A recent court of appeal case (H, Re) illustrates that potential risks of significant harm are not enough for the state to remove a child from the family home, even when the parents have disabilities rendering them unable to prevent such harm to their children.
The parents of H, a girl born in 2021, lived with cognitive difficulties and the mother had a diagnosis of learning disability. H’s four older siblings each displayed various cognitive impairments.
The council had been heavily involved with the family since 2011 when the oldest boy – known as D, then aged 12 – was alleged to have inappropriately touched a five-year-old girl. D was moved into care.
Continuing concerns over the three other children’s relationships with associates of the family, allegations of aggressive and sexualised behaviour as well as intermittent violent explosions were recorded. By 2019, the council had started care proceedings for all four children.
In 2021, when H was born, the council immediately issued care proceedings. An interim order allowed her to remain at home under a working agreement.
Despite continuing reports of aggressive behaviour by one older sibling still at home, H was seen as developing well, with age-appropriate behaviour; there were no concerns about the mother’s basic childcare, with professionals observing emotional warmth and affection between her and H.
The judge in the lower court had failed to subject the evidence to the degree of rigorous scrutiny required in these circumstances
On 13 June 2022, the final care hearing took place where the judge made care and placement orders.
On appeal, it was asserted that the judge had erred on several aspects central to the allegations of risk. In particular, he had not looked closely at the level and nature of support the family would likely require and qualify for if caring for H; this had led to an erroneous conclusion that this would amount to “substituted parenting” which would not be forthcoming or sustainable. The judge also failed adequately to consider what work by social services had been undertaken.
Risk without factual foundation
The court had no proven or admitted factual foundation on which to conclude the older brothers posed a sexual risk to H. One was imminently moving out and the other was rigorously supervised by professional staff whenever in contact with his family.
In addition to the duty under section 17(1) of the Children Act, the obligation on the state to provide support so children can remain with their parents has been recognised as an aspect of the state’s positive obligations under article 8 of the European Convention on Human Rights, per Re D.
The council and guardians contended that the extent of the long-term support required to ensure adequate parenting would be far in excess of what the local authority could reasonably be expected to provide.
Duty led by needs
However, the appellants contended that the duty is a needs-led process with no blueprint and the judge should have identified precisely the package of support that would have to be provided before concluding it would not be funded.
Without that exercise, the pros and cons of other placement options could not have been considered or compared, and it was not acceptable for the judge to have concluded that other placement options were in H’s best interests simply because he had characterised the level of intervention required as “not reasonable, sustainable or in H’s welfare’s best interests”.
The appellants also relied on Peter Jackson LJ in Re F, stating that it was necessary for courts, when evaluating the risk of future harm arising to any child, to evaluate the steps that could be taken to reduce the likelihood of the harm arising or to mitigate the effects if it did.
The psycho-educational work that the court had been advised both parents should receive in order to understand the nature of any potential sexual risks to the children had not been provided.
A Care Act assessment had concluded that the mother was independent in all daily activities and did not meet the eligibility criteria to receive services from adult social care.
The appellants submitted that the judge failed adequately to evaluate alternative placement options in terms of proportionality – in particular, the impact on H (who had, to date, suffered no identified harm) of breaking the close attachment she had formed with her parents, particularly her mother, with whom she had always lived.
The appeal was allowed. Importantly, the court noted that section 1(3)(e) of the Children Act and section 1(4)(e) of the Adoption and Children Act 2002 require the court to take into account any harm that the child is at risk of suffering, not the possibility of such risk. Any considered risk needed to be established on the basis of proven fact, not mere possibility.
Judge Baker LJ agreed that the judge in the lower court had failed to subject the evidence to the degree of rigorous scrutiny required in these circumstances.
For example, that judge had recognised that the council would have to maintain an (undefined) “high level of support and intervention in the family for many years to come” without taking into account the provision of support for eligible parents with learning disabilities under the Care Act.
The judge had failed adequately to evaluate alternative placements in terms of proportionality – in particular, the impact on the child
The judgment cited the decision within In the Matter of Re G and A in some detail. This noted that “parents with learning difficulties can often be ‘good enough’ parents when provided with the ongoing emotional and practical support they need.
“The concept of ‘parenting with support’ must underpin the way in which the courts and professionals approach, wherever possible, parents with learning difficulties…
“Children of parents with learning difficulties often do not enter the child protection system as the result of abuse by their parents. More regularly, the prevailing concerns centre on a perceived risk of neglect, both as the result of the parents’ intellectual impairments and the impact of the social and economic deprivation commonly faced by adults with learning difficulties.
“It is in this context that a shift must be made from the old assumption that adults with learning difficulties could not parent to a process of questioning why appropriate levels of support are not provided to them so that they can parent successfully… rather than automatically assuming that they are destined to fail.
“The concept of ‘parenting with support’ must move from the margins to the mainstream in court determinations.”
Emman Kaur is a volunteer writer at CASCAIDr
H, Re (Parents With Learning Difficulties: Risk of Harm)  EWCA Civ 59
(02 February 2023).