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Council wins appeal over whether threshold for intervention in child care case was satisfied

A local authority has won an appeal over a judge’s ruling that her findings of fact in a child care case did not satisfy the threshold for intervention and that the proceedings should be dismissed.

The appeal in B-T (A Child: Threshold Conditions) [2020] EWCA Civ 697 arose from care proceedings about a boy, T, who was born in July 2019.

Lord Justice Peter Jackson, who gave the judgment of the Court of Appeal, said that at the age of around two weeks T had been taken to hospital, where he was found to have bruising to his face and was admitted for tests.

Four days later, on 12 August, there was an incident when the father, who is autistic and has adult ADHD, was seen to be mishandling the baby in a hospital cubicle.

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The local authority obtained an emergency protection order and T was placed in foster care in mid-August. An application for a care order was issued and on 20 August an interim care order was made.

After proceedings “that became unfortunately protracted”, a seven day remote final hearing took place in April/May 2020 before Ms Clare Ambrose, sitting as a Deputy High Court Judge.

The local authority's case was that at the relevant date T was suffering and was at risk of suffering physical harm, emotional harm and neglect, the most significant allegation relating to the incident in the hospital.

In a judgment given on 1 May, Judge Ambrose made detailed findings of fact but she found that those facts did not satisfy the threshold for intervention under s.31 Children Act 1989 (CA 1989) and she dismissed the proceedings.

In a separate judgment given on 7 May, she refused the local authority's application for a holding interim care order under s.40 CA 1989, with the consequence that T would have had to be returned immediately to his parents unless they agreed to him being accommodated for a transitional period. She also refused the local authority's application for permission to appeal and for a stay, with the consequence that an urgent application for a stay was made.

That urgent application was granted that evening by Lady Justice King and on 18 May Lord Justice Peter Jackson gave permission to appeal.

Following a remote hearing, the Court of Appeal allowed the council’s appeal.

Lord Justice Peter Jackson said: “I acknowledge the care with which the judge approached her task and firmly remind myself that we are not entitled to depart from her evaluations unless they were not open to her. I am nevertheless amply satisfied that her decision to dismiss the proceedings was wrong.”

This was for the following reasons:

  • There are three elements to the harm required by the threshold condition in s.31(2) Children Act 1989: it must be actual or likely; it must be significant; and it must be due to parenting that is not reasonable. “In my judgement, the judge's specific findings about the flipping incident at hospital and the previous incident at home, and the unexplained accidental facial bruising in such a young baby, in each case taken in the context of her general findings about the parents' personal circumstances and the home in which they had been living, lead inexorably to the conclusion that all three of these elements were satisfied.”
  • The father's “bizarre” handling of a baby of T's age “plainly gave rise to a real possibility of future harm that could not sensibly be ignored; the harm that might result was not merely significant but serious; the treatment of the child was undoubtedly not what was reasonable for any parent, however inexperienced. In my view the incident in hospital alone was sufficient to cross the threshold, and the judge should have so found.”
  • Instead of looking at the whole picture that her findings painted, the judge treated each individual finding in a compartmentalised manner. “Threshold allegations are separated out for forensic purposes, but there is only one threshold and the court must measure the effect of all of its findings against it. To take a crude example, the threshold may not be crossed in a case of a parent who has weak parenting skills or in the case of a parent who is an alcoholic, but it may well be crossed where the same parent has both characteristics. Each piece of information affects the calculation of risk. This is quite different to the position of findings of primary fact, where unproven facts cannot be aggregated to form proven facts.”
  • Here, the judge had found that T's parents were young and inexperienced, that they had been living in conditions that were entirely unsuitable for a new-born baby, that he had already suffered some harm in the form of worrying and unexplained bruising, and that his father had handled him both at home and in hospital in a manner that was obviously unsafe, despite being warned about it. “She found that each of these matters individually fell below the threshold. What she did not do was to stand back and look at the whole picture.”
  • The exact nature of the judge's conclusions regarding the “flipping incident” [where T was flipped in the air through 360 degrees three times] and the bruising were not clear. “Bruising, even accidental, in a new-born baby has a quite different significance to bruising in a mobile child, and the judge was bound to consider the likelihood of repetition where no satisfactory explanation had been given.”
  • The judge correctly directed herself as to the relevant date for her assessment, 12 August, but she did not address what T's situation would have been had protective proceedings not been taken.
  • This inquiry into the relatively simple issues that were ultimately before the court became over-legalised and overcomplicated. “While the judge was strictly correct to say at paragraph 121 that the test for state intervention is not that a parent's conduct is alarming to an observer, that observation does not take one very far where the witness, a specialist nurse, was so shaken by what she had seen that she burst into tears, and where the doctors and social workers were united in their level of concern for T.”

The outcome of the appeal was that the proceedings were revived on the basis of substituted threshold findings set out by the Court of Appeal and the interim care order that was previously in force was restored.

The matter was remitted to the Family Court for a welfare decision and an early case management hearing will take place before the Designated Family Judge on 4 June.

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