EF and GH (Children) (Rev 1)

I am concerned with two children, GH who, is six years of age, and EF, who is five years of age. The mother of both children is AB, who is 39 years of age and, very sadly, and very tragically, was on 17 March last year diagnosed with terminal cancer. The father is CD, who is 49 years of age. These proceedings are brought by the local authority, Leicester City Council.

The formal steps in these proceedings were initiated on 31 March 2017 and the mother AB requested the local authority to accommodate the children pursuant to s.20 Children Act 1989. The children were so accommodated on 3 April 2017 and have remained living with local authority foster carers since that time. The local authority issued these proceedings on 21 June 2017 and both of the children were made a subject of interim care orders by on 29 June 2017.

An issue has arisen in this case as to whether on the facts of this case the threshold criteria of s.31(2) of the 1989 Act are satisfied or not. The local authority, and the Children’s Guardian, submit that the criteria are satisfied, and the mother AB submits that the criteria is not satisfied. All parties are, however, agreed that in the event that I find the threshold criteria are not satisfied then the children would remain accommodated by the local authority, pursuant to the provisions of s.20 of the 1989 Act and that I should, of my own motion, make both children wards of this court.

It is agreed by all parties that this mother AB was, prior to the events of March 2017, a good, loving, caring mother, about whom nothing adverse was known which could call into question her ability to parent her two precious children. The father CD, it is said, was a drug user and there were some issues of domestic violence. However, prior to the children being received into care, the father CD abandoned the family and has not since returned or made contact with the mother AB, the children, or the local authority. It follows that he has played no part in these proceedings at all.

In August of last year, the mother AB was seen by a psychiatrist at the Hospital, who concluded that she lacked capacity to conduct this litigation and a litigation friend has since then been taking an active role in this case. The mother’s state of health has, since March of 2017, fluctuated in response to her medical treatment for her cancer. She has, to date, undergone eight rounds of chemotherapy. She is still, happily, alive and has survived far longer than the treating clinicians had thought, but sadly she remains terminally ill and it is only a question of time.

Notwithstanding those fluctuations in her health and in her mental wellbeing, the mother AB has throughout, it is agreed, been cooperative with the local authority and has readily accepted the advice and support provided by the social workers. One example is provided by the fact that recently the mother AB has expressed a desire for the children to stay at the family home overnight over a weekend. She found a member of her community who was prepared to stay overnight each weekend when the children were with her, just to ensure that no harm befell the children if the mother AB should suffer a deterioration in her physical health. The local authority considered that proposal and advised the mother AB that for practical reasons, the overnight staying contact should be limited to one overnight stay per week, with the family friend staying and sleeping in the home, would be in the best interests of the children. The mother AB agreed and did not oppose that advice given by the local authority.

There are very real and understandable concerns held by the local authority and by the Children’s Guardian as to what will happen to the two young children when the very sad day comes and the mother AB dies. This case has been occupied for many months with assessments of the mother’s two brothers, one of whom lives with his wife and children in India and one lives with his wife in the Kingdom of Spain. There have been difficulties with the family in India obtaining visas from the Entry Clearance Officer. This refusal is now the subject of an appeal by the mother’s Indian brother in to a tribunal. A hearing is fixed for a date, I am told, in June. In any event the mother AB has suggested one or more members of her local community who would be prepared to look after the children.

May I express at the outset my immense gratitude to leading and junior counsel for all parties for the very comprehensive and helpful written and oral submissions?

The threshold criteria is set out in s.31(2) of the Children Act 1989 and reads as follows:

“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 (1) 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 (2) the child being beyond parental control”.

What particularly concerns me in this case is the phrase, ‘attributable to the care given to the child or likely to be given to the child if the order were not made, not being what it would be reasonable to expect a parent to give to him’. I have helpfully been referred to a number of leading authorities.

In the case of Re J (Children) [2013] UKSC 9, at paragraph 47, Baroness Hale, said:

“The threshold comes in two limbs and each has two distinct components. In the first limb the court must be satisfied (a) that the child is suffering significant harm and (b) that that harm is attributable to the care being given to him, not being what it would be reasonable to expect a parent to give to him. The second limb the court must be satisfied that (a) the child is likely to suffer significant harm and (b) that that likelihood is attributable to the care likely to be given to him if the order is not made, not being what it would be reasonable to expect a parent to give to him”.

I was referred to the decision of Hedley J, as he then was, in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050 when at paragraphs 50 and 51 he said:

“What about the court’s approach in the light of all that to the issue of significant harm? In order to understand this concept and the range of harm that it is intended to encompass it is right to begin with issues of policy. Basically, it is the tradition of the UK recognised in law that children are best brought up within natural families. Lord Templeman in Re KD (A Minor: Ward) (Termination of Access) [1988] 1 AC 806 at 812 observed, ‘The best person to bring up a child is the natural parent. It matters not that the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not in danger. Public authorities cannot improve on nature’. There are those who may regard the last sentence as controversial, but that undoubtedly represents the present state of the law in determining the starting point. It follows inextricably from that that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the very adequate and the inconsistent. It follows, too, that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, whilst others flourish in atmospheres of love and security and emotional stability. These are the consequences of our fallible humanity and is not the provenance of The State to spare children, or the consequences, of defective parenting. In any event, it simply could not be done. That is not, however, to say The State has no role as the 1989 Act fully demonstrates. Nevertheless the 1989 Act wide ranging though the courts and the social service’s powers may be, it is to be operated in the context of the policy I have sought to describe. Its essence, in part three of the 1989 Act, is the concept of working in partnership with families who have children in need. Only exceptionally should The State intervene with compulsive powers and then only when a court is satisfied that the significant harm criteria in Section 31(2) is made out. Such an approach is clearly consistent with Article 8 of the European Convention of the Protection of Human Rights and Fundamental Freedoms 1950. Article 8(1) declares a right of privacy and family life but is not an unqualified right. Article 8(2) specifies certain stances in which The State may lawfully infringe on that Right. In my judgement, Article 8(2) and Section 31(2) contemplate the exceptional rather than the commonplace. It would be unwise, to a degree, to attend an all-embracing definition of significant harm. One never ceases to be surprised at the extent of the complication and difficulty that human beings manage to introduce into family life. Significant harm is fact specific and must retain the breadth of meaning that human fallibility may require of it. Moreover, the court recognises, as Lord Nicholls pointed out in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, ‘That the threshold may be comparatively low. However, it is clear that it must be something unusual, at least something more commonplace, more than the commonplace human failure, for inadequacy’.”

In the case of Re A (Application for Care and Placement Orders: Local Authority Failings) [2016] 1 FLR 1 the President of the Family Division quoted those words of Hedley J and entirely agreed with him. He then said this, ‘That approach is endorsed by the Supreme Court in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33’. There are two passages in the judgments of the Justices which developed the point and to which I need to draw particular attention. The first is in the judgment of Lord Wilson where he said at paragraph 28:

“Many parents are hypochondriacs, many parents are criminals or benefit cheats, many parents discriminate against ethnic or sexual minorities, many parents support vile political parties or belong to unusual or militant religions. All of these follies are visited upon their children who may well adopt or model them in their own lives, but those children would not be removed for those reasons”.

The other observation is of Baroness Hale at paragraph 143 where she said:

“We are all frail human beings with our fair share of unattractive character traits, which sometimes manifests themselves in bad behaviours which may be copied by our children, but a State does not, and cannot, take away children of all people who commit crimes or abuse alcohol or drugs or who suffer from physical or mental illnesses or disabilities or who espouse anti-social political or religious beliefs”.

In relation to the question of the likelihood of significant harm I was referred to the decision of the House of Lords in Re H and R (Minors) (Child Sexual Abuse: Standard of Proof) [1996] AC 563 where it was said: ‘A real possibility, a possibility that could not sensibly be ignored, and in regard to the nature and gravity of the feared harm in a particular case’ is the test to be applied. In Re D (a child) (Care Order: Evidence) [2010] EWCA Civ 1000, Hughes LJ, as he then was said:

“If it were otherwise and the care which it is reasonable to expect a parent to give which we judge by the standards of the parent, with the characteristics of a particular parent in question, the protection afforded to children would be very limited indeed, if not entirely elusive. It would in effect then be limited to protection against a parent who was fully able to provide proper care that either chose not to do so or neglected through fault do so. That is not the meaning of Section 31(2). It is abundantly clear that a parent may unhappily fail to provide reasonable care, even though he is doing his incompetent best”.

Again, in relation to the restrictions on state intervention I was referred to the judgment of Lord Templeman in Re M (a minor) (Care Orders: Threshold Conditions) [1994] 2 FLR 577 where he said:

“Restrictions on the right of a local authority to apply for a care order were imposed by Section 31 to prevent a local authority interfering too readily with the rights and responsibilities of parents. A local authority cannot apply for a care order unless at the date of the application the child is suffering or is likely to suffer significant harm. Once the local authority has grounds for making an application the court has jurisdiction to grant that application. If between the date of the application and the date of the judgment of the court circumstances arise which make a care order unnecessary or undesirable the local authority can withdraw its application for a care order or the court can refuse to make a care order”.

In relation to when there may be a need for a care order I was referred to the recent decision of Holman J, in London Borough of Brent v C [2016] EWHC 1335 (Fam) where at paragraphs 11 and 12 of this judgment he said as follows:

“The essential purpose of the application of care order is to confirm the local authority parental responsibility so they have a proper legal authority for future decision-making for C. That parental responsibility would remain shared with the continuing responsibility of the mother; however, the mother has made quite clear in practice it would be exclusively exercised by the local authority. There are agreed threshold criteria for the purposes of Section 31 of the 1989 Act, the essence of which is as the mother does not wish to exercise any parental responsibility or to care for the child, in any way at all, he would be likely to suffer significant harm if the local authority do not do so”.

I am reminded that the threshold criteria of s.31(2) does not have imputed into it any question of culpability or intentional actions. In Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33 Lord Wilson said at paragraphs 30 to 31:

“Second matter relates to Mr Feehan’s submission that the threshold set by Section 31(2) is not crossed if the deficits relate only to the character of the parents, rather than the quality of their parenting. His alternative submission is that harm suffered or likely to be suffered by a child as result of parental action, or inaction, may cross the threshold only if in so acting or failing to act the parent, or parents, were deliberately or intentionally to have caused, or be likely to cause, such harm. M is, of course, not responsible for her personality traits nor for her psychiatric disorders. The effect would be, in effect the submission is that dishonesty animosities and obstructionism of the parents represent deficits only of character and that if, and insofar as they might cause harm to Amelia[?], whom they love, the harm is neither deliberate nor intentional. The first of these submissions, or tentative submissions, represents a false dichotomy, for the character of the parents is relevant to each stage of the enquiry; whether to make a care order only to the extent that it affects the quality of their parenting. Second of them is misconceived for there is no requisite mental element to accompany the actions, or inactions, which have caused or are likely to cause significant harm. Section 31(2b) (1) requires only that the harm, or likelihood of harm, should be attributable to the care given or likely to be given to the child not being what it would be reasonable to expect the parent to give to him. Such is a requirement only of causation as between the care and the harm”.

Then in relation to the issue which may arise of the children being wards of court, whilst at the same time accommodated by the local authority, pursuant to s.20 of the 1989 Act I was referred to the decision of the Court of Appeal in Re E (A Child) [2012] EWCA Civ 1773 where Thorpe LJ said at paragraph 16 and 17:

“So, in the end it seems to me that this is a simple point, plainly the intention of effect of Section 100 is to prevent, the court in wardship, making any order which has the effect of requiring a child to be placed in care or under the supervision of a local authority. That end can only be achieved by going through the proper route of threshold finding, opening the court to discretionary jurisdiction to make either a care order or a supervision order. The same result cannot be achieved under the court’s inherent jurisdiction, but there is nothing in Section 100 that explicitly, or implicitly, precludes the court from making an order in wardship where the child is not required to be accommodated but is voluntarily accommodated. Of course, if the accommodation agreement is terminated by either or both of the parties to the agreement then obviously the court is not in a position to then require the local authority to accommodate or to supervise, but so long as Section 20 placement remains there, in my judgement, the judge was not prevented from making the order which he clearly found to be an order most likely to made for the welfare of the child”.

The mother AB, on learning of her diagnosis on 17 March, made what must have been for her the very difficult decision on 31 March to ask the local authority to accommodate her children because she recognised, as she still recognises, that during the course of her treatment she is not able to care for her children. There is, held by all, a concern about what will happen to the children when the mother AB dies; who will be looking after them, who will love them and protect them? No clear alternative care plan is yet, unfortunately, available and that is not the fault of the mother AB, the local authority or indeed the Guardian.

It is submitted on behalf of the local authority, and by the Guardian, that at the date the children were accommodated by the local authority they were at risk of suffering significant harm in the future arising from the mother’s fluctuating physical health and what will happen to the children when the mother AB died. The local authority in addition to a comprehensive skeleton argument, filed and served an amended threshold document. That set out, at paragraph six, the following, ‘First Respondent Mother was diagnosed with a terminal brain tumour on 17 March 2017 and on 31 March 2017 request the children be accommodated as she was unable to meet their basic care needs as a result of her health difficulties’.

There are then set out a number of what are called particulars, over the 17 days prior to the request for them to come into care, which relate to the mother AB having difficulties standing, of reporting that the father CD was being aggressive, that she had reduced mobility, the children were not reliably clean or in appropriate clothing, the mother AB does not feel safe, and the mother AB was not able to provide for her children. The further particulars are said to be (a) the fact that she has terminal cancer and (b) the capacity assessment undertaken in August of last year.

It is asserted and submitted on behalf of the mother AB that the threshold criteria are not satisfied because the mother AB did what any reasonable parent would do who found themselves to be a lone parent with a terminal diagnosis of cancer, she sought alternate care for her children so that they would be safe and well looked after.

I entirely accept that if this mother AB had not made this decision on 31 March and had attempted, despite all the travails and adverse consequences of her treatment for cancer, to care for the children alone, it might well be the case that the threshold criteria of s.31(2) were satisfied at the relevant date because given, particularly in the early months after the diagnosis, the degree of her failing health, the consequential difficulties it caused for her mobility and her ability to function, the children would clearly have been at risk of suffering significant harm, especially, for example, if the mother AB suffered a more than transient collapse at home while she had care of the children, but that is not what happened.

Recognising the difficulties she was going to face in her medical treatment and in her medical condition, she made, in my judgement, a timely request for alternate care. In so doing, in my judgement, she acted as a perfectly reasonable, loving, caring mother and requested that the children be cared for by the local authority. She has not subsequently wavered in her acceptance and understanding that the children should remain in full-time foster care, however much no doubt she would want to be looking after them herself. She has cooperated at every stage with the local authority. She has been a willing recipient of advice and support, as is exemplified, as I set out earlier in this judgment, with her acceptance of the advice about the frequency of overnight and weekend contact.

I am not satisfied, therefore, that the threshold criteria of s.31(2) are satisfied in this case, largely on the attributability criteria. In any event, standing back and reflecting on the views expressed by Hedley J, as he then was, Lady Hale and Lord Wilson, the fact that this mother AB is terminally ill does not, in my judgement, deprive her of the right as their parent to make decisions about where they live and to make decisions about with whom they will live in the future, not least when she has died. She will, no doubt, continue to need the advice, the help, and the support of the local authority and I am in no doubt that she will receive it.

As I indicated during the course of oral argument, the fact that I have made this decision is in no way an adverse reflection on either this local authority or these social workers. I entirely accept that they have acted with the very best of intentions and that they have done sterling work in not only ensuring that the children are looked after, but in supporting and helping this mother AB and in endeavouring to formulate, or determine, who might be available to care for the children once the mother has died. My observations apply with equal force to the Children’s Guardian.

If the mother AB had not accepted that the children should remain living elsewhere, if she had not been as cooperative as she has been or could be criticised in any aspect of the exercise of her parental responsibility for the children, the position might well be very different, but there is none that can appropriately be made against this mother AB. Accordingly, I am not satisfied the State in the person of this local authority should be entitled to interfere with the mother’s or the children’s right to respect of their family life.

In those circumstances, not being satisfied that the threshold criteria of s.31(2) are satisfied, I propose to dismiss the care proceedings. It is agreed that the children will thereafter continue to be accommodated by the local authority, pursuant to the provisions of s.20 of the 1989 Act which the mother AB consents to and supports, and I will make the children wards of this court during their minority or until further order.

I make them wards of court because I accept that there may come a time when the mother AB is in the final days of her life and thereafter, when she has very sadly died, it may be necessary for the court to exercise its parental responsibility in wardship to protect these children and to make decisions for them pending final placements of them with family members or with members of the mother’s local community or, potentially, accommodation being offered in the long term by the local authority.