https://www.bailii.org/ew/cases/EWCA/Civ/2023/59.html
Facts
This case concerned an appeal against a care and placement order made with respect to a child, referred to in the judgment as “H”, who was then aged 22 months. H’s parents both suffered from cognitive difficulties. Additionally, her four siblings, referred to as “D” (then aged 23), “E” (19), “F” (16), and “G” (13), displayed various cognitive impairments.
The local authority had been heavily involved with the family since 2011 when D – then twelve years old – was alleged to have inappropriately touched a five-year-old girl. D was subsequently moved into the local authority’s care. However, continued referrals were made to the local authority’s children’s services in relation to the other children, relating to concerns over the children’s relationship with associates of the family, allegations of aggressive and sexualised behaviour on the part of E and F, and violence allegedly shown by D towards E. By February 2019, the local authority had started care proceedings in respect of D, E, and F. By that stage, E was beyond local authority and parental control and there were concerns that the children were still spending time with D and other adults known to present a risk to the children. Within a month, G was made subject to an interim order and placed in foster care after she made allegations of sexual assault against E and F. E was deemed to be beyond parental control and also made subject of a full care order after he dragged his mother from the bath to the landing and sexually assaulted her.
On 19 March 2021, the mother gave birth to H, the subject of this appeal. Three days later, the local authority issued care proceedings in respect of the baby. On 24 March 2021, at a hearing before a district judge, she was made subject to an interim care order but remained at home with her parents under a working agreement. Despite continuing reports of aggressive behaviour by F, who was still living at home, H was seen as developing well with age-appropriate behaviours and there were no concerns about the mother’s basic childcare. On 13 June 2022, fifteen months after the commencement of care proceedings relating to H, the final hearing took place where the judge made care and placement orders.
Appeal grounds
Six appeal grounds were put forward on behalf of the parents: the judge erred
(1) in the analysis of risk in respect of allegations of sexual harm.
(2) in the conclusion that there had been no change within the family, or in the parenting capacity.
(3) by failing to analyse adequately the level and nature of support the family would be likely to require if caring for H, which led to an erroneous conclusion that this would amount to “substituted parenting”.
(4) in concluding that extensive work had been undertaken with the family and failed to adequately consider what work had in fact been undertaken.
(5) in his analysis of risk to H from her brother F.
(6) in failing to take a proportionate approach to the issues before him, in determining that a placement order was demanded in this case.
Risk of sexual harm (ground 1)
The appellants argued that the judge had gone astray in his analysis of the future risk of harm to H. At the onset of his exposition of the evidence, the judge recited the historical allegations made by G against her siblings, E and F. However, the court did not investigate these allegations and had no proven or admitted factual foundation on which they could base their conclusion that the older brothers posed a sexual risk to H. Therefore, the appellants argued that any conclusion relating to the risk of sexual harm remained a ‘mere possibility’ and failed to consider the fact that F was about to move out of the house and that E was rigorously supervised by professional staff at all times when in contact with his family. Thus, any conclusion establishing that the s.31(2) threshold criteria of the Children’s Act 1989 was satisfied – a prerequisite for deciding if the court could make a care or supervision order – was based on unproven assumptions.
The level of support required – “substituted parenting” (ground 3)
In addition to being a statutory duty under s17(1) of the Children Act, the obligation on the State to provide support such that children can remain with their parents has been recognised as an aspect of the State’s positive obligations under Article 8 ECHR, per Re D (A Child) (No.3) [2016] EWFC 1, [2017] 1 FLR 237.
The appellants submitted that the judge erred in law in accepting evidence from the local authority and the guardians that the extent of the long-term support required would be far in excess of what the local authority could reasonably be expected to provide. Indeed, it is a needs-led process with no blueprint and the judge should have identified precisely the package of support that would need to be provided. The exercise required for this, as carried out by the court in Re B-S (Children) (Adoption: Leave to Oppose) [2013] EWCA Civ 1146 and Re B (A Child) [2013] UKSC 33, was not undertaken.
With this absent, the advantages or disadvantages of the placement options could not have been considered or compared, and it was not fair or possible for the judge to have concluded that other placement options were in H’s interests simply because of his characterisation of the level of intervention required as “not reasonable, sustainable or in H’s welfare’s best interests”.
Mistake as to the work that had been undertaken (ground 4)
The appellants also relied on Peter Jackson LJ in Re F (A Child: Placement Order: Proportionality) [2018] EWCA Civ 2761, when he stated that it was necessary for the lower court, when evaluating the risk of future harm arising to H, to evaluate the steps that could have been taken to reduce the likelihood of the harm arising or to mitigate the effects if it did.
The psychoeducational work that it had been advised both parents should receive in order to understand the nature of any potential sexual risks to the children had not been provided.
Despite professionals submitting to the lower court that this work would have been unlikely to have made any difference, the appellants argued that the learned judge failed to engage with this point, which had been central to the appellants’ case in the lower court.
Proportionality (grounds 6, 2 and 5)
Under these grounds, the appellants submitted that the judge failed to adequately evaluate alternative placement options with the parents. In particular, he failed to consider:
(1) the steps which the local authority could have taken, but has not taken, to protect H from F;
(2) the fact that F, now aged 16, is starting pathway planning to semi-independent and supported living like his brother;
(3) how the fact that the parents will shortly no longer have the burden of caring for the older children will affect their capacity to care for H;
(4) the fact that, unlike her siblings, there is no sign of cognitive impairment in H, who is currently meeting all developmental milestones;
(5) the importance to H of her relationships with her siblings and the impact on her of the loss of those relationships should she be placed for adoption;
(6) the impact on H, a child who has to date suffered no identified harm, of breaking the close attachment she has formed with her parents, particularly her mother, with whom she has lived all her life.
Overall, the appellants submitted that the proportionality exercise conducted by the judge was inadequate and failed to account for all the factors in favour of the child’s placement at home, nor did it adequately assess the perceived disadvantages of that placement.
Discussion
In Baker LJ’s judgment, the appellants’ submissions were cogent and persuasive and the appeal was allowed.
Importantly, the judge noted that s.1(3)(e) of the Children Act and s.1(4)(e) of the Adoption and Children Act 2002 require the court to take into account any harm which the child is at risk of suffering, not is possibly at risk of suffering. Therefore, any considered harm had to be established on the basis of proven fact, not mere possibility. The unproven sexual behaviour and abuse between the older siblings which the judge in the lower court concluded H was ‘at risk of suffering’, and was very heavily relied on when reaching his decision, was an error. Nor had it been permissible for the judge to rely on the parents’ concession of such a possibility of harm existing; this admission would never obviate the need for a proven factual basis to establish a risk of future harm, particularly noting these parents’ disability.
It is unacceptable, Baker LJ asserted, for a local authority to press for a plan of adoption simply because they are unable or unwilling to support the child in living at home.
Baker LJ agreed with the counsel for the appellants that the judge in the lower court had failed to subject the evidence to the degree of rigorous scrutiny required in these circumstances. For example, Baker LJ noted that the lower court judge had recognised that the local authority would have to maintain an (undefined) “high level of support and intervention in the family for many years to come” without taking into account the provision of support that is a recognised requirement for parents with learning disabilities under the Care Act. Taking together all the instances where Baker LJ felt the lower court judge had failed to scrutinise evidence sufficiently, the conclusion reached was that the appeal should be allowed.
Comment:
This case serves to illustrate the strong reluctance of the court to remove children from the family home. The grant of appeal in this case centred on the judges’ understanding that in order to meet the high threshold requirements in Acts, such as the Children Act, for care or supervision orders to be granted, the evidence must be established by concrete proof. Any form of evidence that falls short of this, including concessions made by the parents of that child, will not be sufficient. The welfare and best interests principle, therefore, that dominates all children’s proceedings does not align with misconceived understandings – like that of the lower court judge in this case – that strong potential risks of harm are enough for the state to intervene and remove a child from the family home. This is even the case when the parents suffer from disabilities which have meant that they were unable to prevent their other children from such harm – as was the case in this instance where all the other children were subject to care orders. The adequacy of the statutory threshold for state intervention has often been questioned, but this case goes some way to settling those anxieties.
The court’s emphasis in this extreme case on supporting these disabled parents as well as the Children and on local authorities doing everything possible to ensure the child can stay with their parents even when this would require significant resources invites a reappraisal of society’s perceptions of a ‘good enough’ parent – a view which would most likely have led to disagreement with the court’s decision in this case.
One of the domains in the Care Act is inability to carry out any caring responsibilities that the adult has for a child. Local authorities’ adult services organisations cannot simply say – here, Children’s services do that, because the statutory functions are wholly different and owed to different people. The disabled ADULT with responsibilities for children is entitled to have a needs led package of care which can be turned into a budget.
Meeting needs is the key here: the budget isn’t simply for what’s wanted, so it’s no good if a couple or a single parent’s difficulties are just money for childcare – if what’s really going on is that their standard of living – which may well be beyond their means, is subsidised by way of that payment. The package needs to be related to assisting the person to care for the child, not just to pay for care for the child, full stop. Both parents owe parental responsibilities, so the non-disabled parent can rightly be expected to care, unless there is a good reason to the contrary. It may make a difference whether the person was disabled before they had a child, or became disabled later. There is no case law on what is required to meet need lawfully in this regard.
Children’s social services duties under s17 of the Children Act can extend to providing the parents with services for the child or services to the parent, and one need not be a child at risk to be a child in need; but the overlap between the two functions cries out for a protocol, for joint working, not a turf war between the two. Cases like this will perhaps drive Directors to higher levels of wisdom and co-operation so that there does not have to be further litigation to determine the proper approach.