This is a truly awful situation. C is ten years old. She is in hospital with very serious injuries from a fire at her home. The fire killed her sister and her mother. The evidence at this stage suggests that the mother set the fire.
D is the man named as the father on her birth certificate but DNA testing has established that he is not her biological father – he would wish to be involved in her life but does not put himself forward as a carer.
A Local Authority v The child C [2024] EWFC 336 (21 November 2024)
http://www.bailii.org/ew/cases/EWFC/HCJ/2024/336.html
The Judge, Peel J, makes this clear about the LA
I make it abundantly clear that from everything I have seen and heard, the LA, whether proceedings take place under Part IV of the Children Act 1989 as a care application, or under the wardship jurisdiction, is utterly committed to promoting the best interests of C. This is not a LA which needs judicious encouragement to do so, or which will tailor its approach depending upon which legal framework is adopted.
Two legal questions arose from this very tragic set of circumstances. The first is whether the actions of a parent who died before the proceedings began can amount to conduct that satisfies the threshold criteria. The second is whether the correct legal approach in a case of this kind is care proceedings or wardship.
On the date of the application here, the only relevant parent was deceased. A query arises as to whether it would be open to the court to make a threshold finding in these unusual circumstances. Both the LA and the Guardian agree that the LA is entitled to bring, and the court can consider, care proceedings even though the parent was deceased at the time of the application. They tell me that absence of authority on the point can cause difficulties in similar cases.
Whether, however, care proceedings are the appropriate course is another matter entirely.
There are two pre-requisite conditions for the threshold to be crossed.
First, by s31(2)(a) the court must be satisfied that “the child concerned is suffering, or is likely to suffer, significant harm”.
Second, by s31(2)(b) that (so far as relevant to this case) “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”.
It is well established that the relevant date for the first condition (harm) is the date of the application or, if earlier, the date upon which protective measures were implemented and continuously in place until the application. This applies both to harm which has already taken place (Re M [1994] 2 FLR 577) and to the likelihood of harm in the future (Southwark LBC v B [1998] 2 FLR 1095). This is entirely logical; if it cannot be shown at the date of the application that a child is suffering, or likely to suffer, significant harm, then there is no basis for the application and no justification for state interference.
Does the second condition (attributability) depend on the parent giver being alive at the date of the application? In theory, the argument may be that if the parent who caused harm prior to the date of the application is deceased, then it is not possible to attribute harm at the date of the application and accordingly it is not possible to make a threshold finding. I confess to find it somewhat difficult to follow this logic. There is, so far as I am aware, no temporal requirement for the second condition, namely the attributability of harm; in other words, it is not a condition that the attributability must be referable to parental care at the date of the application (which might exclude a deceased parent who is in no position to give care). There does not appear to be a case directly on the point. However, it seems to me that s31 should be interpreted purposively, and support for that approach can be found in Re J [2017] EWFC 44 where the parents of unaccompanied asylum-seeking children were either missing or deceased, and certainly were not in the position of carers at the time of the application. Peter Jackson J (as he then was) had no hesitation in concluding that the threshold criteria had been met.
In my view, the attributability requirement is not to be confined to, or aligned with, the date of the application. C was at the date of the application suffering significant harm. That harm was, on the evidence currently available, attributable to the actions of her mother a mere 7 days previously. It would be extraordinary if, in such a situation, the Local Authority could not take steps to protect the child. It would lead to the anomalous situation that the court would not be able even to inquire into threshold, however, desirable that might be, or seek protective orders. The purpose of Part IV of the Act is to enable children who are suffering, or likely to suffer, significant harm caused by parents to be protected from that harm by Local Authority intervention. To neuter s31 because the parental perpetrator of harm is no longer alive would be an unexpected, and unfortunate consequence. But in my judgment that is not the intention of the Act, nor is it what the Act says. A plain reading of the words in s31(2)(b) that the harm must be attributable to “the care given to the child” must include past care, i.e before the date of the application, which led to the application itself. The wording does not expressly add “at the time of the application” or some such rider. Nor does it say that a parent must be alive at the time of the application. If my analysis is correct, then it matters not whether the parent is alive, or dead, or missing. What matters is whether the LA can establish (i) harm at the date of the application (or, if earlier, when protective measures implemented and carried through to the date of the application) and (ii) attributability of that harm i.e that it is a consequence of parental acts or omissions.
I therefore conclude that it would be open to the court to make threshold findings even though C’s mother was deceased at the time of the application for a care order.
(Of course, if the evidence were to establish that the mother were not responsible for the fire, or for any failure to properly act to protect once the fire occurred, then it might be difficult to establish threshold…)
On the question of care proceedings versus wardship, Peel J said the following :-
Decision as to care proceedings or wardship
- On balance, I take the view that the preferred course is for proceedings to take place within the statutory framework provided by the Children Act 1989 rather than under the inherent jurisdiction through wardship, for the following reasons.
i) The first category identified in Re GC clearly does not apply. It is not “obvious” that the LA will be unable to satisfy the threshold criteria. On the contrary, based on the evidence currently before me, it seems probable that the criteria will be met without a need for elaborate or extensive inquiry. The coroner’s inquiry, which is due to be completed in January 2025, should add to the understanding of the circumstances in the foreseeable future. Other evidence may come to light and of course the court can take into account information which becomes available after proceedings commence: Re G [2001] 2 FLR 1111.
ii) At the very least, the interim criteria under s38 are comfortably met. Thus, an ICO can be made to govern proceedings until such time as a final determination on threshold is made.
iii) The second category in Re GC requires the court to consider (1) whether withdrawal of the care proceedings will promote or conflict with the welfare of the child concerned and (2) the overriding objective under the Family Procedure Rules.
iv) As indicated above, in my judgment the fact finding part of the Part IV proceedings is likely to be straightforward, capable of being dealt with at a short hearing.
v) Further, it will give a solid factual foundation for the welfare disposal, which will impact on all aspects of C’s wellbeing. I regard it as important for the truth to be known not just for the welfare determination, but for the rest of C’s life.
vi) The fact finding inquiry would take place within the care proceedings where C is represented. The court can make findings against deceased or missing persons as Peter Jackson J did in Re J (supra).
vii) There is no reason to think that C would be affected more negatively by care rather than wardship proceedings or vice versa.
viii) Similarly I do not have any reason to think that C’s family, who are of considerable importance to her future, would be impacted any more or less by care or wardship proceedings.
ix) The LA would acquire parental responsibility under a care order in circumstances where no other person has parental responsibility. There would be no doubt as to the LA’s role and responsibilities. Thus, the proposed list of delegated functions drawn up by the parties would necessarily fall upon the LA to discharge. There would be no need to return to court in the event of any doubt, as might be the case under wardship.
x) It seems to me that it is preferable, more readily understandable and far more in tune with modern thinking, for C to have the comfort of a statutory body exercising parental responsibility rather than to be subject to the ancient concept of wardship.
xi) Of course, serious medical treatment would need to be determined under the inherent jurisdiction. To date, that has taken place consensually. It can take place separately from the care proceedings.
xii) A care order (whether interim or final) would give a clear delineation of responsibility which, for example, may assist both the LA and the Hospital Trust in working through hospital care for C.
xiii) The outcome which the LA seeks to achieve, namely placement with family members, can be properly secured both under care proceedings and wardship. But there is no obvious reason for the assessments, and exploration of all options, not to take place under the statutory framework and in accordance with settled case law.
xiv) Although I am confident that the LA is entirely committed to promoting C’s welfare, should that, for whatever reason, change, the ability of the court under wardship to order the LA to approach the case in a particular way, or devote resources for a particular purpose, would be constrained whereas under care proceedings the LA would always be subject to its statutory duties.
xv) Wardship remains an option for the future. If, for example, the threshold criteria are not crossed, or become much less clear cut for whatever reason, it may then be the appropriate route; see, for example, Re K [2012] 2 FLR 1 where Hedley J elected to make a wardship order in respect of severely disabled children rather than explore threshold where there was some doubt as to whether the threshold criteria would be met and it was held to be inimical to their interests to pursue threshold findings. Another example might be if the lines of communication between the Hospital Trust and the LA become frayed or unworkable.
xvi) By reason of care proceedings, the court will retain general oversight and can list hearings as appropriate. There is no question of the court simply abdicating responsibility unless and until C’s future is settled. This is plainly a complex case, and the court will need to scrutinise carefully the care plan and various options.
xvii) Whilst wardship is a very flexible jurisdiction, it should generally be deployed only in order to fill gaps which are not provided for by the statutory frameworks for children. Here, I am not persuaded that there are any such gaps. Accordingly, in my judgment, to make a wardship order risks cutting across the statutory regime under Part IV of the Children Act 1989 and, in particular, s100(4) and (5) thereof.
xviii) Finally, and importantly, continuation within care proceedings will require a tight timetable in accordance with the Public Law Outline. The 26 week limit expires on 5 February 2025, and I will require the IRH/final hearing to be listed before then. Wardship, by contrast, is not subject to the same strictures.
Conclusion
- Accordingly, I am satisfied that:
i) The application for permission to withdraw the care proceedings should be refused.
ii) The application for leave to apply for a wardship order should be refused.
iii) An interim care order should be made.
iv) Directions should be given in the care proceedings. In particular, this case must be listed for IRH/final hearing before the end of the 26 week limit. At that hearing, if it is not possible to conclude proceedings, the court will give consideration to future directions and whether the case should continue under wardship.
v) The declaration of non-parentage, and termination of parental responsibility, in respect of Mr D shall be adjourned to be considered at the IRH/final hearing. Mr D shall file within 21 days his case on this matter.
suesspiciousminds 