Court of Appeal allows appeal by parents with cognitive difficulties in care proceedings, orders case to be reallocated
The Court of Appeal has allowed an appeal by parents with cognitive difficulties and set aside care and placement orders made in respect of their 22-month-old child, remitting the matter to a Family Division Liaison Judge to reallocate the proceedings.
In H, Re (Parents With Learning Difficulties: Risk of Harm) [2023] EWCA Civ 59, Lord Justice Baker said that although the judge had shown “commendable diligence” in producing the care proceedings judgment under appeal, it was “far too long”.
The Court of Appeal judge said it was the longest he could recall encountering in care proceedings, extending over 138 single-spaced pages, 335 paragraphs and 85,000 words.
Outlining the background to the case, Lord Justice Baker said that the case concerned H, a 22-month old, whose parents both have cognitive difficulties. H has three older brothers (D, E and F) and one older sister (G), who are between the ages of 23 and 13.
The Court of Appeal judge said there had been a “number of referrals” to the local authority's children services raising concerns about the children, in particular their “relationship with associates of the family”, “allegations of aggressive and sexualised behaviour on the part of E and F”, and “violence allegedly shown by D towards E”.
In September 2018, before H was born, the three youngest of H's siblings were made subject to child protection plans on the basis of “risk of sexual harm”, and the parents signed a “working agreement under which the children were not to have unsupervised contact with D”, the Court of Appeal judge noted.
In a series of therapeutic sessions, G made allegations about E and F. In February 2021, final care orders were made in respect of F and G. The care plans approved were for F to remain at home in his parents' care and for G to stay in long-term foster care.
Lord Justice Baker said: “It is important for the purpose of this appeal to note that findings in relation to G's allegations about E and F were not sought by the local authority and HHJ Lopez rejected an application by G's guardian to invite the local authority to seek such findings”.
During this time, the mother was pregnant again. A prebirth assessment concluded that she had the capacity to “meet basic care needs” but there were concerns about her ability to “understand risk and to provide stimulation to a growing child”, Lord Justice Baker said.
In March 2021, the mother gave birth to H. Three days later, the local authority issued care proceedings in respect of the baby.
That month, at a hearing before a district judge, H was made subject to an interim care order but remained at home with her parents under a working agreement. The case was allocated to HH Judge Lopez.
Over the following year, seven further interim hearings took place before the judge at which a succession of directions were given.
“During this time there were continuing reports of aggressive behaviour by F who was still living at home. But H was seen as developing well with age-appropriate behaviours. There were no concerns about the mother's basic childcare and professionals observed emotional warmth and affection between mother and baby”, Lord Justice Baker said.
Fifteen months after the start of the care proceedings concerning H, a final hearing took place. The judgment was reserved and handed down in September 2022, in which the judge made care and placement orders.
The parents filed a notice of appeal, which was granted on 21 November 2022. Lord Justice Baker told the court that at this point H remains with her parents at home where she has lived all her life.
Six grounds of appeal were put forward on behalf of the parents.
(1) The judge erred in the analysis of risk in respect of allegations of sexual harm.
(2) The court was wrong in its conclusion that there has been no change within the family, or in the parenting capacity.
(3) The judge erred by failing to analyse adequately the level and nature of support the family are likely to require if caring for H, which led to an erroneous conclusion that this would amount to "substituted parenting".
(4) The judge was wrong to conclude that extensive work had been undertaken with the family and failed to adequately consider what work had in fact been undertaken.
(5) The judge erred in his analysis of risk to H from her brother F.
(6) The court in determining that a placement order was demanded in this case failed to apply a proportionate approach to the issues before him.
The Court of Appeal judge noted that in submissions, Ms Lorraine Cavanagh KC recast the grounds in a different order, which he followed.
On ground 1 ‘Risk of sexual harm’, Lord Justice Baker outlined that Under s.31(2) of the Children Act 1989,
"A court may only make a care order or supervision order if it is satisfied
(a) that the child concerned is suffering, or is likely to suffer significant harm; and
(b) that the harm, or likelihood of harm, is attributable to (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or (ii) the child's being beyond parental control."
Lorraine Cavanagh KC, on behalf of the parents, submitted that the judge had “gone astray in his analysis of the future risk of sexual harm to H”.
She argued that at the outset of his exposition of the evidence, he had recited the history of the allegations made by G against her brothers E and F, noting in doing so that there had been no findings about those allegations in the earlier proceedings.
“It would have been open to the local authority to seek findings about these allegations in the current proceedings but it chose not to do so. The court had no proven or admitted factual foundation upon which to base a conclusion that the older brothers pose a sexual risk to H. At its height, it remained a mere possibility. In those circumstances, it had been wrong of the judge to rely on what the parents had said about the possibility during their oral evidence.”
Ms Cavanagh argued that the judge's analysis of the risk of sexual harm by F to H failed to take into account the fact that F was about to move out of the house.
Ms Cavanagh acknowledged that it was an agreed fact that the mother had been sexually assaulted by E and that this “did provide an evidential foundation for a finding of risk of sexual harm to H”.
However, she noted that the judge “failed to take into account the fact that E is now rigorously supervised by professional staff at all times when he has contact with his family and is not allowed into the home”.
On behalf of the respondent local authority, Stefano Nuvoloni KC submitted that the judge had “clearly and demonstrably identified the risk and its likelihood, carefully considered how that risk could be mitigated, and concluded, on the evidence before him, that any such mitigation would be ineffective to avoid the risk of significant harm”.
Mr Nuvoloni emphasised that the likelihood of risk of sexual harm was “but one element of the agreed threshold” and the parents' inability to protect against this particular risk was only part of the likelihood of significant harm and therefore only one facet with which the parents would require long term support.
In oral submissions, Mr Nuvoloni submitted, “somewhat faintly” according to Lord Justice Baker, that it would be open to the Court of Appeal to carve out the conclusions as to the likelihood of sexual harm and uphold the order on the basis of other risks.
On this, the Court of Appeal judge said: “I am not at all persuaded that this would be possible.”
He added: “The balancing exercise would have been conducted completely differently if the sexual abuse issue had been disregarded. In any event, in the absence of a respondent's notice, this was not an argument which could properly be pursued.”
Lord Justice Baker then went on to look at 'The level of support required – "substituted parenting' (Ground 3). He noted that:
“In Re D (A Child)(No.3) [2016] EWFC 1, [2017] 1 FLR 237, the obligation on the state to provide such support as will enable a child to remain with her parents was identified as an aspect of the State's positive obligation under Article 8 of ECHR. In addition, there is a statutory duty under domestic law. Under s.17(1) of the Children Act,
"It shall be the general duty of every local authority …
(a) to safeguard and promote the welfare of children within their area who are in need; and
(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,
by providing a range and level of services appropriate to their needs."
A child of disabled parents is likely to need a range and level of services of a broader range and higher level to ensure that he or she can continue to be brought up by their family.”
Ms Cavanagh, on behalf of the parents, submitted that, although the judge cited these dicta, he “erred in law in accepting evidence from the local authority and the guardian that the extent of long-term support that would be required is far in excess of that which the local authority can reasonably be expected to provide”.
She argued that in order to carry out a proper evaluation of the option of H remaining with her parents, the judge “needed to identify precisely the package of support that might be provided by the local authority under its statutory duties”.
Mr Nuvoloni, on behalf of the respondent local authority, pointed out that the judge's conclusions were based upon the evidence of professionals who had given evidence specifically on the issue of the support the family would require in parenting H.
He argued that the judge was entitled to rely on that evidence, and the discussion and balancing of the evidence in the concluding section of the judgment demonstrated that there was “no failure of analysis”.
Considering ground 4 ‘Mistake as to the work that had been undertaken’, the Court of Appeal judge noted that in his original assessments in 2020, Mr Hutchinson, a consultant psychologist, had advised that “both parents required psychoeducational work to enable them to understand the nature of any potential sexual risks to the children”. This work has not been carried out.
In the current proceedings, Mr Hutchinson and Dr Gregory, another psychologist who had carried out assessments of the parents, agreed that the work which had been carried out would be “unlikely to have made any difference”. Further work proposed for the parents and for F in 2020, including a safety plan for the children at home, had also not been provided, noted Lord Justice Baker.
Under grounds 6, 2 and 5 ‘Proportionality’, it was submitted that the judge “did not adequately evaluate the placement option with the parents”.
It was submitted that a number of important matters were not taken into account or adequately addressed, including:
(1) the steps which the local authority could have taken, but has not taken, to protect H from F;
(2) the fact that F, now aged 16, is starting pathway planning to semi-independent and supported living like his brother;
(3) how the fact that the parents will shortly no longer have the burden of caring for the older children will affect their capacity to care for H;
(4) the fact that, unlike her siblings, there is no sign of cognitive impairment in H who is currently meeting all developmental milestones;
(5) the importance to H of her relationships with her siblings and the impact on her of the loss of those relationships should she be placed for adoption;
(6) the impact on H, a child who has to date suffered no identified harm, of breaking the close attachment she has formed with her parents, particularly her mother, with whom she has lived all her life.
It was submitted that the overall proportionality exercise conducted by the judge was inadequate. His reasoning failed to take into account all of the factors in favour of a placement at home and failed to analyse fully some of the factors that were perceived to be disadvantages of that placement, it was argued.
After considering the submissions, Lord Justice Baker allowed the appeal, describing the appellants' submissions as “cogent and persuasive”.
His reasoning was as follows: “S.1(3)(e) of the Children Act and s.1(4)(e) of the Adoption and Children Act 2002 require the court to take into account any harm which the child is at risk of suffering, not is possibly at risk of suffering.” (Judge’s emphasis)
“As this Court in Re M and R made clear, in passages subsequently endorsed by the Supreme Court, before a court can take into account any harm which the child ‘is at risk of suffering’, the risk has to be established on the basis of proven fact, not a mere possibility. Despite the very clear warnings the judge gave himself that the various allegations of sexualised behaviour and abuse between the older children had not been proved, he nevertheless proceeded on the basis that H ‘is at risk’ of suffering sexual harm.
“In this case, save for the incident when the mother had been assaulted by E, there was no proven fact relating to sexual abuse or sexualised behaviour. The fact that the local authority had ‘concerns’ was insufficient to establish the risk.”
The Court of Appeal judge noted that Mr Nuvoloni was right to say that the likelihood of risk of sexual harm was but one element of the agreed threshold.
However, he noted it was “plainly the central element” and that if there had been no suggestion of such a risk, it seems much less likely that the local authority would have pursued, or that the court would have approved, a plan for the removal of H from home.
Lord Justice Baker allowed the appeal on ground 1.
He noted that “as the case law makes clear”, there is an obligation on a court to enquire carefully as to what support is needed to enable parents with learning difficulties to show “whether or not they can become good enough parents”.
A local authority cannot press for a plan for adoption simply because it is unable or unwilling to support the child remaining at home, he stated.
He said that in his view, although the judge recited “substantial passages of the evidence”, he “failed to subject it to the degree of rigorous scrutiny required in these circumstances”.
Lord Justice Baker said: “In the interests of the child, the starting point should have been, first, to identify and describe the level of support needed by the family, secondly ascertain what can and should be being done under the local authority's obligations, and thirdly to determine whether, with that in place, the child's welfare needs will be met. This involves a careful assessment of what the package would look like, how practical it is and how intrusive it would be for the child. That process was simply not carried out in this case.”
He continued: “Furthermore, the judge did not sufficiently acknowledge that any assessment of the degree of support required by the parents, and the risks to H resulting from the degree of professional involvement in her life, had to be undertaken in the context of the current circumstances of the family.
“Many of those circumstances pointed positively to an outcome under which H could safely stay with her parents. She is now rising 2, has always lived at home, and has a close attachment to her mother. There is a professional consensus that she has been well cared for in many respects up to now. Unlike her siblings, she seems to have no cognitive impairment and is meeting her developmental milestones. F will shortly be moving to semi-independent living. After that, H will be the only child at home and thus the sole focus of her parents' care.”
The judge concluded that the appellant also succeeded on grounds 3, 4 and 6. He said: “The proportionality evaluation cannot stand. Despite his great industry, the judge's analysis was insufficient to entitle him to reach the conclusion required by the case law, in particular Re B, that nothing else but adoption will meet the welfare needs of the child.”
The Court of appeal judge allowed the appeal, and set aside the care and placement orders.
He remitted the matter to the Family Division Liaison Judge for the Midland Circuit to “reallocate the proceedings to another judge as she considers appropriate”.
He told the court that in proposing that this appeal be allowed, “I emphasise that I am not intending to indicate what the ultimate outcome of these proceedings should be.”
Lord Justice Warby, agreeing, said: “One should always be cautious of deciding a case on the basis of concessions, particularly when they are made by vulnerable individuals. In this case the concessions on which the Judge relied were not enough to meet the threshold, even taken at their highest. The parents had conceded only that if the allegations of sexual touching were true then H would be at risk of harm; and that it was possible those allegations were true. Those concessions were not capable of establishing the necessary factual basis for a finding that there was (rather than might be) a real possibility of future harm.” [judge's emphasis]
Lady Justice Falk agreed with both judgments.
Lottie Winson
