Administrative Court rejects challenge by parents over decision to make children subject to child protection plan

Mr Justice Dexter Dias concluded that the local authority’s making of each protection plan was a “proportionate measure to achieve a legitimate aim of the highest importance”.

The children were the claimants in the case.

The judge said: “The eldest child is SC and is now aged 12. He prefers to use the pronouns he/him, although the historical records may refer to him differently. SC's brother is FC, a boy aged 10. Both children live with a series of conditions and disabilities that are serious and debilitating.”

The children brought their claim through their mother and litigation friend LF, who has “grave difficulties of her own”, said the judge.

The key decision taken by the council under challenge was taken in December 2023 (the impugned decision).

In August 2023, the council made each child subject to a child protection plan (CPP). In November 2023, the council discontinued both plans. A mediation agreement between the claimants' parents and the council was agreed the following month, as relevant, in the following terms:

"By 15 December 2023, the local authority will issue a written decision regarding the decision taken on 7 August 2023 to place SC and FC on CPPs. This decision will address the following:

…

b. Whether the local authority agrees that the child protection plans issued…. [in] August 2023 were not lawful."

In its written decision the council confirmed its view that the CPPs were lawful. The decision was expressed in this way:

"[The] council do not agree that the CP plan for SC and FC was unlawful. As set out below it was based on a s47 assessment, triggered by a multi-agency strategy. Multi-agency process was followed and the decision for threshold was based on a social work assessment under s47 which substantiated the significant harm."

The claimants applied for judicial review of this decision.

The council’s case was that the CPPs were needed because it concluded after a statutory inquiry under section 47 of the Children Act 1989 that the children had suffered “significant harm” and were “likely to suffer significant harm”.

The claimants submitted that the significant harm conclusion was “irrational and unlawful”, arguing that the risk to the children arose because of the defendant's failure to provide support services.

Outlining the “complex constellation of needs” in the case, the judge said: “The mother LF has diagnoses of severe ADHD, depression, anxiety and is on the autism assessment pathway. Most significantly for these purposes, she has a diagnosis of dissociative identity disorder (DID).

“DID is a chronic post-traumatic disorder which develops in response to overwhelming trauma in early childhood. LF is a survivor of childhood abuse. Her DID disorder has led to her developing multiple "alters" or identities. She relives her past trauma viscerally, sometimes screaming, including threatening to cut the throats of the children. Sometimes she is completely paralysed and unable to care for the children. It is vital to emphasise that no one suggests any of this is LF's fault in the slightest.”

The eldest child, SC, has diagnoses including Autism Spectrum Condition (ASC), ADHD, Sensory Processing Disorder, and generalised anxiety disorder with post-traumatic features. The youngest child FC has diagnoses of ASC, ADHD, Obsessive-Compulsive Disorder (OCD), Sensory Processing Disorder and a Severe Language Disorder associated with autism.

The father, TF, is the family's breadwinner, the mother having given up work in 2020 to look after the children. “TF feels overwhelmed and is at risk of carer burn out.”

In light of the family’s complex range of needs, the parents repeatedly asked for more support to care for the children and help with FC in particular.

In an email to the council in February 2023, LF stated:

"… when I am overwhelmed I experience dissociative paralysis when I literally cannot move my body. This has happened several times while I have been in sole care of the children: on one occasion my son who has no sense of danger let himself out of the house and onto the street and I was unable to move to come and get him in".

The council’s concerns led to a section 47 investigation to enquire into whether the children were suffering significant harm or likely to suffer it.

That enquiry led to a Child Protection Conference (CPC) in August 2023 at which the challenged CPPs were made.

The issues for the Administrative Court to determine were as follows:

Ground 1

• Issue 1: whether the decision that the children were suffering or were likely to suffer significant harm was irrational;
• Issue 2: whether the making of CPPs was irrational;
• Issue 3: whether the determination of the harm category as "emotional abuse" was irrational.

Ground 2

• Issue 4: whether the making of CPPs was the least intrusive measure necessary to achieve the legitimate aim of protecting the children from significant harm;
• Issue 5: whether a fair balance had been struck between the severity of the infringement of Convention rights and the importance of the legitimate aim.

Turning to issue 1 of Ground 1, Mr Justice Dexter Dias said: “At the CPC [in] August 2023, the defendant concluded that the significant harm concerns were substantiated. The safety scale used by the defendant is as follows: ‘Safety scale: Where 0 = Danger, and 10 = Safety.’

“As at the CPC, the scaling had increased in concern from 5 (earlier in 2023) to 2, and thus moving significantly away from safety and towards danger. The claimants' case is that ‘it was unlawful to conclude that there was significant harm’ as significant harm means abuse or neglect (which is said to be the ‘shorthand’ for significant harm) and that is what the defendant should have looked for ‘as a starting-point’. It is absent. Therefore, the defendant's decision was irrational.”

The council’s case, however, was that the evidence before the conference in August “fully justified” the conclusion that the significant harm concerns were substantiated. Therefore, the conclusion was “reasonable and lawful”.

The judge said: “Many of the submissions I received on behalf of the claimants centred on the cause or attribution of risk. These submissions were grounded in the evidence provided by the parents. For example, LF said at para 12 of her witness statement:

"[TF] and I have been consistently requesting additional support from the Council since 2021 to help us meet FC and SC's needs. Each of the risks identified through the safeguarding and Child Protection processes were capable of being mitigated through the provision of additional care and support from the Council.””

He added: “Such evidence led to the submission that ‘the neglect is by the council not the family".”

Concluding on issue one, and thereby rejecting the significant harm rationality challenge, the judge said: “When one compares the life experiences of the claimant-children living with LF and her DID condition with the life of comparator child, the defendant was justified in having serious concerns about the physical and emotional harm the children were at risk of suffering in future. It seems to me that in light of the catalogue of incidents and risks that have been identified, it was entirely reasonable for the defendant to conclude that the harm the children had suffered was significant and/or in future was likely to be significant.

“Second, I find the emergent picture very clear. I judge that it was reasonably open to the defendant to conclude on all the evidence that the significant harm concerns that triggered the section 47 investigation were substantiated as at the CPC [in] August 2023.”

Turning to issue two - whether the making of CPPs was “irrational” - Mr Justice Dexter Dias said: “While it is conceivable that some local authorities may have not made CPPs and continued to pursue the section 17 service-provision route, that is not the test in public law. This is not an appeal. It is a rationality challenge with the demanding threshold that entails. The argument that no reasonable local authority could have made protection plans for these children in light of the high degree of risk they faced and the significant harm they were likely to suffer as a result is unsustainable.

“[…] Therefore, the challenge that the making of CPPs was irrational fails.”

Discussing the issue of emotional abuse (issue 3), the judge observed that the claimants' understanding of term emotional abuse in WT 2018 [Working Together to Safeguard Children: A guide to inter-agency working to safeguard and promote the welfare of children] was “flawed”.

He said: “Contrary to the way the argument was originally advanced by the claimants, emotional abuse can arise unintentionally; it does not require ‘fault’; it can result from omission and does not require positive ‘infliction’.

“I cannot accept the submission that ‘it is logically impossible to passively maltreat a child, or to maltreat a child by omission. Any such failing would plainly properly be characterised as neglect.’ It critically depends on all the circumstances as there is unquestionably an overlap between abuse and neglect and both are examples of maltreatment more broadly understood. […] Such harms may indeed overlap and mutually reinforce or deepen. An act of neglect by failing to protect may result in emotional harm and ultimately emotional abuse.”

All three rationality challenges contained within Ground 1 therefore failed.

Finally, considering issues 4 and 5 within Ground 2, Mr Justice Dexter Dias said: “A Child in Need (CIN) plan does not come with the built-in necessity for the sustained multi-agency focus on child safety that a CPP does. While it may be suggested that one could have a CIN plan with the addition of formation of a core group with structured meetings and review to assess child safety, that is what a protection plan is, and why it exists. Thus, I am persuaded by the defendant that a CPP was the least intrusive measure that would not unacceptably compromise the achievement of the legitimate aim of protecting the claimants from future significant harm.”

“The question is whether a fair balance has been struck. To examine that, it will help to assess the elements in the Tigere formulation by Lady Hale: ‘the severity of the consequences, the importance of the aim and the extent to which the measure will contribute to that aim.’”

He concluded: “The defendant has established that the making of the plans was the least intrusive measure and the balance struck fair. Therefore, the two challenges to the proportionality of the measure fail. Given that the first two steps of the proportionality analysis are not disputed, the overall article 8 proportionality challenge fails. […] I find that the defendant's making of each protection plan was a proportionate measure to achieve a legitimate aim of the highest importance.”

Dismissing the claim on both grounds, Mr Justice Dexter Dias ended the judgment by providing the following positive update on the children: “FC attends a residential special school from Monday to Thursday, coming home at weekends and for school holidays. A substantial care package, as agreed at mediation, is in place to support him at weekends and holidays. He has experienced improvements in communication, accessing the community and family life. He is happier and more settled. FC and SC's relationship as siblings has improved significantly. SC has come out as transgender which has made him feel more comfortable in himself and more confident socially. He has developed new strong friendships and has settled into his specialist school placement.”

Lottie Winson