By Caragh Deery - Law Student @ St Hilda's College, Oxford
[CW: discussion of the legal treatment of child abuse]
S31(1) of the Children Act (CA) 1989 permits a court, on the application of a local authority, to place a child in the care of a designated local authority, or to put a child under its supervision. If the court makes a care order in respect of a child, the local authority has parental responsibility over that child. It can make decisions for the child and override the wishes of the parents. Such an order lasts until adulthood (unless it is discharged), and the child is treated as a “looked after child”. Where the court makes a supervision order in respect of a child, the child can usually stay in the family home, but the local authority will be under an obligation to advise and assist the child. These orders last for up to one year but can be extended annually.
In Re J[1] Lady Hale points out that “in a free society, it is a serious thing indeed for the state compulsorily to remove a child from his family of birth”. This is surely correct. Article 8 of the European Convention on Human Rights protects the right to a private and family life. The state does not and cannot take away the children of all the people who commit crimes, or who abuse alcohol and drugs (Lady Hale, Re B[2]). Unless we adopt a totalitarian approach to state intervention, society must be willing to tolerate very diverse standards of parenting, “including the eccentric, the barely adequate and the inconsistent (Hedley J, Re L[3]).
There must be a relevant or sufficient reason for the state to intervene. The threshold criteria for care and supervision orders are set out in s31(2) CA 1989. First, the court must be satisfied that the ‘child concerned is suffering, or likely to suffer, significant harm’. Second, it must be shown that the relevant harm is attributable to the care given to the child, or the child being beyond parental control. S31(2) sets a deliberately high benchmark for compulsory intervention. The approach in the UK is generally that care and supervision orders should only be applied for as a last resort where voluntary arrangements are unlikely to be effective.
On the other hand, whilst we must respect the right to family life, “it is also a serious thing for the state to fail to safeguard its children from the neglect and ill-treatment which they may suffer in their own homes” (Lady Hale, Re J). The public outcry following the death of Baby P at the hands of his abusive parents in 2007 reflects the social desire to protect at risk children and to prevent avoidable deaths.
Particularly difficult are those cases where there are suspicions that abuse is/or has been occurring, but there is insufficient evidence to prove that it has in fact occurred. Where the court makes the wrong decision, the stakes are high either way. If it makes an order to place a child in the care of the local authority where the suspicion of abuse ends up being unfounded, the court will have destroyed the family unit and needlessly removed a child from his parents. On the contrary, if the court decides to leave the child with the family due to a lack of evidence, it risks leaving a helpless child to endure ongoing abuse.
Webster v Norfolk shows quite how damaging the wrong choice can be. In this case, the parents of three children admitted one of their children into hospital with significant fractures. The hospital and local authority determined that the injuries were non-accidental and had been caused by the parents. All three children were subsequently taken into care and were ultimately adopted. Fresh medical evidence later revealed that the child’s injuries had been caused by scurvy and severe iron deficiency and were not the result of abuse. The parents, who had been proved not to have harmed their child, sought to have the children returned to them. However, adoption orders are permanent and (generally) cannot be overturned. Wilson J emphasised that the children had settled into their new lives with the adopted and dismissed the parents’ applications.
Striking the right balance is difficult, and undesirable outcomes are inevitable. Judges are fallible and sometimes mistakes are made. The law must constantly be reviewed to ensure that it is striking the right balance as far as is possible.
Further reading:
Webster v Norfolk, available at: https://www.familylawweek.co.uk/site.aspx?i=ed32412
Care Proceedings and the Baby P Effect (Irwin Mitchell): https://www.irwinmitchell.com/news-and-insights/newsletters/im-aware/im-aware-autumn-2010/care-proceedings-and-the-baby-p-effect
Citizens Advice webpage on care orders: https://www.citizensadvice.org.uk/family/looking-after-people/children-and-local-authority-care/
[1]Re J [2013] UKSC 9 [2] Re B (A Child) [2013] UKSC 33; note: Lady Hale’s judgment was a dissenting judgment [3]Re L [2006] EWCC 2 (Fam)