Failure to protect

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 [2019] 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:-

1. 1. who she knew to be short tempered and had been violent in adult situations.
   2. 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

1. The LA must prove a causative link between the facts relied upon and the risk alleged AND
2. Later events are only relevant if they show what the position was at the relevant time. Re J [2015] EWCA Civ 222.
3. 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.
4. 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.
5. 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.
6. 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

7. 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 [2019] 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

1. 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.
2. The finding in this case was a “bolt on” to the substantive findings against M.
3. 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.