In the matter of K (A Child)

On 18 May 2018 HHJ Tolson QC sitting at the Central Family Court dismissed an application for a care order and instead made a private law order that a little girl, then aged six months, to whom I shall refer as K, should live with her mother. The basis for this outcome was that the judge found that the threshold for intervention under section 31 of the Children Act 1989 had not been made out. This appeal by K's children's guardian, for which I gave permission on 17 July, is supported by the local authority but opposed by the mother.

Events since the making of the judge's order have led to this appeal becoming historic. The local authority issued further proceedings on 14 August, and on 23 August K was removed from her mother's care and placed in foster care under an interim care order. The outcome of these earlier proceedings is nevertheless of some significance as providing a baseline for future decisions. In the circumstances I describe the background in only the broadest detail and avoid making any observations that might bear on welfare decisions yet to be taken by the Family Court.

Both of K's parents are very young. Her mother was 17 and her father 16 when she was born, and both have troubled personal histories. In 2016 the mother was herself the subject of care proceedings, during which she was diagnosed as having oppositional defiance disorder with behavioural difficulties since at least the age of twelve. In September 2016 she was convicted for failing to comply with a youth rehabilitation order, and at the end of that year she was placed in supported lodgings by the local authority. She then became pregnant and during the course of her pregnancy committed a number of crimes or alleged crimes of violence. She was also the victim of an assault by her brother. She engaged poorly with pre-birth services and at a child protection conference in August 2017 the unborn baby was registered under the category of potential neglect. This appears to have made little difference to the mother's approach. She was frequently missing from her supported lodgings and continued to smoke skunk cannabis while pregnant. At the time of K's birth in November 2017, the father was wanted by the police and his whereabouts were unknown. In March 2018 he was sentenced to 18 months' detention for armed robbery.

When K was born the local authority began proceedings and an interim care order was made. There was no dispute that the threshold criteria for an interim care order were met. The mother and K were placed in a mother and baby foster placement. Directions were given for assessments on the collection of evidence, including for a psychiatric assessment of the mother.

Regrettably the court did not have before it a properly drafted document setting out the facts relied upon by the local authority to satisfy the statutory threshold for intervention. However, the broad basis upon which the local authority put its case was contained within the application for a care order. This being a case concerning a new-born, the issue was not actual harm but the likelihood of future significant harm, likelihood being interpreted as a possibility that could not sensible be ignored. That possibility, said the local authority, arose from the parents' history as described above.

The evidence that the judge heard showed that the mother had done reasonably well in the foster placement and that no harm had come to K since her birth. Nonetheless, when the matter came before the court for final hearing on 23 April, all parties invited the judge to adjourn to allow for further expert evidence and the assessment of other potential carers. The judge refused this application as well as other adjournment applications made during the hearing. He said in effect that he would "see where we go". His approach led to uncertainty in the minds of the parties as to what was and what was not within the scope of the hearing. That approach is challenged in the grounds of appeal, but the parties are agreed, rightly in my view, that it is no longer necessary to investigate that aspect of the matter.

In the course of his judgment the judge described the mother as having been a deeply troubled teenager. He considered the report of an independent social worker who had acknowledged the mother's ability to look after K's basic care in a highly supported environment but gave the opinion that her volatility would prevent her from giving safe, consistent and nurturing care in the community. That was also the opinion of the allocated social worker and of the guardian, who advised that K would not be safe if placed in her mother's independent care. The psychiatric expert initially expressed cautious optimism but tempered this when she received the other professional opinions. The judge however did not accept this evidence, essentially on the basis of the mother's performance since K was born. He emphasised that the language of "risks" and "concerns" was not good enough. He was impressed by the mother's presentation in court. The judge found and was entitled to find that the mother had not been volatile around or towards K. He posed this question to himself:

Accordingly the judge did not make any public law order but went on a few days later at a hearing a few days later to make a "live with" order in the mother's favour. In case he was mistaken about the threshold, he indicated that had he been making a decision on welfare grounds within care proceedings, he would not have separated mother and child.

On behalf of K's guardian, Ms Porter argues that the judge was wrong to limit his consideration of the threshold to the mother's direct behaviour towards K. Instead he should have looked at the wider context, as required by section 31. She next argues that he paid insufficient attention to the relevant date for consideration of the threshold, namely the time when protective action was taken. Lastly, he allowed the issues of threshold and welfare outcome to become entangled, repeatedly referring while considering the issue of threshold to the need for rigorous scrutiny of the option of what he described as "state-sponsored adoption". These submissions are echoed by Ms Rahman for the local authority. In response, Ms Hibbard, who appeared below for the mother also, argues that the judge did not misdirect himself in any way. She points out that he gave reasons for disagreeing with the professional assessments of risk based upon the mother's actual care for K.

We are grateful for the clear and precise way in which the arguments have been presented. Having considered them, I am in no doubt that the judge's decision that the threshold for the making of a public law order was not met in this case was wrong for the following reasons.

Firstly, the case put by the local authority and the guardian was based on the whole of the history, which covered not only events during K's short lifetime but all the evidence, including incontrovertible evidence concerning events that took place before she was born and while her mother was pregnant with her. By limiting his consideration to the way in which the mother had behaved with K, the judge excluded from his consideration the solid wall of evidence relating to the mother and father's personal histories. Had he taken a full overview of the matter, it would have been overwhelmingly apparent that at the time proceedings were taken in November 2017, there was a likelihood of harm to K as a result of her being born to two very young and volatile parents. The professional evidence did not consist of expressions of "risks" and "concerns" with no basis in fact. Here the facts were plain, and the likelihood of harm arose from them. Those facts undoubtedly disclosed risks of significant harm that could not sensibly be ignored. In this case the threshold under section 31(2) of the Children Act 1989 was not only met, it was obviously met.

Secondly, the judge misdirected himself by failing to focus on the relevant date of his assessment, namely whether, at the time when protective measures were put in place and using the statutory tense, K "is likely" to suffer significant harm. Instead he became distracted by the mother's performance in the mother and baby foster placement. That evidence could only influence the assessment of whether the threshold had been crossed insofar as it might shed light on the significance of the evidence as it stood at the relevant date: see G (Children) [2001] EWCA Civ 968 at paragraph 23. Here, however, there was no suggestion that the later evidence cast new light on the earlier evidence in a way that lessened its significance, and that is certainly not how the judge approached the matter. Had he asked himself the right question – was the threshold satisfied at the date proceedings were issued? – there could only have been one answer.

Thirdly, the judge entangled questions relating to the welfare outcome with the question of whether the threshold had been met. The judge's role is to find the facts, apply the threshold test to them and, where appropriate, make welfare and proportionality evaluations. These are separate exercises, one leading to the next. It is quite possible to reason that the threshold has been crossed but that welfare does not require separation of parent and child. It is not possible to reason that, because the child and parent should not be separated, the threshold has not been crossed.

For these reasons, if my Lord agrees, this appeal must be allowed to the extent that the judge's finding that the threshold of likelihood of significant harm had not been crossed must be set aside. Ms Rahman has today produced a workmanlike threshold document referenced to the largely uncontentious evidence that was before the judge. Subject to certain modifications discussed during the course of the hearing, I consider that the proper approach would be for us to endorse that document as representing the basis on which the threshold was crossed in the previous proceedings. The modifications referring to the existing paragraph numbers are these. Omit the following paragraphs: 6, 12, 13 and 15. Omit the second and third sentences of paragraph 8(1). Omit the first sentence of paragraph 11. Finally, at the end of paragraph 10, substitute the words "at least once" for the words "at times". We would be grateful if, ahead of a hearing which we are told is to take place tomorrow, Ms Rahman could make these amendments and label this document as being the product of the appeal hearing.

In the circumstances that have now arisen, it is unnecessary and undesirable to say more about the judge's assessment of welfare or the orders that he made in that regard. These matters will fall to be considered afresh in the new proceedings.

I agree that the appeal must be allowed to the extent indicated by Peter Jackson LJ.