Today I want to talk about the law of child protection, focusing on the recent UK Supreme
Court decision in Re J (Children). Child protection law is the means by which a local authority
can remove children from their parents in order to protect those children from the harm
caused by sub-standard care. It raises some very difficult issues and is rarely out of
the news. If the state intervenes too readily, it could cause serious damage to the family
lives of the parents and the children without an adequate basis for doing so. On the other
hand, I need only mention the name of Baby Peter Connelly to point out the possible consequences
if the state fails to intervene quickly or effectively.
The criteria for a care order, which allows a local authority to take a child into foster
care without the consent of the child's parents, can be found in the Children Act
1989. One of those criteria is that the child 'is suffering or is likely to suffer significant
harm'. But unfortunately some children are suffering or likely to suffer significant
harm even if their parents or other carers provide perfect care. So in most cases that
significant harm has to be attributable (or linked) to the care (or the likely care) 'not
being what it would be reasonable to expect a parent to give' the child. In other words,
the relevant care must fall short of an acceptable standard, whether deliberately or accidentally.
Those apparently straightforward words, forming part of the 'threshold' for state intervention
after which the child's best interests become paramount, had been considered numerous times
by the House of Lords and its replacement the Supreme Court even before Wednesday's
decision in Re J. In interpreting the various parts of the threshold, the highest courts
have flitted between interventionist and non-interventionist approaches.
It has been established, for example, that a likelihood of harm need only be a real possibility
of harm for the purposes of the threshold. In other words, it's not necessary to show
that the future harm is more likely to happen than not to happen. However, the House of
Lords has also said that the prediction of a real possibility of future harm must be
based on facts proven on the balance of probabilities, which is the usual standard of proof in civil
law cases. Mere suspicions that a child has been harmed in the past cannot form the basis
of a likelihood of significant harm to that child, or other children cared for by the
same people, in the future.
On the attribution question, by contrast, the courts have again been more willing to
intervene. It must be shown that there is suffering, or a likelihood of suffering, significant
harm attributable to one or more of the child's carers, based on facts relating to that child
or (in the case of likelihood) another child cared for by all the same people. But once
that's been demonstrated, it's not necessary to show which of the carers actually caused
past harm. All the suspects are put into what's known as a 'pool' of perpetrators if there's
a real possibility that they caused the harm, but the threshold is met even though the precise
cause of past harm hasn't been identified. Controversially, this means that a child could
be removed from his parents even if it's possible that the child's previous injuries
were caused by a child-minder, and that the parents themselves are innocent.
The previous cases, however, hadn't conclusively resolved a vital question. What if a parent
has previously been placed in a pool of perpetrators in relation to the harm of one child, but
has separated herself from the other people in the pool and started to look after different
children, perhaps with a new partner? Does the possibility that the parent may have been
responsible for proven harm to a child in the past provide enough of a basis to say
that the threshold is met in relation to the other children she's now looking after?
That was the issue with which the Supreme Court grappled last week.
The background facts of Re J are pretty grim even by the standards of child protection
cases. JJ and her partner SW had a child, T-L. T-L had a tragically short life. She
died of asphyxiation at the age of three weeks, and was found to have sustained many non-accidental
injuries including multiple rib fractures. JJ and SW then had a second child, S. Unsurprisingly,
S was taken into care, even though the judge dealing with his case wasn't able to decide
whether his sister T-L's injuries had been caused by their mother JJ, their father SW,
or both of them. S was in the care of both possible culprits, and the threshold was met.
That was not, however, the end of the story. JJ then separated from SW and moved from South
Wales to the north of England. About four years after T-L's death, JJ started a relationship
with DJ. JJ moved in with him and his two children from a previous relationship. She
later had another child with SW, and she and DJ lived together with the three children
as a family. When it eventually found out what had happened in South Wales, Stockton-on-Tees
Borough Council applied for a care order in respect of all three children.
The issue the Supreme Court had to decide was whether JJ's inclusion in a pool of
perpetrators in relation to T-L could itself form the basis of a likelihood of a significant
harm to the three children she was now looking after in her new relationship. The Court unanimously
said that the answer was 'no'. Lady Hale, with whom the other Justices largely agreed,
was conscious of the need for a balanced approach between intrusion and protection. But she
emphasized that, for the purposes of Article 8 of the European Convention on Human Rights,
there has to be a pressing social need before state intervention can be justified.
Lady Hale said that because of the doubt about whether SW or JJ had caused the injuries to
T-L, there was only a 'real possibility' that JJ had caused them. Her Ladyship held
that to base the likelihood of future harm to the three other children on that 'real
possibility' would be inconsistent with previous cases requiring facts on which the
likelihood of harm was based to be proven on the balance of probabilities. In her view,
it made no difference that harm had definitely been caused to T-L, or that the courts had
taken a more flexible approach to the attribution question. However, she and four other members
of the Court didn't think that JJ's consignment to a pool of perpetrators should be ignored
altogether. In their view, most clearly explained by Lord Hope, if the Council had advanced
other evidence, something it had chosen not to do in Re J, that evidence could be combined
with JJ's presence in the pool to provide sufficient facts proven on the balance of
probabilities.
Lords Wilson and Sumption went further than Lady Hale and the other members of the Court,
although not in a way that affected the result in the case. They were uncomfortable with
the suggestion that JJ's presence in the pool of perpetrators would become valuable
evidence when combined with other factors even though it couldn't be used on its own.
They therefore regarded it as something that should only invite further enquiry into the
other circumstances of the case.
Whichever view is correct, the Supreme Court did point out that few cases are so stark
and simplistic that the only evidence on which the local authority's case is based will
be a parent's inclusion in a previous pool of perpetrators. There'll almost always
be other provable facts ultimately giving rise to harm or a likelihood of harm. But
evidence can be difficult to gather in the child protection context, and the law must
surely be equipped to deal with the most extreme cases. While parents like JJ will now find
it easier to make a new start in a new relationship where they've been merely suspected of harming
children in the past, and their new partners are less vulnerable to having their children
taken away, the Supreme Court's conclusion could produce some odd results.
We've seen that S, a child being cared for by all the people in a pool of perpetrators,
could be taken into care without much difficulty following the harm to his sister. But Re J
seems to mean that if SW and JJ both formed new relationships and had children in those
relationships, the threshold couldn't be based on the harm to T-L alone in relation
to either new household, even though it's clear that at least one of SW and JJ caused
that harm to T-L.
At least the law is now clearer, and that's a positive thing in itself even if local authorities
will have to work harder in gathering evidence to protect some children. But the inherent
tension between non-intervention and protection in this area of the law will remain, and social
workers and judges will often be faced with extremely troubling decisions.