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Discharge of care orders - what are the factors to consider?

A large number of public law proceedings conclude with a Care Order having been made and a care plan of long term foster care. Parents often ask "what can I do in the future to have the Care Order discharged and to have the children returned to my care?"

The basic principle is that if a parent is seeking to apply to discharge the Care Order they must show a materialistic change of circumstances since the Care Order was made, that a Care Order is no longer necessary and proportionate and that it is in the child's best interests.

In the recent case of S and P (Discharge of Care Order), Re (Rev1) [2025] EWFC 30 (B) (14 February 2025) HHJ Sharpe helpfully sets out the law in relation to a Discharge of Care Order as follows:

  1. The statutory basis for an application to discharge a care order is set out in s.39, Children Act 1989.  The application may only be brought by a parent with parental responsibility, the child or the Local Authority (s.39(1)).
  2.  The principles to be considered when dealing with an application to discharge where reviewed by the Court of Appeal in TT (Children) EWCA Civ 742and can be summarised as follows:
  3. The welfare of the child is the paramount consideration when determining the application.
  4. The welfare evaluation is undertaken on the basis of the current position, not as matters were at the time when the care order was made, but the facts upon which that order was based are relevant but the weight to be given to those facts in the discharge proceedings will vary according to the evidence in the case at the time of the discharge application. 
  5. The proportionality principle is applicable: 
  6. firstly through s.1(5) (the no order rule) of the Act.
  7. Secondly via a cross-check of necessity and proportionality in terms of the impact of the interference with rights which         the proposed outcome will have.
  8. The applicant must demonstrate that the discharge of the care order would be a positive outcome for the child and so the evidential burden is upon them and not the party resisting the discharge of the care order.

This case highlights a number of important factors when consider a discharge of Care Order application and reinforces the key principles that the applicant must show a materialistic change of circumstances since the Care Order was made, that a Care Order is no longer necessary and proportionate and that it is in the child's best interests considering the welfare checklist.

This case also highlights the difficulties a parent faces in relation to Legal Aid funding for a Discharge of Care Order application. Paragraphs 67-81 sets out the relevant regulations. Practitioners may find this Judgment helpful when faced with an application for Discharge of a Care Order.