Judge finds threshold met on facts before the Court despite all parties considering it was not
A High Court judge has found the threshold was crossed for the making of a care order for a 14-year-old girl, despite all parties thinking it was not met.
In West Sussex County Council v K [2022] EWFC 170 (published on Bailii this week) His Honour Judge Thorp considered whether the unique circumstances of the case were sufficient to satisfy either of the limbs of section 31(2) of the Children Act 1989.
He concluded that as a result of the girl’s mother’s incapacity (and, hence, her inability to provide the care which it would be reasonable to expect a parent to give), the girl would be likely to suffer “significant harm in the future” if a care order were not made.
The case concerned the welfare of a girl, K, who is 14 years of age. Since 23 February 2022, she had been living in a foster placement subject to an interim care order made by the Court.
Outlining the background to the case, the judge noted that K’s father died when she was two. Throughout the whole of her life, she was cared for by her mother.
The judge added that there was nothing in the documentation to suggest that the mother’s parenting was poor, or that K suffered from harm in the mother’s care. Additionally, no party suggested that there was anything in the history which would or could cross the threshold for making public law orders.
In November 2021, the mother suffered a sudden and catastrophic brain haemorrhage. She has been left with minimal abilities; she requires 24/7 care; she has very limited cognition and understanding; and she lacks capacity to litigate or make any decisions about her own welfare.
The judge outlined that it is agreed that she lacks capacity and is not able to make any decisions about her child’s welfare, and “cannot exercise any parental responsibility for her on a practical basis”.
In the circumstances, all decision‑making is made by others and K’s mother has no input into it. Further, it is agreed that she does not have capacity to provide agreement under section 20 for K to stay in local authority accommodation.
In the early stages after the events of November 2021, the wider family stepped into the breach and helped K. She was looked after by them for a number of months. However, they were not able to continue to care for her and gave notice to the local authority of this - which triggered the issue of proceedings in the case, Judge Thorp stated.
The judge noted that all of the parties agreed that K should continue to live in foster care. They also agreed that in this case a section 20 placement would “not be appropriate or support her adequately”.
The parties were agreed that if it were possible, the best order for K would be by way of a care order, and that that would meet her welfare interests. This, the Judge noted is the “paramount factor” which the Court must take into account.
However, earlier in proceedings, the parties raised an issue as to whether the Court could find that threshold was met in this case.
His Honour Judge Thorp said: “The position of the parties taken today was as it was at previous hearings; that is, that they do not consider that threshold is met on the facts before the Court. In accordance with that position, the Local Authority has advanced an alternative case; that is, that the Court should make K a Ward of Court, and there was a formal application from the Local Authority to that effect”.
The judge noted that the essential question which the Court had to answer was whether “in circumstances where the mother has suddenly lost her capacity to care and is not able to provide any care for her child or make any decisions for her, is that sufficient to satisfy either of the limbs of section 31(2) of the Children Act 1989”.
Section 31 of the Children Act provides as follows:
“(1) On the application of any local authority or authorised person, the Court may make an order-
a) placing the child with respect to whom the application is made in the care of a designated local authority; or
b) putting him under the supervision of a designated local authority.
(2) A court may only make a care order or supervision order if it is satisfied-
a) that the child concerned is suffering, or is likely to suffer, significant harm; and
b) that the harm, or likelihood of harm, is attributable to-
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
(ii) the child’s being beyond parental control”…..
The judge noted that all parties agree that the requirement in subsection (2)(a) applies to both limbs under subsection (2)(b). Adding: “All parties agree that there are different considerations which apply to each of the limbs (that is (2)(b)(i) and (ii)), and I have heard submissions separately on those issues. Most of the discussion before the Court has been in relation to the first limb, and I will turn to that matter now”.
Discussing the ‘First limb’ - Section 31(2)(i), the judge stressed that he was treating the mother as “a parent who is completely blameless in this case”, noting that it was not alleged that, at the time or immediately before the mother’s unfortunate injury, K was or had suffered harm.
The parties made a number of points in their submissions that threshold should not be found to be crossed, outlined by the judge below:
Ms P Troy, who appeared on behalf of the applicant local authority relied on the case of Re J (Children) [2013] UKSC 9, in which the Supreme Court dealt with the issue of proof in relation to the risk of future harm. Ms Troy submitted that the effect of the judgment of Baroness Hale in that case when applied to the present case was as follows:
“In order to make a finding of significant harm for the future, it is submitted that the Court has to be able to establish that the likelihood of significant harm is attributable to a deficit in the parenting of the mother, as evidence by a past parenting failure. There does not appear to be any evidential basis upon which such a finding could be made”.
Thus, she said, the Court cannot make a finding of the future risk of significant harm if there has been no such harm in the past, or there has been no past parenting behaviour identified. She added to that that any such proposition was “factually hypothetical and in reality not even possible let alone likely”.
The judge noted this submission to be the “most substantial point made on behalf of the Local Authority”.
The second submission made by the local authority was that there was a “very similar set of facts before the court in the case of LCC v AB & Ors [2018] EWHC 1960 (Fam)”, and that the Court should apply that case accordingly;
Thirdly, the council submitted that if the Court were to make a finding that threshold was crossed, that would in some way “infer blame being placed upon the mother for putting her child at the risk of future harm”. Further, that that would not be appropriate in particular in circumstances where the mother is a protected party.
Fourthly (and linked to the third point), it was submitted that the purpose of section 31 was to safeguard against unfair state intervention imposed upon the private family life of the mother and child. Further, that if the Court made an order on the basis of threshold then it would be “impugning the mother’s parenting by an adverse finding against her in circumstances arising out of her unforeseen illness...”, and that that was “an infringement upon the article 8 rights of this family, and is both disproportionate and unnecessary”.
Ms Hancock (acting on behalf of the Official Solicitor for the mother) supported the submissions made by the local authority on all points.
However, the judge noted that Ms Hancock emphasised the last two of those and “cautioned against a decision of the Court which might involve the crossing of threshold and intervention of the state whenever a party has a significant illness which rendered them incapable of caring for a child”.
She submitted on behalf of the Official Solicitor that that would be a “dangerous route for the Court to go down, and that that is not what the threshold criteria are for”.
Discussing the argument in relation to Re J, as referenced in the first submission by the local authority, the judge said he did not accept that the effect of Re J was that a Court “cannot find that there is a future risk of harm if there is no history of past risk or parenting failure”. He noted that as had been agreed by the parties in submissions, “Re J was a case on particular facts and was sent to the Supreme Court to resolve a particular issue”.
Concluding the discussion of the relevance of Re J, the judge said: “In the present context, the only relevance of Re J is that the Court must have sufficient evidence on which to base a finding of future risk”.
He continued: “In the present case, in which it is quite clear from the evidence that the mother is not able to provide any care, never mind adequate care, it is in my judgment self‑evident. I will return to this issue when dealing with the “blame” point and the Article 8 point”.
Considering the argument of ‘blame’ upon the mother being inferred if the threshold was found to be crossed, the judge noted: “In my judgment, in the present case, it is neither necessary nor appropriate to deal with the case with any reference to blame”.
He concluded: “Family practitioners are well used to the fact that in the family courts, we often see parents who are not blameworthy. The fact that they are not able to provide safe and adequate care may be for a variety of reasons but should not of itself reflect blame on their part. Rather, s31 recognises that in some cases where the children’s needs are not going to be met by a parent, then the state may need to intervene to ensure that those needs are met”.
He also concluded that the making of a finding that threshold is crossed will not imply that it will be “too easy” for the state to intervene, or that this would somehow risk “opening the floodgates”, and render vulnerable to state intervention any parent who becomes incapacious.
He added: “I recognise that the courts in a number of cases, albeit in different contexts, have emphasised that there should be a high bar for state intervention. That caution goes right back to cases such as Birmingham City Council v D and M [1994] 2 FLR 502, a decision of Mr Justice Thorpe, as he then was”.
However, he noted that he also has to take into account that the fact that threshold might be crossed for the purposes of orders being made “does not provide a justification in every case that the Local Authority should or will intervene, or that the Court should or will intervene”.
He concluded: “in a situation where the parent cannot provide any safe care for a child, where the parent cannot exercise any parental responsibility on a practical level, where no alternative family carers are available, and where parties are agreed that a child requires accommodating because of the parent’s inability to provide care, then in my judgment it is wholly proper for section 31 of the Children Act to be brought into play.
“Indeed, in my judgment that is precisely what it is there for: to protect children who are at risk of significant harm due to the inability of a parent - whether (in some cases) due to their fault, or (in other cases) due to no fault of their own”.
Considering the final question: ‘Is threshold crossed’, the judge noted that in the circumstances, the threshold is crossed (whether the threshold date is shortly after the mother had her haemorrhage or whether it is in February 2022).
The judge said: “The fact of the matter is that if there was no intervention and an order was not made, this is a child who would not have the care from a parent which it would be reasonable to expect a parent to give. The reason for that is that the mother just cannot provide it, through no fault of her own”.
It was noted by the judge that all of the parties agreed that it was in K’s welfare interests for a care order to be made. Adding that he had “no doubt at all that in the circumstances, that is something which is in her welfare interests”.
His Honour Judge Thorp made a care order, concluding that “Unfortunately, for various reasons, [K’s] family are not able to provide the support that she needs, and she needs the intervention of the Local Authority”.
“The best place for her, as agreed by everyone, is in a foster placement. In my judgment, it is vital that the Local Authority share parental responsibility so that there is in fact someone who is able to exercise parental responsibility, and so that K can be looked after appropriately”.
Lottie Winson
