The Court of Appeal has provided some useful guidance on what might or might not constitute “failure to protect” when a child had been injured by another, writes Sarah Fahy.
In L-W Children  EWCA Civ 159 the Court of Appeal was concerned with L aged 4 years who had suffered serious non-accidental bruising.
Four adults were in the potential pool of perpetrators including M, mother’s partner GL; F and father’s partner LP, who were in the pool because L had staying contact with them shortly before M discovered the bruising and because L alleged that it was LP who had hurt her.
The local authority alleged M failed to protect L.
The judge at 1st instance found that GL had caused the injuries to L when caring alone for L and her siblings whilst M was absent from the house at work.
She also found that M had failed to protect because she ought to have known GL was likely to inflict this significant harm. Matters relied upon for that finding were:-
A. M failed to ask GL what had happened while she was at work.
B. M had failed to listen to her own mother (with whom M had a fraught relationship) telling her that L was frightened of GL.
C. She continued to live with GL after the injuries were confirmed to be NAI.
D. She had remained in a relationship with GL:-
- who she knew to be short tempered and had been violent in adult situations.
- after a recent incident when GL lost his temper having been falsely accused of causing a mark to L which was in fact eczema
HELD on Appeal
- The LA must prove a causative link between the facts relied upon and the risk alleged AND
- Later events are only relevant if they show what the position was at the relevant time. Re J  EWCA Civ 222.
- M failing to ask GL what had happened whilst she had been at work and not listening to her mother saying L was frightened of GL was insufficient in the context of L alleging that LP had caused her injuries and the police actively investigating LP.
- GL’s loss of temper on one occasion with M and his violence in adult situations was insufficient to alert M that he had the propensity to cause serious injuries to a child.
- It cannot be said that any woman who fails to separate from a partner who has been violent in adult situations outside the home is failing to protect.
- Failure to protect comes in innumerable guises eg
- M covering up for a partner who has abused a child;
- M who has failed to seek medical help for a child in order to protect her partner
- Where continuing to live with a person is having a serious deleterious effect on a child such as frequent domestic abuse situations
- Courts should be alert to the danger of such a serious finding becoming a “bolt on” to the central issue of perpetration.
AND in G-L-T Children  EWCA Civ 717 where four children were subject to care proceedings. The youngest, J, was aged 2 years and suffered from a number of genuine medical problems due to prematurity.
The Judge's conclusion at 1st instance that M had fabricated symptoms of medical issues, was unchallenged.
However the finding that F had failed to protect because of a failure to inform medical professionals of certain information was appealed.
HELD Allowing the appeal
- A failure to protect is a threshold finding and therefore must satisfy the threshold criteria independently of findings made regarding the conduct of the perpetrating parent.
- The finding in this case was a “bolt on” to the substantive findings against M.
- Courts and LAs should approach allegations of “failure to protect” with assiduous care and keep to the forefront of their collective minds that this is a threshold finding that may have important consequences for subsequent assessments and decisions.
Sarah Fahy is a barrister at St Ives Chambers.