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Child Protection Notes

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This is an extract of our Child Protection document, which we sell as part of our Family Law Notes collection written by the top tier of Oxford students.

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1. Prevention

2. Investigation and Emergencies
- CA 1989, ss 43-48
- WSCC v M, F, W, X, Y and Z [2010] EWHC 1914 (Fam)
- Mother supposedly making up symptoms for her own illness and children's illness, paediatrician advised that children should be taken away, court instigated interim care orders and took children into foster care without telling mother or father
- Was held that children could be returned to the father in the absence of the mother, but ultimately mother and father agreed to a safeguarding plan which would mean the withdrawal of social services and for them to be replaced by health and school authorities
- The application was granted because it engaged s1(1) CA1989 i.e. because it was relating to the child's upbringing, the welfare principle applied, and r1.1. civil procedures rules 1998 (these Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly [and at proportionate cost])
- Number of reasons for this finding: o the present signs were that the family could function alone o intervention against C's wishes was unlikely to be fruitful, given the ages of the eldest three o F had worked impressively with professionals to whose views he was profoundly opposed o the parents could be trusted to seek help if it was needed o it was expected that the family's recent experiences would make them cautious in their approach to reporting illnesses and that F would realise that he was central to C's health care o and it would not be healthy for C's development for them to be members of a family dependent on professional support
- although some risks remained, they could be effectively managed through the safeguarding plan
- whilst no criticism was intended of the local authority's or the judge's actions, it was important to emphasise that the local authority and the court owed separate and distinct duties to safeguard children's welfare by applying their own distinctive expertise. Further, a local authority had no duty slavishly to follow medical advice. The social worker, not the doctor, was the child care expert

3. Compulsory Intervention (Care and Supervision Orders) (a) Threshold Stage

- The test for whether a child is suffering significant harm is assessed on a balance of probabilities Is the child's situation within definition of "harm"?
- Children Act 1989, s 31 [note the s 31(9) definition of "harm"] - care and supervision orders
- Re M (A Minor) (Care Orders: Threshold Conditions) [1994] 3 All ER 298
- A care order is preferable to a residence order in cases of children who are "suffering or likely to suffer" significant harm as under s31(2) CA1989 on the date at which the local authority initiates protective arrangements

- Basically the "threshold conditions" are that the child was suffering or was likely to suffer significant harm. The importance of this judgment was that it held that the date at which the court must consider when determining this threshold condition was the date at which the local authority initiated procedure for protection under the act
- In this case the father of M (child) had murdered M's mother and under emergency proceedings taken by local authorities, M was put into foster care while his siblings were made the subject of a residence order in favour of W, the mother's maternal cousin
- After F was convicted and recommended for deportation, W applied for a residence order for M. F supported the making of a care order which was granted only on the basis that it was temporary, and with a view for future adoption outside the family
- On appeal to CA, W won out so M remained with her, and did so until the appeal in HL where it was decided that CA did have jurisdiction to make a care order, (overruling Oldham MBC v E), that it would be wrong to disturb the current arrangements, but the care order should be restored (rather than residence order) so that the local authority could continue to monitor the child (which they could not do in a residence order), but the most important consideration (I think) was determining the date at which the court had to consider the threshold test in the context of
- the date of assessing suffering was the date at which the local authority initiated procedure for protection under the act
- Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] 1 All ER 1
- Here there were 4 children by 2 different fathers and one of the first 2 children alleged she had been subject to sexual abuse by the second father for a number of years
- The father was ultimately acquitted, but local authority sought care orders in respect of the other three daughters, solely because of the alleged sexual abuse
- It was held in all the courts that this order was not valid, providing interpretation of the phrase "likely" in 31(2).
- "likely" means "real possibility", and it must be shown on the balance of probabilities that the harm is likely
- the burden of convincing the court that the likelihood of harm was satisfactory enough to make an order lay on the individual applying for the care order
- the standard of proof was that the court must be satisfied by the evidence (not suspicion) that the occurrence of the harm/ event was more likely than not o also said that the more serious the allegation of abuse, the less likely it was to have occurred, and the stronger the evidence would have to be to prove it (this was fortunately overruled in Re B)
- threshold considerations in 31(1) and 31(2) were on balance of probabilities and should have language of proof and evidence, not suspicion - the range of facts the court might contemplate were infinite and because in the instant case the only relevant fact was whether the daughter had been abused by the father in the past and this sole fact had not been proven on the balance of probabilities, there was no basis for issuing orders concluding that there was a likelihood of harm to the other children
- established a flexible test of likelihood, apparently?
- Re B [2008] UKHL 35 (burden of proof) (discussed: Keating (2009) 21 CFLQ 230)
- Similar to Re H in the father was accused of sexually abusing step-daughter. At a fact-finding hearing on this issue, the judge had been unable to conclude that there was no real possibility of the abuse having happened, so had to conclude that there was a "real possibility" that the father had abused the step-daughter
- The question was therefore whether the threshold test in 31(2) was satisfied if it has been found that there was a "real possibility" that the abuse had been taken place, or whether the required standard of proof was the "balance of probabilities"
- Held that the requisite standard of proof was the balance of probabilities.
- Most importantly, went back on Lord Nicholl's comment in Re H that the more serious the allegation, the more solid the evidence/ proof had to be to be satisfied that it had happened. "there was no logical or necessary connection between seriousness and probability"

- Also, "To allow the courts to make decisions about the allocation of parental responsibility for children on the basis of unproven allegations and unsubstantiated suspicions would be to deny them their essential role in protecting both children and their families from the intervention of the state, however well intentioned that intervention might be." i.e. can't have unproven allegations as part of reasoning for making orders (which is what the mother and children's guardian had tried to argue), because this would represent a great state intervention in family life which was unjustified
- The threshold is there to protect both children and parents from unjustified intervention in their lives. The threshold criteria are there to reinforce the welfare principle and remind courts that children are "normally" best brought up by their parents, and only where there is a real danger will it be in favour of the child's welfare for a care order to be made
- Re B (A Child) [2013] UKSC 33
- D had been in foster care her whole life but maintained supervised contact with her biological parents. Both parents had a number of things which posed threats to the safety of the child under s31(1)(a) e.g. mother had a host of mental disorders and a history of dishonesty, father had a history of drugs and dishonesty
- Local authority proposed putting the girl up for adoption and parents appealed against this. Court found that the threshold criteria had been crossed although "perhaps not in the most extreme way". There were serious concerns about the ability of the parents to promote D's welfare and neither had the capacity to engage with professionals in such a way that D would be safe from emotional or physical harm
- This was upheld by CA. case raised issues on how the law distinguishes between emotional and physical harm and where each warrants state intervention and the "natural tendency" of children to grow up and behave like their parents; the scope of the court's powers to remove children from birth families; and the function of the appellate court
- Appeal made to HL - dismissed o When making a care order court had to be convinced of significant harm and while "harm" was defined (s31(9)), "significant" was not and the court should endeavour not to define or explain the word - it was to be fact-specific and manipulated to apply in the most appropriate way on a case by case basis o There must be a deficiency in parental care, not in parental character, though character did remain relevant to the extent that it might affect the quality of parenting o Further difficulty in understanding "significant harm" came from understanding "likelihood", though it should be understood as a "real possibility" of harm being caused - a comparatively low standard
- Appellate court should only be used as a means of secondary review i.e. there could be no fresh argument
- Furthermore, adoption could only occur if parents were unwilling, or were deemed by judicial process to be unable, to discharge their responsibilities towards the child. Adoption of a child against her parents' wishes was a last resort and potentially raised issues under art 8 o "There were stringent requirements of the proportionality doctrine where family ties had to be broken to allow adoption to take place. In the instant case, that threshold was crossed
# Lady Hale dissenting: it had not been sufficiently demonstrated that it was necessary to bring the relationship between D and her parents to an end. Hale considered that the harm that was feared to be subtle, long term and may never happen and in the absence of a fresh in depth enquiry, Hale considered that adoption was not proportionate to the risks identified
- Re J [2013] UKSC 9 (here: "likely to suffer"; also of broader significance)
- Woman had in the past either caused non-accidental injuries which had led to the death of her first child, or had helped cover up that someone else had done
- Long story short, she had a child with another man and the issue for the court was whether a possibility that a parent caring for a child may have harmed another child in the past was sufficient to establish that the child now being cared for was "likely to suffer" harm in the future as in s31(2)
- I think it was originally held that because the standard of proof is the balance of probabilities, this had not been satisfied (i.e. it hadn't been proven on balance of probabilities that mother had harmed previous child) so therefore a care order wasn't possible because the threshold in s31(2) hadn't been passed

- Were they saying that if the mother had harmed the previous child, the immediate child would fall under s31(2), but if the mother had only covered up that someone else had harmed the chil, the child wouldn't fall under s31(2)???? How is that right??? If she covered it up before she's a shit mum and obiously isn't opposed to putting the child at risk
- Basically HL upheld the decision that they couldn't make an order. That there was a "real possibility" harm might've been caused by that parent in the past was not a sufficient justification for considering that there was a "real possibility" they might cause harm in the future
- S-B could be relied upon in that the proposition that a real possibility that a parent had harmed a child in the past was not, by itself, sufficient to establish the likelihood that she would cause to another in the future - prediction was only possible where the facts had been proven
- J had been looking after the children and her new baby for some time without any cause for concern. In those circumstances, it would be unfair to the whole family for the proceedings to continue. If the local authority wished to make a case that any of the children was likely to suffer significant harm in the future, it would have to bring new proceedings
- Although the majority had been correct to dismiss the appeal, it was illogical of them to suggest that a parent's consignment to a pool of possible perpetrators could, if weighed together with other relevant facts, figure as part of the requisite factual foundation
- Future speculative harm
- You can only predict that someone is at risk of harm
- Is it enough to be in the pool of possible people who had perpetrated the harm for you to be considered a risk to children in the future? To help contextualise some actual proven harm to a child in the case at hand
- Sumption and Wilson take binary view i.e. primary facts are primary facts. They think that if something hasn't been proven on balance of probabilities, it cannot be considered
- Lord Hope said that background issues are still relevant even if not proven to be established proven facts i.e. it's still a relevant consideration (basically saying suspicion can push us over the threshold, but only if we do already have some kinds of proven facts)
- There is a really important split in this case
- Important to compare and contrast with Lancashire
- Re LK (Children) [2015] EWCA Civ 830
- Child (R) has bruises at school and an investigation had been opened. It was found that parents had definitely inflicted two sets of bruises as a means of corporal punishment and that the parents had lied about this. The reporter also found that the parents had admitted punishing R by making him stand in a corner for over 2 hours. There were a number of other bruises and injuries, though the recorder declined to find that these had been inflicted by the parent, though the paediatrician had "suspicions" that these injuries had been inflicted
- He held that the threshold was not crossed in relation to R's 16-month-old brother and that he was not at risk in the parents' care because while R was a "very disturbed child with extreme behaviour", M was different and had not suffered any harm so far o How can they even justify it by saying "so far"????? That's such gross terminology
- On appeal, this was changed. It was held that in light of the findings that R had been beaten with an implement, slapped to leave bruising and punished by being made to stand in a corner, it was wrong to conclude that M had no significant risk of harm
- The fact indicated that if the parents were stressed or one of the children was challenging, the parents could harm their child. "likely to suffer" significant harm meant there was a real possibility "that cannot sensibly be ignored having regard to the gravity of the feared harm (Re H)"
- The threshold was comparatively low and was satisfied on the facts found by the recorder
- That the recorder had declined to attribute some of the other injuries to the parents had been wrong. While of course anyone may accept that some injuries may be accidental, in light of the facts that had been definitively proven, the recorder should have paid proper regard to these facts and been more reasonable. That deficiency in his approach was sufficient to render his decision in relation to the balance of the local authority's allegations unsafe. The recorder had also failed to consider the issues of causation the paediatrician had raised i.e. causation was obviously significant, but the recorder had failed to consider causation appropriately

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