supervision order for the care order, and when it does, any provision that would otherwise require the section 31(2) threshold to be satisfied at that point is disregarded. A supervision order can itself be varied or discharged, and an order about contact under section 34 can be varied or discharged on the application of the authority, the child or the person named in it. An interim care order is different: where it contains an exclusion requirement, the person excluded may apply to vary or discharge the order so far as it imposes that requirement.

Some orders end a care order with no section 39 application. A child arrangements order about who your child is to live with discharges a care order, and so does a special guardianship order.

Who May Apply and Who Needs Permission

Section 39 names three applicants and no others: a person with parental responsibility for the child, the child, and the local authority designated by the order. A mother has parental responsibility from birth, a father or second parent may not, and without it you cannot apply in your own right. Our parental responsibility page explains the routes.

A relative is on that list only if they hold parental responsibility, for example as the child's guardian or special guardian, and most grandparents, aunts, uncles and foster carers do not, so a relative who wants the child home usually applies for a different order. A child arrangements order naming them as a person the child is to live with discharges the care order, and a relative is entitled to apply where the child has lived with them for at least a year immediately before the application. Otherwise permission comes first, and the court has particular regard to the nature of the proposed application, the applicant's connection with the child, the risk of disrupting the child's life, the authority's plans for the child and the wishes and feelings of your child's parents.

The other route is special guardianship, which also discharges a care order. Written notice must reach the authority at least three months before the application, and the authority must investigate and report to the court, which may not make the order without that report.

Repeat applications are restricted. Once an application to discharge, or to substitute a supervision order, has been made, a further application of either kind, by anyone, needs the court's permission unless more than six months have passed since the last was disposed of. The court may also order that no application of a specified kind may be made about your child by a named person without its permission.

What the Court Weighs

Section 39 sets no test of its own, so the court decides under section 1. Your child's welfare is the paramount consideration, and because it is considering whether to discharge an order under Part 4 the welfare checklist applies in full:

• your child's wishes and feelings, given their age and understanding
• their physical, emotional and educational needs
• the likely effect of any change in their circumstances
• their age, sex, background and any relevant characteristic
• any harm suffered or risked
• how capable each parent, and anyone else relevant, is of meeting their needs
• the range of powers available to the court

The court must also have regard to the principle that delay is likely to prejudice your child's welfare, and may not make an order unless that would be better for the child than making none. You are not asked to prove the grounds for the original order have fallen away: section 39 does not require it.

Three outcomes are open: discharge the order, substitute a supervision order, or refuse and leave the care order in place. The court may also make an order about contact even where nobody has applied for one. Your child's interests are separately represented: a discharge application is specified proceedings, so the court appoints an officer of the Children and Family Court Advisory and Support Service for the child unless satisfied that is not necessary.

Evidence and Common Problems

A discharge application turns on evidence of change, concern by concern rather than in general terms. What carries weight is usually:

• the threshold statement and the care plan taken one concern at a time, with evidence of what has changed about each
• independent evidence rather than assertion: testing where substance misuse was the issue, a completed programme, a letter from a treating clinician, a tenancy agreement
• the authority's own material: review minutes, the reviewing officer's view, social work records since the order
• your child's wishes and feelings, and the views of whoever cares for them
• a plan the court can test: where your child would live, who else is in the household, schooling, support

The commonest problems are applying before anything has actually changed, applying when contact is the real dispute and a section 34 order was the thing to ask for. Discharge is also confused with appeal: an appeal argues that the order should not have been made on the evidence at the time, and has a short time limit set by Part 30 of the Family Procedure Rules.

Not every change needs an application. Regulations require the authority to keep the care plan under review and to consider whether it should seek a change in your child's legal status at each statutory review. Every authority must also run a procedure for considering representations and complaints from parents.

How an Application to Discharge Works

1. We read the care order, the care plan, the threshold statement and the review records, and identify what has changed against each concern and what to ask the court for.
2. We raise it with the authority first, asking the social worker and the independent reviewing officer to put a change of legal status on the next review agenda. Their answer goes into the application.
3. Where a previous application was disposed of within the last six months, or an order restricts further applications, we apply for permission first.
4. The application is issued in the family court. Form C110A is the public law form Practice Direction 5A describes as covering a care or supervision order and other orders under Part 4 of the Act. Fees are on the GOV.UK court fees page.
5. At the first hearing the court gives directions, appoints an officer for your child and sets the timetable. Section 32 requires the court to draw that timetable up with a view to disposing of an application for an order under Part 4 without delay.
6. You file a statement and the evidence of change, the authority files its evidence and an updated care plan, and the officer appointed for your child files an analysis of the options.
7. At the final hearing the court decides whether to discharge the order, substitute a supervision order or leave it in place, and deals with contact. If it refuses, it may restrict further applications.

When Legal Advice Is Especially Important

Advice matters most where:

• the care plan is adoption: once a placement order is made the care order does not have effect while that order is in force, so the application is to revoke the placement order, it needs the court's permission and a change in circumstances, and it cannot be made once your child has been placed for adoption; our adoption page covers that ground
• your child is living at home under the care order and the authority will not agree to end it
• a relative wants to care for your child, so the application is a child arrangements order or special guardianship
• contact is the real dispute
• the concerns rest on disputed allegations that need findings of fact
• the authority has applied to discharge the order on a plan you reject

Funding differs from the care proceedings themselves. In the care or supervision application a parent, anyone else with parental responsibility and the child can usually get legal aid that is not means tested, from a solicitor who holds a legal aid contract. A later free standing application to discharge is not in that category: for a parent, legal aid for it is means and merits tested. RakLAW does not hold a legal aid contract and acts on a privately funded basis. The Family Rights Group helpline on 0808 801 0366 supports parents. If you or your child are in immediate danger call 999; the National Domestic Abuse Helpline is 0808 2000 247.

How RakLAW Solicitors Can Help

We act for parents and relatives from our office at 42 Shad Thames in Southwark, a short walk from Tower Bridge. The firm was founded by solicitor Rakesh Prajapati and is regulated by the SRA. A discharge application usually follows care proceedings that another firm conducted, so the first job is to read the file and say honestly whether applying now is the right move.

We go through each concern behind the care order and the evidence that answers it, prepare your statement and your plan for your child, and put the application at each hearing. Where discharge is premature we say so and work on what happens in the meantime, from the placement to how social services work with you.

The first 15-minute consultation is free. Our charges are on the family law fees page, you can book an appointment online or call 0203 345 2000, and our care proceedings and social services hub covers the related orders.