This reported case is a Circuit Judge decision, so not binding on any other Judges, but it is interesting and raises a potentially important issue.
C (Interim threshold not crossed)  EWFC B5 (15 February 2019)
A child C, was 6 1/2 and had lived, for all but four months of his life, with his maternal grandparents, who held a Child Arrangements Order. C’s cousin, D, was admitted to hospital with fractures to both legs, she being a non-mobile baby. A police investigation was taking place in relation to D’s injuries. As part of that, the police informed the Local Authority that for a period during the time when those suspicious fractures had occurred, D had been spending time with the grandparents.
In the vernacular, the grandparents (whilst by no means the main suspects for those injuries) were in the ‘pool of perpetrators’ – or were they?
- On 8 th October 2018, [the] police apparently advised the local authority that C should be removed from the care of his maternal grandmother and placed with his aunt R, while further and urgent investigations were undertaken. The grandparents reluctantly gave their section 20 consent to this, feeling they had no option. The local authority applied for emergency protection orders for D and her brother E on 11 th October, and subsequently care proceedings were issued. Those two children are subject to interim care orders and are currently in foster care. HHJ Owens has listed a fact-find hearing to determine the cause of D’s injuries, due to take place in the week before and after Easter, in April 2019.
The LA issued care proceedings for C (I don’t know that I would have done that, prior to a decision being made about D’s injuries, but the LA were obviously worried that C’s carers may have been responsible for such serious injuries to a baby. It rather depends on whether that’s a theoretical possibility that they might have been responsible based just on timing, or some evidence that pointed more strongly towards them)
The Court had originally made an EPO and later ICO for C.
This was the judgment from a later contested ICO hearing. It was complicated further because the LA were proposing that C be placed with his father (who was not involved in D’s life at all and thus absolutely not under any suspicion about D’s injuries)
#spoiler alert – the title of the case rather gives away the judicial decision, but read on to find out why.
An argument deployed at Court was that the Court, faced with a father and grandparents, could apply a private law filter to the case and decide which placement was better for the child in the interim while D’s injuries were being assessed (in effect, a ‘beauty parade’ exercise)
The Court, rightly, did not agree. The legal position had to be that the child be with grandparents unless the LA could satisfy the Court that there were reasonable grounds to believe he was likely to suffer significant harm in the grandparents care and further, that the risk of harm was such that C’s safety required separation from the grandparents.
- I have found this application difficult to determine because it was initially presented to me as a simple exercise of my discretion in respect of weighing up the pros and cons of two competing placement options, but, for the reasons I have given, I do not regard that as the correct approach as a matter of law. I am grateful to all counsel who have shown flexibility in dealing with the issues that were troubling me, but I have received no written submissions about the question of interim threshold, and no evidence or submissions in respect of the application of the welfare checklist. Because there has in my judgment been inadequate formulation of the nature of the risk that each of the grandparents is said to present to C, there has been inadequate consideration as to how those risks might be contained so as to enable C to continue to be cared for by his grandparents. The case law is clear that the key to any application for an interim care order in which it is proposed that a child is separated from his primary care givers is proportionality. I have had no evidence or submissions to enable me to consider whether the course of action proposed by the local authority is necessary or proportionate in safeguarding C’s welfare.
- The threshold document is very short on factual detail and does not explain why it is said that C, who it is accepted has never suffered any harm in his grandparents’ care, is at risk of significant harm from either of them.
- Paragraphs one to nine set out the history of D’s admission to hospital and the local authority’s concerns about the care she and her brother E received in their mother’s care.
- Paragraphs 10 to 16 concern the grandparents, although there is not a single specific allegation against the paternal grandfather.
- At paragraph 10 it is said that E has spent a considerable amount of time in the care of his maternal grandparents. It is then pleaded:
The maternal grandparents have, therefore, had, at the very least, very regular contact and extensive contact with their grandchildren and have failed to protect them from suffering significant harm.
- There can be no doubt that D has suffered significant harm. However, this paragraph does not plead when either of the grandparents had regular or extensive contact with D, or in what way they should have acted in order to prevent her serious and significant injuries. The threshold document does not identify which, if any, of the injuries allegedly sustained by E amount to significant harm. It is not pleaded in what respect either of the grandparents should have prevented his injuries being sustained.
- At paragraph 11(a) the local authority pleads that it considers that C would be at immediate risk of significant harm if he returned to the care of his grandparents at this time, because:
(i) D’s treating clinicians consider that her injuries were inflicted non-accidentally;
(ii) None of the adults who had care of her or were in contact with her at the time have been able to provide any explanation for the injuries;
(iii) The paternal grandparents and extended family, are reluctant to acknowledge the possibility of the injuries being inflicted non-accidentally … and show a lack of acceptance around the severity of D’s injuries and the need for local authority involvement with the children.
- In my judgment, this paragraph fails the President’s test in Re A . It does not set out why the A + B + C of D’s injuries and the grandparents’ reluctance to contemplate their being inflicted non-accidentally amounts to the X + Y + Z of an immediate risk of significant harm to C if he was in their care. Within the evidence, I have not seen a specific reference to either of the grandparents suggesting that there should not have been local authority involvement with D. There is a reference in the first social work statement to the maternal grandmother expressing her reluctance for C to be living with his aunt stating that ‘she had done nothing wrong’ , but if this is what is relied upon, it is not explained why this would mean that C is at risk of significant harm.
- It is not specifically pleaded whether either of the grandparents was caring for D or in contact with her at the time her injuries were sustained, or whether they were specifically asked to give an explanation or not. If they were not there when the injuries were sustained I am not sure why they should be criticised for not having an explanation for their cause.
- If proved, showing a lack of acceptance around the severity of D’s injuries and the need for local authority involvement, is of course a valid concern in general, but in my judgment not on its own sufficient to stand as an explanation that C is at ‘immediate risk of significant harm’ from his grandparents.
- Paragraph 11(b) includes the statement that ‘one of the adults within the potential pool of perpetrators is the maternal grandmother’.
- It was repeated to me a number of times in submissions that the grandmother is ‘ in the pool of perpetrators’ . She is not. A person is ‘in the pool’ only after a finding of fact has been made to that effect. I understand that an allegation has been made against her within D and E’s proceedings, but findings have not yet been made. The threshold is for the local authority to prove. If the grandmother is alleged to be in the pool of perpetrators as part of these proceedings, it is not because she accidentally found herself there, or someone else put her there, it must be because the local authority positively asserts that she had the opportunity and the motive to cause these very serious injuries, and that she was there at the time the injuries thought to have been sustained. In support of its assertion, and in order for the Court to come to the conclusion that there are reasonable grounds to believe that C is at risk of suffering significant harm from his grandmother, the local authority must spell this out in its threshold document and provide evidence in support.
(*On first reading, I thought that HHJ Vincent was saying a person is only ‘in the pool of perpetrators’ if a finding of fact about the injury has been made, but he is saying that actually a finding of fact has to be made that ‘X and Y and Z are the people who could have caused the injuries to C, if the Court later goes on to find that C was injured deliberately’ – that doesn’t usually arise, because the issue of whether someone is ‘in the pool’ is not itself contentious. But of course here, and in any case where a child is potentially being placed with family members whom the LA assert may be ‘in the pool of perpetrators’ – the issue really should be whether the LA satisfy the Court that this person is reasonably likely to be ‘in the pool’ and they are not just placed ‘in the pool’ on the LA’s say so. The remarks about ‘motive’ are interesting, because there’s barely ever evidence as to motive in physical harm to children. But of course, it is relevant for the Court to consider a 6 year period of problem-free care of C, the limited time the grandparents would have spent with C and lack of evidence as to say – substance misuse, anger management, violence, or being overwhelmed or frustrated, because those are the usual causes of physical abuse – it is very rare to see actual evidence of sadistic intent)
- I have not found any other evidence within these proceedings to suggest that the maternal grandmother had care of D in the week or so before her admission to hospital.
- Nonetheless, SW still asserts in her conclusion that ‘MGM is currently in the pool of perpetrators for causing injuries to D and/or failing to protect her’.
- A perpetrator does not fail to protect, they perpetrate. The pleaded allegation is that MGM is in the pool of perpetrators.
- I am unaware of what is pleaded against MGM in the proceedings concerning D and E, and I accept there may be specific allegations and evidence that puts her in the frame more clearly. However, I am concerned with C, and the pleaded threshold document in respect of him. The threshold document does not explain upon what facts it relies to suggest that the grandmother could reasonably be believed to be in the pool of perpetrators, and scrutiny of the local authority evidence in this case does not assist.
- At paragraph 12 it is pleaded that D’s injuries are so severe, ‘with no explanation as to causation and no clarity, at present, around the possible perpetrator, that the local authority does not consider that it can be safe for C to return to his grandmother’s care’. Again, this allegation does not explain why it is that the severity of D’s injuries and the fact of the perpetrator remaining unidentified pose an immediate risk of harm to C from his grandmother.
This next paragraph, it took me a while to work out who “Q” was – it is the mother’s partner.
- At paragraph 13 it is alleged that the presentation of the maternal grandmother and mother’s presentation at the hearing of the EPO were ‘extremely alarming’. They were seen to physically and verbally restrain Q by sitting on him and putting their hands over his mouth, while he clenched his fist. This allegation may well need to be explored further, but whether true or not and whatever the reasons for and the significance of this behaviour is, again, the threshold document does not explain why this means that C is at immediate risk of significant harm from his grandparents.
Is interim threshold crossed?
- I have looked at the threshold allegations carefully.
- I have considered all the evidence in the bundle and I have listened carefully to the oral evidence of Y and of the guardian.
- I am not satisfied that threshold is pleaded with sufficient clarity to set out why it is said that either the maternal grandmother or the maternal grandfather present an immediate risk of significant harm to C. I have reviewed all the evidence and I am not satisfied that there are reasonable grounds for believing that on the date protective measures were taken, C had suffered or was at risk of suffering significant harm as a consequence of the care given by his grandparents, which or that the care given by them was not the level of care one would reasonably expect a parent to give.
- I do not accept that asserting repeatedly that the grandmother is in the pool of perpetrators with respect to D’s injuries, and being concerned that there is insufficient information and clarity around the circumstances of D’s injuries is sufficient to form the basis of a threshold allegation against the maternal grandmother. so far as C is concerned. If the local authority wishes to put forward a positive case in respect of the maternal grandmother then it is required to set out in the threshold document what facts are relied upon and then to provide the evidence in support of its contention. They have not done so. The evidence is at best equivocal. While at an interim stage there is of course no requirement to prove the section 31 final threshold is crossed, there must be evidence to satisfy the Court that there are reasonable grounds to believe the section 31 circumstances exist.
- There is no single specific allegation against the maternal grandfather in the threshold document.
- All the remaining allegations are generalised and none of them provides an explanation as to why it is said that the care that has been given to C or is likely to be given to him by his grandparents should he return to their care, is below what one would reasonably expect from a parent, and why it would put him at risk of suffering significant harm.
- Because I do not find interim threshold to have been crossed, I have no jurisdiction to make an interim care order in respect of C and he should in my judgment be returned to his grandparents’ care.
- In reaching this conclusion I am not suggesting that the local authority’s concerns about the grandparents are baseless, and I accept that SW and the guardian have genuine concerns about the grandparents’ ability to work co-operatively with them, their insight and acknowledgment of the severity of D’s injuries and the existence and impact of domestic abuse upon their grandchildren. However, the case law is clear, the local authority must meet a high standard when seeking to justify the continuing separation of C from his grandparents. I must only consider making an order which interferes with their right to a family life where the strict statutory grounds are made out.