Two members of the Westgate Family Team appeared in this case which, it is suggested, has legal and societal significance.

This article provides an overview of the  Judgment handed down by HHJ Thorp sitting as a Section 9 High Court Judge on 6 December 2022 as to whether the Court can find that threshold is met in relation to the risk of future harm when the child had not suffered harm but in circumstances where the parent cannot exercise Parental Responsibility.

The issue before the Court  

Whilst all the parties believed it was in K’s best interests to remain in foster care, the parties raised an issue as to whether the Court  could find that the S31 threshold is met in relation to the risk of future harm for the making of a Care Order. The Official Solicitor raised a question as to whether threshold should be met in any case in which a parent simply becomes incapacitated. All the parties agreed that threshold was not met on the specific facts before the Court.

The essential question which the Court had to answer was whether in circumstances where the mother has suddenly lost her capacity to care and is not able to provide any care for her child or make any decisions for her, is that sufficient to satisfy either of the limbs of Section 31(2) of the Children Act 1989. If threshold was not met, which Order or legal mechanism should be used to secure K’s future in foster care?

K’s circumstances

K’s circumstances were tragic; her father died when she was two and she was cared for by her mother her whole life. There was no history that suggested that the mother’s parenting was  deficient in any way or that K had suffered from harm in the mother’s care. Tragedy struck the family again in 2021 when K’s mother suffered a catastrophic brain haemorrhage leaving the mother with limited cognitive abilities and unable to care for K or exercise Parental Responsibility for her. In the early stages after the catastrophic events of November 2021, the wider family looked after K for a number of months. However, they were not able to continue to care for her and gave notice to the Local Authority of this. It was that event which triggered the issue of proceedings in the case.

The mother was assessed as not having the capacity to make decisions about her own welfare or for the welfare of K. Accordingly, the Official Solicitor was appointed to represent the mother’s interests in the Care Proceedings.

The Section 31 threshold criteria

Under section 31(2) of the Children Act 1989, the Court can only make a Care Order or Supervision Order in respect of a child if it is satisfied:-

  1. That the child concerned is suffering, or is likely to suffer, significant harm; and
  2. That the harm, or likelihood of harm, is attributable to the care given to the child, or likely to be given if the Order were not made, not being what it would be reasonable to expect a parent to give; or the child being beyond parental control

Local Authority Counsel referred to the case of Re J (Children) [2013] UKSC 9 and said the Supreme Court decision meant the Court had to be able to find that the likelihood of significant harm to K was attributable to a deficit in the parenting of the mother, as evidenced by a past parenting failure. In addition, the Local Authority asserted that the Court cannot make a finding of the future risk of significant harm if there has been no such harm in the past, or there has been no past parenting behaviour identified.

Ms Hancock (acting on behalf of the Official Solicitor for the mother) supported the submissions made by the Local Authority as did Ms Walls who represented K herself. Ms Hancock also cautioned against a decision of the Court which might involve the crossing of threshold and intervention of the state whenever a party has a significant illness which rendered them incapable of caring for a child.

The Judgment

HHJ Thorp did not accept that the effect of Re J is that a Court cannot find that there is a future risk of harm if there is no history of past risk or parenting failure. HHJ Thorp came to the view that the Supreme court in Re J did not explicitly say where past events are not relied upon then there cannot be a risk for the future. Certainly, the Supreme Court did not rule out threshold being crossed where the risk for the future to a child is obvious but based on recent events.

HHJ Thorp concluded that in a situation where the parent cannot provide any safe care for a child, where the parent cannot exercise any Parental Responsibility on a practical level, where no alternative family carers are available and where parties are agreed that a child requires accommodating because of the parent’s inability to provide care, then 31 of the Children Act will apply to protect children who are at risk of significant harm due to the inability of a parent – whether (in some cases) due to their fault, or (in other cases) due to no fault of their own. HHJ Thorp found that threshold was crossed because if there was no intervention and an Order was not made, K would not have the care from a parent which it would be reasonable to expect a parent to give. HHJ Thorp decided that it was highly likely that as a result of her mother’s incapacity (and, hence, her inability to provide the care which it would be reasonable to expect a parent to give), K would be likely to suffer significant harm in the future if an Order were not made.

In addition, the Judge concluded that a finding of parental blame was unnecessary when determining that the Section 31 threshold criteria were met.

The Judge also commented that the fact that the threshold criteria might be crossed by a parent’s inability to exercise Parental Responsibility does not automatically justify Local Authority intervention or the commencement of Care Proceedings in every case or that the Court will make a Care Order. For example, the scenario where a parent is disabled and unable to physically care for a child but is capable of exercising Parental Responsibility and arranging appropriate care through extended family or through voluntary accommodation under Section 20.

In K’s case, the severity of her mother’s injury meant she was unable to either provide care or exercise Parental Responsibility for her daughter. Blameless as K’s mother was for her predicament, the Judge concluded it is wholly proper for Section 31 of the Children Act to be used to protect K who was at risk of significant harm due to the inability of the mother to parent K, even though K’s mother’s limitations were no fault of her own.

In this case Maria Hancock was instructed for the Official Solicitor by Emma Taylor at GoodLaw Solicitors.  In the same case Louise Walls was instructed by The Guardian via Jane Elizabeth-Smith at Wannops for the Final Hearing only.

Ms Hancock would like to thank Amani Mohammed for her assistance in drafting this summary.