This is Mostyn J’s decision (see the two Untimely Ripped posts, and most of the press since Sunday if you don’t know the background)
I think the note from Mostyn J is important to read
This is Mostyn J’s decision (see the two Untimely Ripped posts, and most of the press since Sunday if you don’t know the background)
I think the note from Mostyn J is important to read
One of my regular readers, Boxerdog, asked me to have a look at the CAFCASS commissioned research into the work of Guardians in care cases – it has been a bit of a week, and ordinarily this would have been much higher up my agenda.
Anyway, the report is here :-
The report sets out to answer two questions
1. What work was undertaken by Guardians?
2. When in the proceedings did that work take place?
So the fact that the research isn’t particularly helpful is the fault of the persons framing those parameters and questions, rather than flaws with the research itself. I don’t think many people’s big unanswered questions with CAFCASS were these, but more about were they a genuine check and balance to the State, were they genuinely representing the voice of the child and looking at things in the round rather than the focus on “safeguarding” which seems to have crept in, was their work considered helpful and useful by other (shuddering at the word) stakeholders in the process – the children, the parents, the Judges?
But anyway, those are the questions we got. The answer to the second is “Mostly at the beginning” and in the first three months, chiefly. Of course, most of the really important stuff in care proceedings is happening at the end, as assessments are completed, decisions are being made and the views of children about the range of options for their future is being gathered, so some might think that the balance here is a bit askew. As a counterpoint to that, the meeting of the parents and relatives, reading the court papers, deciding on an expert and questions, and reading the social work files (ha!) all happens at the beginning, so I am perhaps being slightly unfair. It depends whether the ‘front-loading’ means “More at the front, but quite a bit all the way through” or “almost all at the front and very little thereafter”
The report shows that CAFCASS met with the parents in 90% of care cases (giving the benefit of the doubt, there ARE SOME parents who don’t involve themselves in any point in the proceedings, think 10% is rather high estimate of that) and met with/observed the children in 95% of care cases
It appears so. The MoJ have published a consultation on Court fees. Long time readers of this blog will know my rather low opinion of consultations (they are a way of breaking bad news to people whilst pretending that “your view can make a difference”)
And any consultation on Court fees normally means one thing – they’re going up, stand still whilst the MoJ mugs you. It is so tiresome for the MOJ if you wriggle about whilst they go through your pockets and wallet.
This one, it appears not
Please send your response by 21/01/14 to:
Graeme Cummings Ministry of Justice Law and Access to Justice Group Post Point 4.38 102 Petty France London SW1H 9AJ
Tel: (020) 3334 4938
Fax: (020) 3334 2233
[Might actually be worth doing that, this time]
Here are some good news items from it (good news, from an MoJ consultation on fee changes, you can see why I am baffled)
Removing the fee from Non-molestation or Occupation order applications (currently £75). Given what a palaver getting the fee-exemption was, many people ended up just paying the fee, and it always seemed wrong to me that people should have to pay a fee to get protection from domestic violence.
The fee for any application in Children Act cases (other than s31) is now just £215, same across the board. No more looking up in a chart to try to work out just what the bloody fee is for those applications that you hardly ever make. It’s just a standard fee across the board. That’s gone up a bit (£35) for most of the applications.
And here’s the odd one – you may recall that the fee for issuing care proceedings went up several thousand per cent – from about £175 to over £5,000, and went up again in April.
The lie / spin at the time was that this was completely cost-neutral and would be covered by central government funding and that it was not an attempt to artificially depress care proceedings or provide a financial incentive for Local Authorities not to place cases before the Court. You may recall a judicial review that didn’t succeed, and then all the various reports saying “these fees should be abolished”. If the fees ever were cost-neutral, which almost anyone in local government would dispute, they certainly aren’t now, as central funding has been salami sliced over many years. Those court fees represent a significant drain on public authorities limited resources.
The current arrangement is that the LA pay the court a fee of £3,320 up front, and then a further fee of £2,155 if there’s a final hearing.
Well, I immediately look for that section, to see how much care proceeding court fees are going to go up by, and see the proposals are :-
Flat fee on issue to change from £3,320 to £2,000 (yes, that’s actually gone DOWN)
Fee for final hearing to change from £2,155 to £0 (yes, that’s actually nothing)
This is something of a climb-down – I mean, it’s not the recommendation of the Laming report, the Plowden report or the Family Justice Review (all of which the Government said in advance they would implement in full) that the fees be scrapped entirely, but it’s a START.
I couldn’t find anything within the consultation document that was a rationale for this reduction, so I went to the public attitude survey here
in which people were surveyed about court fees and given some hypothetical examples to set fees for. (There are some interesting things, more useful for private law, about public attitudes towards fairness of the court system)
[I did this exercise because if I see a gift horse, the first thing I DO is look in its mouth. It is nonsensical advice to say “Don’t look a gift horse in the mouth” - the story comes from the Trojan War, and OF COURSE the Trojans should have been wary about the gift horse…]
Anyway, there’s nothing in that either. In any event, thank you MoJ for a consultation document that made me happy rather than miserable. Let’s see if it translates into action.
(That’s potentially a lot of money that can be spent on services to help and support troubled families, so it is not just good news for Local Authorities, but for real people too)
You might remember some time back that there was a consultation on a proposal to reduce expert fees further from the drastic cuts brought into play in October 2011 (I say consultation, what I mean of course is, breaking the news to experts that this was definitely going to happen and giving them a few months notice whilst pretending that no decisions had yet been made)
As ever with a Government agency, finding the document that actually publishes the new rates is a forensic ferreting exercise all of its own, but this is it, below
These rates now come in to all cases with a start date after December 2013 (so it is worth knowing that an expert who is INSTRUCTED in January 2014, might get paid at the old rates if the CASE itself started before December 2013. If you’re an expert, that might well be a question worth asking)
Picking out the ones most common in care proceedings (these are non-London rates, some of the London ones are slightly different)
[When I say 2011 rate, that was the rate from Oct 2011 until April 2013, when there was an interim cut]
Child psychiatrist now £108 per hour [the rate in 2011 was £135]
Child psychologist £100.80 per hour [the rate in 2011 was £126]
DNA testing £252 for the sample and testing, £72 for the report [2011 was £315 and £90]
Interpreter £28 per hour [2011 was £32]
Neurologist £122.40 per hour [2011 was £153]
Paediatrician £108 per hour [2011 was £135]
Psychiatrist £108 per hour [2011 was £135]
Psychologist £93.60 per hour [2011 was £117]
Risk assessment expert £50.40 per hour [2011 was £63]
If you imagine a ballpark of the costs having been cut by 33% in two years (having already been cut down extensively in the 2011 changes) you’d be about right.
The new guidance is silent on social work costs, which have historically been at £30 per hour. Let’s take that to mean that ISWs can still be paid at £30 an hour, which is good news, because applying the 33% cut given to other experts would mean ISWs working at £20 an hour, and there really would be none left at that rate.
Firstly thank you to all the contributors to the debate on the first post, I think this case undoubtedly stirs up not only emotions but some genuinely important issues. No doubt once we get the Court of Protection judgment (which is the really important one) more issues will be stirred up.
I have to point you all towards Pink Tapes very thoughtful and considered analysis of the case
which makes the very important point that the Press are conflating two separate decisions and applications
1. The Health authority’s application for a determination about capacity and surgery to the Court of Protection, which would have been about health issues
2. The Local Authority’s application for removal of the child on an interim basis, which would have been about risk (and appears from the reporting to have taken place in mother’s absence and whilst she was not conscious)
It is the conflation of those two separate decisions and applications into one that suggests that the C-section happened to make it easy for social workers to remove the child that raises the temperature so much. There are still very interesting and important issues in the case, however, and still a legitimate public debate to be had about whether this is right or not.
It occurred to me that I could imagine all sorts of scenarios where this choice was a genuine life-or-death one for both limbs (it would be wrong for me to speculate about those, but it doesn’t involve much of a stretch to concieve of a situation where it appeared that the only way to save A baby’s life was to take this incredibly harsh action). Now, we don’t know whether that was the case here or not, and await the judgments to give us an informed view.
[So from here on out, I am not talking about THIS particular case, I am talking about a hypothetical case, where the Court is satisfied that there is a genuine life-or-death choice to be made, where the issue is either to save the child OR to intervene in the starkest and harshest way - the Court is of course bound by Art 2, so would have no choice BUT to act, if the choice were that stark]
Hypothetically, IF the evidence was that this action was the only thing that could have saved the child’s life and the risks there were ones that no Local Authority could sensibly ignore, one still has to consider whether the State (which in my view effectively ‘borrows’ its powers with the consensus of the people) ought to have those sorts of powers, even after a legal process with safeguards and the highest tests before such powers can be used.
I think that there is a very legitimate question, along the lines of Ben Franklin’s famous aphorism “Those who would trade in their freedom for their protection deserve neither”
If we as a society, and as a free press take the view that even in a life or death situation, an outcome like this is abhorrent and wrong (and I think I am probably leaning towards that myself, in terms of ‘are these powers that the State should have’ as opposed to ‘those powers existing, was it right to make use of them?’ but I reserve my final position) then in coming to that judgment, we have to accept the consequences of it, which will be that we must be willing to accept that it might be better for the baby faced with this hypothetical situation to die than to use very draconian powers to secure its safety.
That’s a big question put in those terms. I have immediately thought of three conflicting positions in relation to that :-
(a) in a life or death situation, pretty much anything goes to save the baby, although the burden to demonstrate that this really is life or death is high
(b) Even in a life or death situation, the State shouldn’t have such powers and it is wrong to exercise them
(c) I would be absolutely opposed to such powers being used in anything short of life or death, and I still feel pretty uncomfortable about the powers existing, because of the draconian nature of them, the fact that the decision is being made in haste and what appears ‘life and death’ might not be in the cold light of day
[I think that in the hypothetical situation, I am probably C, but I MIGHT be B]
I do feel uncomfortable that a removal hearing takes place whilst mother was unconscious, if the reporting is accurate, and I would want evidence of a very high level that there was really nothing that could be done to safeguard the child whilst a hearing took place with mother being present.
I have little doubt, that IF we had a hypothetical situation like this, and the risks were genuine life or death and this draconian action was the only way to save the baby, and the LA HAD NOT acted, there would be equal criticism and vitriol from the Press about bungling social workers who let a baby die even though they knew how big the risks were – “what were they thinking?”. Does anyone honestly think that we wouldn’t have been seeing “heads must roll” headlines and speeches in Parliament?
So whilst this case is based on a particular set of circumstances which may never ever crop up again, it does raise an issue of wider importance – are we as a society willing to accept that if the system is rebalanced so that we have a higher tolerance of risk to allow more children to stay with their families, are we at the same time willing to accept the less palatable consequences of that?
I thought that this was a really excellent piece in Community Care and wanted to share it with my readers (there’s probably some overlap between people who read this and read Community Care, but not total overlap)
It is something that we try not to think about, but the potential is there with every phone call, every email, every decision you make, the question you ask or forget to ask.
I know that some of my readers think that all social workers are heartless nazi-fascists - too certain, coy and hard to please, who need to be lined up and shot come the Revolution *, and I don’t expect to ever change their mind. We will continue to Agree to Disagree.
Nor do I happen to think that social workers are all harp-playing bewinged ministering angels who descend when fear and anguish wring the brow.
Like any profession, there are good ones and bad ones (teachers, doctors, lawyers, pop stars). Everyone will have and is entitled to have their own view on what proportion of good and bad makes up the profession.
It happens to be a profession where a bad one can cause a lot of misery, but it is also a profession where those within it have to carry a lot of fear and disquiet about making wrong decisions (either way – the Always/Never myth is, as I and others have discussed, a myth. http://suesspiciousminds.com/2013/09/29/alwaysnever/
Nobody can get every decision right, every time).
If we as a society constantly ramp up the pressure and consequences of getting a decision wrong in only one direction (always) we do run the risk of getting too many wrong the other, less criticised way (never)
*I’m reminded of the phone call I used to get at 9.15am every Monday without fail in an early job, from a man who would tell me that “come the Revolution, you and people like you will be first up against the wall and shot… no offence to you mate”
The Supreme Court considered this issue in Zoumbas v Secretary of State for the Home Department 2013, handing down judgment this week.
although it chiefly deals with a judicial review of the Home Office decision that the children could be deported along with their parents to the Republic of Congo, it has some relevance for those advising Local Authorities or parents in care proceedings.
It has become less uncommon to be dealing in care proceedings with parents who are apprehensive at the words “Home Office” and often what one is trying to predict is whether the child would be able to remain in the UK once the Home Office have processed the case.
As relatively few family lawyers are also specialists in immigration law (there’s a limit to how many grey hairs any one human can have at one time), that second-guessing process of the intricacies and innate peculiarity / perverseness of Home Office decision-making is not a very scientific process.
I’m afraid that this case does not give a definitive answer – in fact, the Supreme Court were very plain that it was not permissible to have a “hard-edged or bright line rule to be applied to the generality of cases” when considering proportionality under article 8.
What the Supreme Court do say is that
“in our view, it is not likely that a court would reach in the context of an immigration decision what Lord Wilson described in H(H) (at para 172) as the “firm if bleak” conclusion in that case, which separated young children from their parents.”
And that whilst the children’s welfare is not PARAMOUNT, it is a primary factor and no other individual factor outweighs the children’s welfare (so the Home Office would need to stack against it a number of other factors to outweigh a decision which was contrary to the children’s welfare)
So, the Home Office is to consider the case, and it will decide either that everyone stays or everyone goes. [This of course raises curious dilemmas of what happens if say a man comes to England from the Congo, and remains here unlawfully, and marries a woman who has come to England from Angola, and remains here unlawfully; and they then have children together. Where do the children get deported TO?]
Here are the key principles in that consideration :-
(1) The best interests of a child are an integral part of the proportionality assessment under article 8 ECHR;
(2) In making that assessment, the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child’s best interests do not of themselves have the status of the paramount consideration;
(3) Although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant;
(4) While different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child might be undervalued when other important considerations were in play;
(5) It is important to have a clear idea of a child’s circumstances and of what is in a child’s best interests before one asks oneself whether those interests are outweighed by the force of other considerations;
(6) To that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an article 8 assessment; and
(7) A child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent.
One can see, I hope, that predicting what the Home Office decision will be becomes tricky. The best one can do is guess that the more troubled the country of origin, the less likely a decision to send children to it might be, and that the longer and more settled the children have been in the UK the greater the argument that it is in their best interests to remain in the UK.
If you are interested, the Supreme Court upheld the original decision of the Home Office, and refused the application for judicial review by the parents.
24. There is no irrationality in the conclusion that it was in the children’s best interests to go with their parents to the Republic of Congo. No doubt it would have been possible to have stated that, other things being equal, it was in the best interests of the children that they and their parents stayed in the United Kingdom so that they could obtain such benefits as health care and education which the decision-maker recognised might be of a higher standard than would be available in the Congo. But other things were not equal. They were not British citizens. They had no right to future education and health care in this country. They were part of a close-knit family with highly educated parents and were of an age when their emotional needs could only be fully met within the immediate family unit. Such integration as had occurred into United Kingdom society would have been predominantly in the context of that family unit. Most significantly, the decision-maker concluded that they could be removed to the Republic of Congo in the care of their parents without serious detriment to their well-being. We agree with Lady Dorrian’s succinct summary of the position in para 18 of the Inner House’s opinion.
Finally, we see no substance in the criticism that the assessment of the children’s best interests was flawed because it assumed that their parents would be removed to the Republic of Congo. It must be recalled that the decision-maker began by stating the conclusion and then set out the reasoning. It was legitimate for the decision-maker to ask herself first whether it would have been proportionate to remove the parents if they had no children and then, in considering the best interests of the children in the proportionality exercise, ask whether their well-being altered that provisional balance. When one has regard to the age of the children, the nature and extent of their integration into United Kingdom society, the close family unit in which they lived and their Congolese citizenship, the matters on which Mr Lindsay relied did not create such a strong case for the children that their interest in remaining in the United Kingdom could have outweighed the considerations on which the decision-maker relied in striking the balance in the proportionality exercise (paras 17 and 18 above). The assessment of the children’s best interests must be read in the context of the decision letter as a whole.
If one were of course armed with a Guardian’s report and leave to disclose that, and a judgment and leave to disclose that, both setting out how settled and happy the children are in the UK, and the likely detrimental impact of moving them back to the Congo or wherever applicable, that couldn’t hurt…
Not binding on the Home Office of course, but it really couldn’t hurt.
This is the private law case of Re C (A child) 2013, and frankly, the Court of Appeal missed a trick in not naming it Re (WTF?) 2013 (which also makes me pang for a Court of Appeal authority involving a child named E, where wind plays a major feature, so they can call it RE-E-Wind – when the crowd say Bo, Selecta)
The case involves a five year old boy, C, who became the subject of residence and contact applications, his parents having separated.
The case peculiarly seems to have proceeded on the basis that allegations made about father had been proven by the Court, when in fact they had not yet been tested. That failing, which is bad in itself, increases when one realises that the main source of the allegations of risk was not one of the parties, but the CAFCASS officer who had been appointed to be the independent eyes and ears of the Court.
In fact, by the time the case got to a substantive hearing, the CAFCASS officer was refusing to visit the father at home, refusing to meet with him in the officer unless there was another worker present, was unable to complete the section 7 report and had become the complainant in criminal proceedings about father’s behaviour towards her.
The opinions that were being expressed by the Cafcass practitioner were not just in her role as a family court adviser independent of the parties. She was also a complainant in criminal proceedings. This court has come to the very firm conclusion that it was wholly inappropriate for the family court advisor to continue to act as the court’s advisor and the child’s ‘effective access to justice’ at a time when she was the complainant in criminal proceedings against the father. It was submitted to us that it is a regrettable fact that Cafcass practitioners are placed in positions of real conflict by complaints and threats made against them and that their priority must be to try and put that to one side and undertake their duties on behalf of children. We acknowledge that and the extraordinary work that they do in the public interest but there is a dividing line in terms of due process and conflict of interest that was crossed in this case. A criminal complainant cannot advise in a family case where the person accused by that complainant is a party.
(I’d suggest that one doesn’t need Basil Rathbone, Robert Downey Junior or Benedict Cumberbatch to help one in reaching that conclusion. How on earth can a CAFCASS officer be independent at that point? That doesn’t mean that the Court have found that the CAFCASS officer was wrong or right in her complaints, just that by that point, she could no longer be assisting the Court in making recommendations about the child’s future – whatever was happening between her and the father had contaminated the independent nature of the role which is so integral to it)
However, she did continue, and prepared a report which understandably was not very favourable to father and considered that he presented an unmanageable level of risk.
“father’s lack of understanding of the impact of his offences on his child in relation to his risk taking behaviours, domestic violence, risk of possible child abduction; the father’s mental health and related issues, public disorder and so on.”
Okay, you are probably thinking by now that this case was something of a car crash – there are allegations being reported as though they were facts, the independent CAFCASS officer being the complainant in criminal proceedings about father and lurid comparisons of the father to Raoul Moat being made without much evidence.
Stay with me, it is about to get worse.
The Court of Appeal note that both parents were litigants in person, and though they were doing their best with the thorny process, were not able properly to highlight to the Court exactly how messed up things had become. The Court of Appeal describe the judicial handling of the case as ‘fire-fighting – it may even have been quality fire-fighting, but it was not Case Management’
So, we have a car-wreck with the CAFCASS officer, both parents are in person – looking back earlier the only statement from mum dealing with the allegations against dad was not actually evidence (it had no statement of truth) and the Judges who looked at the case were doing their best, but hadn’t really gripped it.
It still gets worse
On the morning of 6 March 2013, that is immediately before the contested hearing began, the family court advisor filed and served a 22 page document entitled ‘Chronology of Significant Events’. The court had not given a direction to permit such a step and so far as can be ascertained there was no advance notice of the same. The document was a detailed schedule of hearsay evidence that might have been appropriate if it had been directed by a court as a lawyer’s forensic summary of the allegations and materials that had already been filed. It was not a summary of the evidence filed unless it could be argued to be a record of the source materials for the section 7 report that was filed three months earlier. It should not have been admitted without argument and it was clearly highly prejudicial and of questionable probative value. It became the primary evidential document in the case, replacing the mother and almost everyone else who might have had something to say on a question of fact. The document was made available to father on the morning of the contested hearing that gives rise to this appeal.
So in the context of all I’ve previously said, the CAFCASS officer then turned up on the day of the hearing, against litigants in person, and ambushed them with a 22 page document, full of stuff that wasn’t actually evidence.
Does it surprise you that I am about to say – it still gets worse
So father wasn’t given his adjourment, to deal with the ambush that he’d been hit with. And the Court didn’t properly appreciate that the allegations being thrown at him were untested allegations rather than determined facts.
What do you think? Does the next bit make it better or worse? Place your bets ladies and gentlemen.
Oh God… and just when you think that I must be finished, and things could not possibly have got any worse
To add to the air of unreality the family court advisor gave her oral evidence from behind a screen. Special measures in a family court are not fixed by primary or secondary legislation as they are in the Crown Court. They can however be used in a similar way and for similar reasons. They are a means of facilitating the evidence of someone who is vulnerable so that the quality of their evidence is not damaged by their vulnerability. Children who give evidence often do so with the assistance of special measures such as a video link. It is not inconceivable that a professional witness might need the same facility but it is much less likely: Re W (Care Proceedings: Witness Anonymity)  EWCA Civ 1626,  1 FLR 329 at . The mischief in this case is compounded by the fact that the family court advisor gave her evidence as an officer of the state behind a screen rendering her effectively anonymous and unseen and she was afforded that facility without due process. If it was said that such measures were necessary that should have been on application to the court on notice to the father and to the mother and full reasons should have been given. There was no such application and if there was neither this court nor the father were aware of it and there is no record of any determination. There is no order. It should not have happened in the way that it did.
Scroll back, read that again – the CAFCASS officer gave her evidence from behind a screen.
Re WTF 2013
Needless to say, the father won his appeal against the order – he was fortunate that he realised, or got advice, which showed him that (as the Court of Appeal said) he had been denied Natural Justice at almost every stage of the process, and the final decision was fundamentally flawed in almost every regard.
The Court of Appeal give some useful guidance for management of cases involving litigants in person (this can only be aimed at Judges, since there’s no prospect of LIPs being aware of this case, never mind drawing judicial attention to it)
The unusual features of Re BB (A Minor) 2013
It is not unusual within care proceedings to be arguing whether a child’s parents are good parents, or whether they could be brought to the point of being good parents. It is not THAT unusual to be arguing about whether one of the parents is, in fact, not a birth parent of the child and that paternity lies elsewhere. It is pretty unusual to be arguing that NEITHER person claiming to be the child’s parent is in fact their parent.
That’s what happened here. The parents claimed that the mother had had a child in Ghana in 2006, and then that the father brought that self-same child into this country in 2010.
The immigration officers, however, had concerns that he appeared to be older than his given age. UK Border Agency records produced for these proceedings show that F asserted in the course of interviews with immigration officers that B was then five years old and he had been in the womb of his mother for twelve months and had always been big for his age ever since
When the child went to primary school, professionals became concerned that he was much older than his documented age, a paediatrician who examined him when he was ostensibly aged 5 instead concluded that he was 10.
Care proceedings began, no doubt with a view to getting to the bottom of all of this. DNA testing showed that neither parent was the biological parent of the child. There was a suggestion that the child might be related to the father in some other way.
All of this was problematic, since the child had been brought into this country by deception, and that deception rendered the decision by the UK Border Agency to allow him in null, thus meaning that he was here illegally and could be removed from the country, through no fault of his own.
“The problem facing immigration judges is that, although they must attach weight to the best interests of the child, in many cases they will often not be able to assess what those best interests are without the assistance of a decision of the family court. The family court has, amongst other things, procedural advantages in investigating what the child’s best interests are independent of the interests of the parent as well as the necessary expertise in evaluating them. An informed decision of the family judge on the merits and, in some case at least, the material underlying that position is likely to be of value to the immigration judge.”
Findings were sought on the following issues :-
(1) how old is B; (2) to what extent have F and C been deceptive as to his age and paternity; (3) has B suffered any significant harm as a result of this deception or, more generally, as a result of the care provided by F and C; and (4) what is the likelihood of B suffering significant harm in the future as a result of the deception perpetrated by F and C and/or their general care of him?
On age, the Court determined that B was 14 years old, having been born in April 1999 (some seven years older than the parents, at the time of the hearing, claimed)
The parents had lied about his age and paternity and blurred such memories as the child did have, causing him significant emotional harm. The Court were scathing about that, whilst accepting that for B, the best thing would be for him to live with F and C under a Residence Order and for them to be honest with him in the future.
The Court also made a Supervision Order. Sadly for my inner law geek (my inner law geek is just millimetres below my outer exterior, to be honest) the Court did not debate this interesting question.
s31 (2) of the Children Act 1989 sets out the threshold criteria – the test that must be crossed if a Court is to be able to make a Care Order or a Supervision Order
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 significant harm here is not in doubt, there’s a clear judgment about the emotional harm that lying to a child about his age, background and identity and seeking to conceal that from those around him would cause, and it would not be reasonable to expect a parent to do this. But this couple were not parents. Is there an implied link in that ‘reasonable to expect a parent to give to him’ which means that the harm or likelihood of harm HAS to flow from a parent. (Admittedly that can often take the form of the parent exposing the child to, or failing to protect the child from, AN ADULT other than a parent who harms him). But here, whoever B’s parents were, it wasn’t them who harmed him, but the people who took on a parenting role.
It is very legal nit-picky, but that’s who I am. In previous cases, I have seen the harm established as a result the PARENT exposing the child to or failing to protect from the adult who did harm the child, or in the cases where the injury might have been caused by a child-minder, either exoneration of the parents (if they could not have predicted any risk) or a Lancashire finding (if the parents could not be excluded)
If there IS no implied link between significant harm and it being the parent who caused it, can significant harm (for s31 purposes) be caused by the child being at school and a teacher hitting or molesting the child? My heart says no, that unless there was a failing on the part of the child’s parents, whilst the child has undoubtedly been significantly harmed, the ‘harm being attributable’ limb is not made out. But a case like this makes me wonder a little.
[I think that the Court could have said, for example, to all extents and purposes, these people behaved as though they were parents, and will be treated as such for the purposes of s31 (2) - it is their actions in being his primary care-givers that places them in the context of 'parents']