THE BRACEWELL ESSAY PRIZE 2011/12

To be....or not to be at risk? Are the courts protecting children appropriately from the likelihood of future significant harm?

Simon Rowbotham

Word Count (inc. footnotes):

2979

INTRODUCTION

We are concerned with whether the courts interpretation of the second limb of the so-called threshold criteria is likely to suffer significant harm provides appropriate protection to children. Here, appropriateness hinges on balancing two profound issues highlighted by Baroness Hale in Re S-B (Children)1: on the one hand, children need to be protected from harm; but on the other hand, both they and their families need to be protected from the injustice and potential damage to their whole futures done by removing children from a parent who is not, in fact, responsible for causing them any harm at all. Where Re H and R (Child Sexual Abuse: Standard of Proof)2 struck this balance for the first element of the second limb likely significant harm under section 31(2)(a) of the Children Act 1989 is now generally accepted. 3 The same cannot be said for the second element of attributability under section 31(2)(b)(i), especially in the uncertain perpetrator cases following the infamous paragraph 49 of Re S-B and the conflicting decisions in Re K (Care Proceedings: Fact Finding)4 and Re F (Interim Care Order).5 Indeed, a rift can be identified in the differing approaches of the upper and lower courts; although the Supreme Courts approach may not appear to protect children as appropriately as the courts of first-instance would like, their Lordships may have allowed for as much protection as the 1989 Act permits.

1 2

[2009] UKSC 17, [2010] 1 FLR 1161 at [2]. [1996] 1 FLR 80. 3 Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35, [2008] 2 FLR 141 at [54]; and Cathy Cobley and Nigel Lowe, Interpreting the Threshold Criteria under section 31(2) of the Children Act 1989 [2009] MLR 463 at p.486. 4 [2010] EWHC 3342 (Fam), [2011] 2 FLR 199. 5 [2011] EWCA Civ 258, [2011] 2 FLR 856.

THE PROBLEM: STRIKING THE BALANCE OF PROTECTION

The second limb of section 31(2) provides the minimum criteria for allowing non-voluntary State intervention in cases of unharmed children. When interpreting the threshold criteria, the courts aim to strike a balance in protecting children from two harms: [t]he child may suffer harm if left in a situation of risk with his parents. The child may also suffer harm if removed from parental care where...the parents present no risk.6 The courts must consider this balance in light of the European Convention on Human Rights. The State is under a duty under Articles 2 and 3 (the rights to life and not to be subject to torture or inhuman degrading treatment respectively) to take positive action to protect children from abuse.7 This duty must be balanced with the need to protect family life under Article 8 from arbitrary State interference and the risk a judge might make a wrong decision.8 Article 8(2) allows for proportionate derogation where necessary and the threshold test aims to screen out those cases where the family should not be put at any risk of intervention.9 Whether children are protected appropriately depends on where we strike this balance of protection.

There are two elements to establish threshold: likelihood of harm under subsection (a) and attributability under subsection (b)(i). To establish a likelihood of harm, it is generally accepted that the appropriate balancing of harms has been struck by requiring allegations on which likelihood is founded to be proven on the balance of probabilities. It has been clear since Re H that the phrase is satisfied in section 31(2)(a) is the language of proof, not suspicion. 10 Once
6 7

Lancashire County Council v B [2000] 1 FLR 583 at p.589 per Lord Nicholls. Z v UK (Application No.29392/95) (2002) 34 EHRR 3, [2001] 2 FLR 612. 8 Re B at [56], [77]-[78] per Baroness Hale. 9 Re S-B at [21] per Baroness Hale. 10 Re H at pp.99-101 per Lord Nicholls.

those allegations are proven there is no need for that likelihood to be more likely than not: a real possibility is sufficient.11 These principles have not been questioned since, only approved and applied.12 Surely this approach protects children appropriately: the threshold would provide no protection at all if it could be established on the basis of unsubstantiated suspicion, allowing arbitrary intervention and weighing too heavily in favour of protection of the child, not their family.13

Turning to section 31(2)(b)(i), the inference from Re H is that attribution must also be proven on a balance of probabilities. In reality, once likely harm is established attributability will often have been proven. Sometimes, however, attribution can only be narrowed to a pool of potential perpetrators (the uncertain perpetrator cases). In uncertain perpetrator cases involving actual harm, attributability was interpreted in Lancashire County Council v B14 as being fulfilled even though the identity of the particular carer who was the perpetrator is not known.15 That principle would justify the earlier result in CB and JB (Care Proceedings: Guidelines)16: that where a harmed child (C1) has an unharmed sibling (C2) living with an intact pool of perpetrators, if threshold is met for C1 it can establish likelihood of harm to C2. This is because attribution under s.31(2)(b)(i) is not to a person but the care given by all the carers.17 As Andrew Bainham comments, the real possibility of harm to the second child does have a factual foundation; in an

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Re B at p.95 per Lord Nicholls. Re S-B at [8] per Baroness Hale; see academic support e.g. Cobley and Lowe, n.3 above, p.468; c.f. M. Hayes, Reconciling Protection of Children with Justice for Parents in Cases of Alleged Child Abuse [1997] Legal Studies 1 at pp.2-3. 13 Re B at [54] per Baroness Hale. 14 n.6 above, at p.589. 15 Re O and N; Re B [2003] UKHL 18, [2003] 1 FLR 1169 at [19] per Lord Nicholls, affirming Lancashire. 16 [1998] 2 FLR 211. 17 Lancashire at p.589 per Lord Nicholls.

intact pool, the actual perpetrator remains and there is a certainty of attribution to that unit of carers such that the threshold should be crossed.18

In Lancashire, Lord Nicholls acknowledged that parents who may be wholly innocent...will face the possibility of losing their child but was satisfied that the factor which seems to outweigh all others is the prospect that an unidentified, and unidentifiable, carer may inflict further injury on a child.19 Theoretically, the same level of protection is offered to the child as where there is an identified perpetrator; the corresponding level of protection to the family is not diminished as the same level of certainty of risk remains. This seems an appropriate level of protection; if it weighs more on the side of protecting the child than the family, it does so no more than is necessary. The suggestion by Ian Goldrein QC, that the decision in CB and JB must have survived Re S-B, is preferable to Alison Griefs doubts.20 Where the balance of appropriate protection lies in cases where the pool of perpetrators is broken, however, proves far more difficult to resolve.

APPROPRIATE PROTECTION FOR THE UNCERTAIN PERPETRATOR (i) Paragraph 49 The Need for a Proven Perpetrator

In a paradigm uncertain perpetrator case, a child (C1) has been harmed by a carer in a pool of potential perpetrators (the pool) consisting of the mother (M1) and father (F1); the perpetrator is unidentifiable on a balance of probabilities but there is a real possibility that it was M1 of F1.21 The non-perpetrator is not accused of failure to protect. M1 and F1 separate; F1 (for
18 19

Andrew Bainham, Uncertain Perpetrators and Siblings at Risk [2011] CLJ 508 at p.510. Lancashire at pp.589-590. 20 Ian Goldrein QC, There is only so much juice in an orange: Re SB [2010] Family Law 196 at pp.198-199; c.f. Alison Grief, Re SB: Oranges Are Not The Only Fruit [2010] Family Law 403 at p.405. 21 Re S-B at [43].

example) starts a relationship with M2 and they have a child (C2). Proceedings regarding C2 are brought against F1 and M2 relying solely on the proceedings around C1. Taking F1 alone, he is only a possible perpetrator and, as Baroness Hale stated in Re S-B, that is insufficient:

The judge found the threshold crossed in relation to William on the basis that there was a real possibility that the mother had injured Jason. That, as already explained, is not a permissible approach to a finding of likelihood of future harm...a prediction of future harm has to be based on findings of actual fact made on the balance of probabilities.22

Her Ladyship appears to import the attributability element of harm to C1 into the likely harm element for C2, as a fact that needs to be proven to establish risk to C2. Nevertheless, the result seems clear and logical. If CB and JB survives on the basis that the intact pool creates a certainty of attributability, where that pool is broken the certainty of a risk has been replaced by the possibility of one such that neither element of the threshold criteria is met. 23 If this is the correct interpretation of paragraph 49 then it accords with the only previous case to have considered this: the Court of Appeals judgment in Lancashire County Council v B (A Minor); Re W (A Minor),24 (Re B; Re W).

In Re B; Re W, A had been harmed, the pool consisting of As mother (AM), father (AF) and babysitter (BM). BMs child (B) was still subject to the proceedings. In accordance with the later interpretation of s.31(2)(b) in Lancashire,25 attributability was assumed to extend beyond
22 23

Ibid., at [49]. Bainham, n.18 above, p.510. 24 [2000] 2 W.L.R. 346. 25 Lancashire at p.589.

the parents such that BM could be a member of the pool. Applying Re H, the Court held that BM had not been proven a perpetrator and therefore the facts necessary to establish a risk of future harm had not been established. The fact that the pool was broken evidently influenced the Court:

Any notion that A.M., A.F. and B.M. should for the future be regarded as a group can be dismissed...B.M. will not in future participate in any way in A.'s care, and A.M. and A.F. will not participate in any way in B.'s care.26 [emphasis added]

Attribution had not been proved regarding BM; she was merely a possible perpetrator and that, according to Re B; Re W and now Re S-B is insufficient to establish the threshold criteria for an unharmed child. We will label this the proven perpetrator approach.

The Court of Appeal has now endorsed Re S-B. In Re F,27 C1 had been harmed and M1 and F1 were in the pool of two. They separated and F1 became engaged to M2. M2 became pregnant with C2 and the local authority sought an interim care order against F1 and M2 relying solely on the findings around C1. On appeal, the authority conceded that paragraph 49 required proof that F1 was a perpetrator but sought permission to appeal to the Supreme Court. Wilson LJ (Rimer and Pill LJJ concurring) refused on the ground that paragraph 49 is both clear and necessary: the requirement of proven factual foundation is a bulwark against the states removal of a child from his family.28 Paragraph 49 was endorsed unhesitatingly: the strict status of that passage as obiter carried very little significance in circumstances in which it is all of a piece with a number

26 27

Re B; Re W at p.353 per Robert Walker L.J. n.5 above. 28 Re F at [15].

of earlier, yet also recent, decisions of the House of Lords.29 Despite its obiter status made in the absence of submissions30 the proven perpetrator approach in Re S-B should be taken as the law

(ii) Inappropriate Protection from an Unrealistic Threshold

Several arguments indicate that the proven perpetrator approach does not protect children appropriately and in Re F examples were considered of the nonsensical results it generates.31 A revealing exercise would be to predict the position in Lancashire of an unharmed sibling (C) of the harmed child (A). Cs parents AM and AF were in the pool of three with BM; threshold had been satisfied in relation to A. The pool, however, was broken; AM and AF would not share care with BM again. Applying the proven perpetrator approach, the mere possibility that the perpetrator remained would mean attribution was no longer satisfied and threshold would not have been met for C despite As removal from the same two parents. One wonders how the risk that parents may be wholly innocent can be outweighed by the prospect of harm where parents stay together but not where they separate.32 From the parents perspective, their protection would not be diminished. Indeed, the proven perpetrator approach positively enhances their protection through what is effectively a defence of separation; parents in a pool could now be advised to prove they have irretrievably separated, breaking the pool and causing the authoritys application to fail. From the childs perspective, however, the fact of a possibility rather than the certainty of harm does not just leave them inappropriately protected but positively

29 30

Ibid., at [14] per Wilson LJ. Threshold was not in issue; counsels skeleton arguments assumed it was met and oral submissions were not called for (anecdotal from Susan Grocott Q.C., counsel for the Local Authority). 31 Re F at [15]; arguments of Clive Heaton QC and Bansa Singh Hayer. 32 Lancashire at pp.589-590 per Lord Nicholls.

unprotected. Perhaps this is, as Cathy Cobley and Nigel Lowe suggest, the inevitable price of having a threshold.33

Bainham suggests there are sound policy reasons why the threshold should not be crossed in these circumstances.34 His argument, however, is founded on the premise that these cases are comparatively unusual and that in the great majority of cases a perpetrator can be identified.35 These cases are, in fact, frequent enough for several local authorities to be considering appeals on this point;36 without a need to strain to identify a perpetrator, such cases may increase as overcautious judges decline to go further than identifying a pool. 37 Should social services take the risk and not bring proceedings until harm occurs? Current resources do not lend themselves to pointless applications. Where cases are brought, some judges are unhappy in declining to advance to the welfare stage. During Re F, His Honour Judge Barnett, Designated Family Judge for Chester, declined to find the threshold established but stated at paragraph 42:

I cannot leave this topic without expressing my concern that the route of pure logic may...lead to child protection being compromised. Further, although it may not be for a first instance judge sitting in the county court to make general observations...Can it really have been the intention of Parliament to curtail the possibility of statutory intervention (subject always to the control of the court)...where only a matter of months previously, but in previous proceedings, [a] childs mother had been found to be a member of a pool of perpetrators responsible for the serious non-accidental
33 34

Cobley and Lowe, n.3 above, p.475. Bainham, n.18 above, p.510. 35 Ibid., pp.510-511. 36 Anecdotal. 37 Re S-B at [34]-[35].

injury to another child then within her care? I venture to suggest that the average member of the public would be concerned to think that were the case.38

What the public think is not the law; but what HHJ Barnett is saying should echo up the bench: that there are cases where the proven perpetrator approach does not protect children appropriately from the likelihood of harm.

RE K: A WAY FORWARD?

In Re K,39 Hedley J. held that the finding that F1 was in a pool of perpetrators for the death of C1 was a sufficient factual basis to satisfy the threshold for C2: I have understood...[paragraph 49]...as simply a reminder that in care cases the threshold must be established by proof of facts.40 There was no need to go the final step and decide as between the two who killed C1. Hedley J. reasoned that if the allegations relied on are such that the threshold would have been established [emphasis added] the court should advance to the risk assessment, the Article 8 rights of the possible perpetrator still being protected at the welfare stage. 41 It is difficult to see how Hedley J. justified his reasoning; Baroness Hale expressly stated that the mere possibility an individual was a perpetrator is insufficient in establishing the threshold. The idea that a judge could advance to the welfare stage without proven allegations is unrealistic. This High Court case was surely overruled by Re F and must be forgotten.

CONCLUSION
38 39

Cheshire East Borough Council v F and others (16th July 2010) unreported at [42]. n.4 above. 40 Re K at [20] and [26]. 41 Ibid., at [21].

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While the courts protect the majority of children appropriately from the likelihood of future significant harm, this is not so for those in the uncertain perpetrator cases. A division is evident between the law as determined by the Supreme Court and the law first-instance judges want to apply; perhaps Re K represents an attempt to fudge the matter to achieve the result HHJ Barnett calls for. On pulling back the curtain of confusion drawn by paragraph 49, however, Baroness Hale appears unchallenged on the law. The difficulty, then, may not lie in interpreting the threshold but in the 1989 Act itself. While the Norgrove Report has found no need for amendments in public children law, perhaps these admittedly complex uncertain perpetrator cases were overlooked.42 One amendment that might strike a better balance in protecting the child would be to lower the attribution element of the threshold for making a supervision order, allowing cases of a mere possible perpetrator to satisfy the test.43 Such reform would require the Supreme Court to listen to the lower benches; perhaps when this matter next comes before the Supreme Court their Lordships would do as well to consider HHJ Barnetts paragraph 42 as much as Baroness Hales paragraph 49.

42 43

Family Justice Review, Final Report (MoJ, November 2011) at para.3.13. Hayes, n.12 above, pp.19-21; c.f. Cobley and Lowe, n.3 above, p.475.

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