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February 27, 2023

Re H (Parents with learning difficulties: risk of harm) [2023] EWCA Civ 59

Earlier this month the Court of Appeal handed down its judgment in the above case.  It contains nothing new, but it provides a timely reminder about the law regarding two aspects of children cases that continue to cause difficulties for social work and legal professionals alike.

For many of us the most interesting aspect of the case, and certainly the most arresting fact about it, is that it was an appeal against a 138 page judgment (single-spaced!) that ran to some 85,000 words – in a care case in which threshold was agreed and the argument was about what we tend callously to refer to as ‘disposal’.  Whilst telling us that he had in mind ‘the axiom about pots and kettles’ Lord Justice Baker, who delivered the substantive judgment of the court, had quite a lot to say about the length of the judgment under appeal.

Far be it from me to cast aspersions about prolixity (as I fear is about to become apparent), but those of you who sit part time in judgment on the rest of us might want to have a look at what Baker LJ says about the length and content of the judgment and at the helpful authorities to which he refers in that regard.

For those of us toiling at the coalface, however, the key messages are about the provision of support for parents to enable them to continue caring for their children and, separately, about how to establish the likelihood or risk of future harm.  Obviously I will deal with the second point first.

Likelihood or risk of future harm

Nothing has changed about establishing the likelihood or risk of future harm. The law in that regard was made clear in Re H (Minors) (Sexual abuse: Standard of Proof) [1996] AC 563 and thoroughly reviewed in Re B (Children) (Care proceedings: standard of proof) [2008] UKHL 35 and again in Re S-B [2009] UKSC 17.

We are all familiar with the binary system: either a fact in issue is proved (on the balance of probabilities) or it is not, and if it is not proved, the event in question is treated as not having happened.  Simple.  However, what of the likelihood or risk of future harm?

‘Likelihood’ is the word used in s31 CA 89.  ‘Risk’ is the word used in s1 (3) (e) CA 89 and in s1 (4) (e) ACA 02.  I might or might not once have known why different words are used, but what we now know is that they mean the same thing and are established in the same way.

Baroness Hale, who also presided over Re B in the House of Lords, was very clear in Re B-S:If the case is based on the likelihood of future harm, the court must be satisfied on the balance of probabilities that the facts upon which that prediction is based did actually happen.  It is not enough that they may have done so or that there was a real possibility that they did.’

Importantly, in Re B Baroness Hale endorsed remarks made by Lady Justice Butler-Sloss (obiter, if I remember correctly) in Re M and R (Minors) (Child abuse: evidence) [1996] 2 FLR 195 to the effect that when considering s1 (3) (e) the task of the court is to decide whether the evidence establishes the harm or risk of harm and that the standard of proof to be applied is the balance of probabilities.

The problem arose in Re H because in the context of what was clearly a family with a lot of ‘issues’ there had been care proceedings about the parents’ older children in which multiple ‘concerns’ about sexualised behaviour and inter-sibling sexual activity had not been litigated and were not the subject of any findings[1] or admissions but the local authority was ‘concerned’ about sexual risk towards the new baby (H, who interestingly remained at home throughout the proceedings and was 22 months old by the time the C of A judgment was handed down).  In spite of the ongoing ‘concerns’ the local authority did not seek to establish the fact of any of the suspected abuse in H’s proceedings.

The judge at first instance, at paragraph 300 (!) of his judgment, said that he had not dealt with the sexual abuse allegations ‘as if the allegations were proven fact.’  Alarm bells must have rung very loudly when his next word was ‘However…’ He went on to say that the parents’ views about whether certain of the older children ‘may’ pose a sexual risk to H were ‘an important factor’; for example ‘both parents accepted that there was a possibility that F had sexually abused G and, therefore, that he posed a sexual risk to H.’ The response of the Court of Appeal can be condensed to just two words: so what?

Baker LJ summed it up, in a few more words, at [59]: ‘Despite the very clear warnings the judge gave himself that the various allegations of sexualised behaviour and abuse between the older children had not been proved, he nevertheless proceeded on the basis that H “is at risk” of suffering sexual harm.

Very importantly, at [60] Baker LJ mentions that the professionals (psychologists as well as social workers) ‘on whom the judge relied heavily in reaching his decision’ had proceeded on the basis that ‘the local authority’s concerns were sufficient to establish the risk.

It is, regrettably (the law having been clear for so long), not uncommon to see social work statements and experts’ reports that not only set out ‘concerns’ but then rely on those ‘concerns’ when making recommendations to the court.  That approach is dangerous, as reliance on unproven allegations runs the risk of infecting the whole analysis and reveals a significant lack of intellectual rigour.

I have some sympathy for professionals faced with a strong suspicion that something has happened which, if it has happened, is clear evidence of future risk.  That was the position in Re B (in which I confess to having been on the losing side) and it worried not only the professionals but also Mr Justice Charles, who in effect created the opportunity for an appeal, and the Court of Appeal who nodded it through to the House of Lords.  Nevertheless, we all now know as an absolute certainty that the risk of future harm can only be established on the basis of proven or admitted facts.  As Baroness Hale said in Re B: ‘I do not underestimate the difficulty of deciding where the truth lies, but that is what courts are for.’

My colleague Emma Roberts has recently written about the revival of the PLO, which by way of collateral damage will include a renewed attempt to reduce the number of fact-finding hearings.  Re H makes it clear beyond peradventure that facts are extremely important.  (Who knew?)  I suggest that one way we can try to square the circle is to remember that finding facts does not always mean having a split trial.  Sometimes the fact-finding exercise can be part of a composite final hearing, and assessments for such hearings can be written in the alternative.  That’s not an easy process, but I’m so old I can remember when it was the default position (OK, it was pre-Children Act but even back then we had courts and things) and I suspect there might be an attempt to revive it – see for example Mrs Justice Lieven in the Lincolnshire case [2021] EWHC 2813 (Fam).

Support for parents (and others)

The parents in Re H both had cognitive difficulties, which in the mother’s case amounted to a diagnosed learning disability.  The question arose as to how much support they would need if H were to remain in their care and what the implications were of the answer to that question.

Roger Hutchinson suggested that it might be possible for H to remain with her parents ‘if the LA were to provide, both now and into the long term, a high level of support and continued teaching, training and guidance to reinforce that which is required of them in order to provide H with safe, consistent and adequate parenting as she grows from being a relatively undemanding infant into a more demanding toddler, child and adolescent.’

Other professionals, including Dr Gabrielle Gregory, the LA team, an ISW and the children’s guardian, are said to have had a common view that what was suggested by Mr Hutchinson would be ‘far in excess of that which would be in H’s welfare best interests’, that it would amount to ‘substituted’ or ‘corporate’ parenting for many years to come and that it was ‘far in excess of anything that the LA could be reasonably expected to provide.

If you have a case in which support is an issue, and I suggest this applies not only to parents but also to other family members who are assessed as possible kinship carers (s17 CA 89 refers to the LA duty to promote children being brought up by their families, not by their parents), you ought really to read Re H and in particular paragraphs 42-48 and 65-69.  It will amount to revision rather than new learning, but as Re H itself demonstrates, we all need a little reminder from time to time.

The reference at [43] to the judgment in the Northern Ireland High Court of Mr Justice Gillen in Re G and A (Care order: freeing order: parents with a learning disability) [2006] NIFam 8 is important.  That most humane of judgments reached our Family Division when it was not merely cited by Sir James Munby P in Re D (A child) (No 3) [2016] EWFC 1 but was set out in an appendix to his judgment.  Sir James in turn is quoted by Baker LJ at [44]: the positive obligation on the State under Article 8 ‘imposes a broad obligation on the local authority in a case such as this to provide such support as will enable the child to remain with his parents.

Baker LJ tells it like it is, or at least like it should be.  It can be summed up as follows:

Para 65: A local authority cannot press for a plan for adoption simply because it is unable or unwilling to support the child remaining at home – to which I would respectfully suggest can be added ‘or in his wider family.’

Para 65: Judges need to be wary of arguments based on the concept of ‘substituted parenting’.  They should carefully scrutinise the evidence adduced by the local authority that the level of support required by the parents would be on a scale that would be adverse to the child’s welfare and should look for options for ameliorating the risk of harm that might result from the high level of support.

Para 67 : the starting point should have been, first, to identify and describe the level of support needed by the family, secondly ascertain what can and should be done under the local authority’s obligations, and thirdly to determine whether, with that in place, the child’s welfare needs will be met.   

When going though that exercise, courts should (I suggest) be reminded of the following passage from Sir James Munby’s judgment when Re B-S was passing through the Court of Appeal: at Re B-S (Children) (Adoption: Leave to oppose) [2013] EWCA Civ 1146 at para 29 ‘It is the obligation of the local authority to make the order which the court has determined is proportionate work.  The local authority cannot press for a more drastic form of order, least of all press for adoption, because it is unable or unwilling to support a less interventionist form of order.  Judges must be alert to the point and must be rigorous in exploring and probing local authority thinking in cases where there is any reason to suspect that resource issues may be affecting the local authority’s thinking.’    

In summary, it is not enough for professionals merely to assert that the support required will be harmful to the child because it will amount to corporate or substituted parenting.  The new(ish) mantra will be ‘support, not supplant’ (see the end of para 47 in Re H) and there must be a clear exposition of what support would be needed and why (if it be asserted) that support simply cannot be provided or why (if it be asserted) the level of support would be harmful to the child.

Judges, of course, do not hold the purse strings.  It is all about how we, all of us, prioritise the use of public money. But do not get me started….

Stuart Fuller

[1] In the proceedings about G, the youngest of H’s siblings, the same judge who was appealed regarding H rejected an application by the children’s guardian for him to invite the LA to seek just such findings.