Three years ago, eyebrows were raised when Mr Justice Mostyn stated in the case of GM v Carmarthenshire County Council & Anor [2018] EWFC 36 that use of attachment theory by a social worker was not ‘expert’ evidence and that he didn’t need a social worker to give him evidence about the theory in order to make his own evaluation of a child’s attachments.

The Carmarthenshire hearing was about discharging a care order relating to an eight-year-old boy, that had been made two years earlier. Applications to discharge care orders are made under section 39 of the Children Act 1989. Basically, the child, a parent, or the local authority may apply and will have to show the court that the risk of harm has lessened to the extent that the care order is no longer necessary. Back in 1994, it was said that the court has to have regard to the section 1(3) welfare checklist in considering any harm which the child has suffered, or is at risk of suffering, and will normally focus on recent harm and an appraisal of current risk; conclusions reached at earlier hearings will be of marginal relevance and historical interest only, but earlier conclusions may be examined afresh in the light of new evidence (Wall J in Re MD and TD (Minors) (No 2) [1994] Fam Law 489).  

The point is, that a section 31 care order can only be made if the ‘threshold’ of risk of harm is reached, but there is no wording about risk of harm in section 39. However, the early cases settled that the court would look at the child’s welfare at the date of the new application and hearing to decide if a discharge order should be made.

However, Mostyn J took a new approach in 2018, concluding that ‘something close to’ the section 31 ‘statutory threshold requirement’ still applied, placing an obligation on the LA to show ‘exceptional’ circumstances, and that normally a section 39 application should be granted.  

Now, in a new case about a different family, TT (Children) [2021] EWCA Civ 742, the Court of Appeal has clearly stated that Mostyn J was wrong on section 39, that his ‘statements are not correct and should not be followed’ and that ‘care orders exist in a wide range of circumstances and the approach to applications to discharge must be broad and flexible. The implication that there is a presumption in favour of discharge in anything other than exceptional circumstances is not right’ [para 41].

Peter Jackson LJ confirmed the section 39 test as it stood before Mostyn J’s reinterpretation, simply that the applicant must prove that a section 39 order ending the care order is in the child’s welfare.   

On attachment theory, the Court of Appeal now says:

The issue of attachment theory does not directly feature in this appeal, but I refer to it because it was addressed in GM v Carmarthenshire. It is one thing to find that a particular witness may not be qualified to give specific evidence about a child’s attachments, but it is another thing to question the validity of attachment theory as a whole or to state that it cannot be admissible in evidence. Nor is it correct to say that, if a child’s attachment to substitute carers is so strong as to lead a court to refuse an application to discharge a care order, that would deprive s. 39 of meaning. That approach risks looking at matters from the point of view of the parent at the expense of a rounded assessment of the welfare of the child. The decisions to which I have referred in the two preceding paragraphs make clear that the court has to give appropriate weight to all the relationships that are important to a child, and that there may be a role for expert advice about attachment in cases of difficulty. Insofar as the observations in GM v Carmarthenshire suggest otherwise, they cannot stand [para 49].

This recent article by more than 60 international academics, ‘Attachment goes to court: child protection and custody issues’ helpfully spells out the use and limitations of attachment theory.

ADDED 2 JUNE 2021: There is a very helpful guide for social workers to the case in Community Care dated 28 May.

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