Abstract
In England and Wales, public law proceedings, sometimes also known as care proceedings, usually involve an application by a local authority to take a child or children temporarily or permanently into its care. To do so, threshold conditions have to be met. Pursuant to the Children Act 1989, s 31(2), the court has to be satisfied that the child was suffering, or was likely to suffer, ‘significant harm’ which was attributable to the parent(s). If so satisfied, it has to be better for the child to make an order, than to make no order, and it has to be in the child’s best interests.
Family judges deal with increasingly difficult child cases and are much assisted in their decision-making process by professionals from other disciplines: medical, wider mental health and social work among others. The courts pay particular attention to the valuable contribution from paediatricians and child psychiatrists as well as others, but it is important to remember that the decision is that of the judge and not of the professional expert.
Public Law Proceedings
In England and Wales, public law proceedings, sometimes also known as care proceedings, usually involve an application by a local authority to take a child or children temporarily or permanently into its care. To do so, threshold conditions have to be met. Pursuant to the Children Act 1989, s 31(2), the court has to be satisfied that the child was suffering, or was likely to suffer, ‘significant harm’ which was attributable to the parent(s). If so satisfied, it has to be better for the child to make an order, than to make no order, and it has to be in the child’s best interests.
Re L (A Child) (Care: Threshold Criteria) [2007] 1 FLR 2050 (Fam Div) illustrates how the threshold criteria were applied in a case involving intellectually disabled parents (Box 9.1). In such cases, the critical issue is ‘significant harm’. In Buckinghamshire CC v CB (Family Court, unreported, 23 July 2015), it was held that continual care by the intellectually disabled mother would be harmful to, and the level of support required by the mother to care for, her child, who had a global developmental delay, would have been so extreme as to be detrimental to his welfare.
Box 9.1 Application of the ‘Threshold Criteria’ to Parenting by Intellectually Disabled Parents
The intellectually disabled parents received support from social services for a number of years. The family came to their attention when the elder child was sexually assaulted by an offender whom the father had invited to stay at the family home. Subsequently, there were allegations of domestic violence inflicted on the mother by the father and an allegation that the father had been beating the children with a belt. So the children were removed from the family home under an emergency protection order. There was also evidence of worrying instances of lack of boundaries between parents and children; bad language and bad behaviour of the children seemed to go unchecked by the father; and the children were encouraged to kick their mother. In quashing the order, the court concluded that, although there was evidence that the children had suffered harm, and were likely to suffer harm in the future, the threshold criterion of ‘significant harm’ had not been satisfied. The court found that: ‘Significant harm is fact specific and must retain the breadth of meaning that human fallibility may require of it … However, it is clear that it must be something unusual; at least something more than the commonplace human failure or inadequacy.’ It therefore followed that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It was also observed that it is not the provenance of the state to spare children all the consequences of defective parenting.
Commenting on Re L (A Child) (Care: Threshold Criteria), Dimopoulos (2009) has expressed concern ‘that the judicial reasoning focused selectively on specific facts of the case in relation to the harm the children were suffering, rather than addressing the parents’ disability’ and has submitted that ‘the element of disability requires a different approach from the court’. Such an approach, he submits, is suggested by the case of Kutzner v Germany (46544/99) [2003] 1 FCR 249 (ECHR). Therefore, the first step should be to provide intensive and individually tailored support to intellectually disabled parents and if this fails the second step is for social care to take a more active role in the children’s upbringing and care in order to avoid compulsory intervention. Only where harm to their welfare is so great that it disturbs the balance between the competing interests of the parents exercising their parental care, free of interferences, and harm to the children’s welfare should judicial intervention occur with the possibility of removal from parental care. Such an approach would uphold the right to respect for the family life of intellectually disabled parents. Likewise, Booth et al. (2004) have concluded that:
The application of the threshold criteria and the provision of supports to parents are intimately connected, vitally so in the case of parents with learning difficulties whose problems in parenting can be traced back to their disability … adequate supports protect against parenting breakdown … the additional difficulties parents with learning difficulties encounter in providing good-enough care … can be offset by compensatory services. Against this background, the failure to deliver support sets the family up to fail the threshold criteria.
There is the further complication that the standard for proving ‘likely significant harm’ is a lesser standard than the ‘balance of probabilities’ standard that is necessary for proving actual significant harm. However, the mere satisfaction of the threshold criteria will not necessitate or warrant separation of child and parents; it is a gateway into the exercise of judicial discretion. Sir James Munby P, in Re D (A Child (No. 3) [2016] Fam Law 272, endorsed some key points of principle established in Re G and A (Care Order: Freeing Order: Parents with a Learning Disability) [2006] NI Fam 8 for dealing with cases involving parents with learning disability. Of crucial importance is ‘parenting with support’. Sir James Munby P stated that this concept imposes a broad obligation on the local authority to provide such support as will enable the child to remain with their parents. The test is then whether the parents, if provided with all the necessary support and services, would be able to provide the child with adequate care and parenting in a setting which promotes the child’s welfare and does not cause harm.
In Ireland, these are simply called childcare or secure care proceedings. They are initiated by the Child and Family Agency (CFA). The threshold question is whether: (1) the child has been, or is being, assaulted, ill-treated, neglected or sexually abused; or (2) the child’s health development or welfare has been or is being avoidably impaired or neglected; or (c) the child‘s health, development or welfare is likely to be avoidably impaired or neglected and the child requires care or protection which (s)he is unlikely to receive unless a care order is made (CCA 1991, s 18). A supervision order may be considered appropriate (CCA 1991, s 19).
An application may also be made by the CFA for a ‘special care order’ for the detention of a child over the age of 11 years (1) where there is reasonable cause to believe that the behaviour of the child poses a real and substantial risk of harm to life, health, safety, development or welfare, (2) having regard to that behaviour and risk of harm, there is reasonable cause to believe that ordinary care provision and treatment and mental health services by reference to the MHA 2001 will not adequately address the behaviour and risk of harm and care requirements, and (3) there is reasonable cause to believe that the child requires special care to address the behaviour and risk and care needs which it cannot provide without an order of the High Court (CCA 1991, s 23F). A family welfare conference assists in deciding if a child is in need of special care and protection which they are unlikely to receive otherwise.
In all proceedings in Ireland, the court, having regard to the rights and duties of parents, is required to regard the child’s welfare as the first and paramount consideration and insofar as is practicable, give due consideration, having regard to their age and understanding, to the wishes of the child (CCA 1991, s 24). The proceedings are heard in camera.
There is also a wardship jurisdiction in Ireland in respect of minors (Courts (Supplemental Provisions) Act 1961, s 9), which is often exercised in respect of children with significant mental health difficulties (e.g. anorexia nervosa).
Related posts:
Chapter 3 – Training, Development and the Maintenance of Expertise
Chapter 4 – Business Matters
Chapter 10 – Reports in Cases Involving Capacity Issues
Chapter 11 – Reports for the First-tier Tribunal (Health, Education and Social Care Chamber) Mental Health
Chapter 12 – Reports in Immigration and Asylum Cases
Chapter 17 – Going to Court
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