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Lies, welfare and the future risk of harm

Jackson LJ has reiterated the basic principles to be applied when determining whether to make care and placement orders and discussed the significance of lies in the context of welfare and the impact of lies when assessing the future risk of harm. Kate Pye-Jones examines the case.

In K (Children: Placement Orders) [2020] EWCA (Civ) 1503 proceedings had been ongoing for a number of years. The local authority (LA) initially issued care proceedings in December 2017 following an alleged non accidental injury to the child, followed by dishonesty and lack of co-operation from the parents.

M then fled the jurisdiction with the child and ultimately, following orders being made for the return of the child and publicity being given to the return order, M was located in USA when giving birth to another child, which she had concealed from LA.

In 2018 the children were returned to the UK and placed into foster care. The parents continued to deceive professionals resulting in the court making a number of findings at two hearings, not only that one of the parents had caused the initial injury to the child but also in respect of their deceit, lack of remorse and remote prospects for positive change. J made care and placement orders, in essence due to the parents’ deceit and irrational and extreme reactions to the involvement of the local authority.

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Jackson LJ allowed the appeal on the basis that the judgment did not adequately identify the harm the children would be likely to suffer if returned to the care of the parents. The matter was remitted for a retrial in respect of the welfare decision only. Jackson LJ warned the parents, however, that ultimately the welfare outcome may be the same.

Jackson LJ confirmed that adoption should only be considered as a last resort (Re B (A child) (Care Proceedings: Threshold Criteria [2013] UKSC 33) and that a rigorous and reasoned evaluation of all realistic options must be carried out before it can be concluded that adoption is necessary and proportionate (Re B-S (Children) [2013] EWCA Civ 1146).

Jackson LJ stated that lies must be strictly assessed for their likely impact on the child. The court must spell out why dishonesty creates a risk of significant harm and what weight should be given to that dishonesty in the welfare evaluation.

Jackson LJ reiterated the questions the court should ask itself when assessing risk of future harm, as set out in Re F (Child) (Placement Order: Proportionality) [2018] [2018] EWCA Civ 2761 :

  1. What is the type of harm that might arise?
  2. What is the likelihood of it arising?
  3. What consequences would there be for the child if it arose?
  4. What steps could be taken to reduce the likelihood of harm arising or to mitigate the effects on the child if it did? The answers are then placed alongside other factors in the welfare equation so that the court can ask itself:
  5. How do the overall welfare advantages and disadvantages of the realistic options compare, one with another?
  6. Ultimately, is adoption necessary and proportionate – are the risks bad enough to justify the remedy?

Kate Pye-Jones is a barrister at Nine St John Street.

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