Lancashire CC v A
| Jurisdiction | England & Wales |
| Judgment Date | 2000 |
| Date | 2000 |
| Court | House of Lords |
| Year | 2000 |
Care proceedings – Care order – Threshold conditions – Shared care arrangement – Child’s care shared between parents and paid child-minder – Child suffering serious non-accidental injuries – Court unable to identify perpetrator – Whether threshold conditions for making care order satisfied – Children Act 1989, s 31(2)(b)(i).
In September 1998 a paid child-minder took over responsibility for looking after A, who was born 30 March 1998, whilst her parents were at work. Between September to November 1998 A sustained serious, non-accidental head injuries. The local authority commenced care proceedings in respect of A under s 31(2)(b)(i) of the Children Act 1989, which empowered the court to make a care order or supervision order if it was satisfied that ‘the harm, or likelihood of harm, is attributable to . . . the care given to the child’. The local authority relied exclusively on the injuries sustained by A during that two-month period to satisfy the threshold conditions. The judge held that for the purposes of s 31 he had to be satisfied that the significant harm was attributable to the care given to the child by the parent against whom the order was sought, and that as he was unable to conclude that the harm suffered by A was attributable to A’s mother or father, the application should be dismissed. On appeal, the Court of Appeal held that the ‘attributable’ condition in s 31(2)(b)(i) was satisfied if the harm was attributable to an absence of proper care to the objective standard laid down in that condition, and they reversed the judge’s decision. A’s parents appealed to the House of Lords contending that, having regard to the statutory context and the legislative policy behind Pt IV of the 1989 Act, ‘the care given to the child’ in s 31(2)(b)(i) meant the care given to the child by the parents or other primary carers. The local authority and A’s litigation friend submitted that no such limiting words were to be read into the statute: the relevant phrase meant the care given by anyone who played a part in the care arrangements for the child.
Held – The threshold conditions set out in s 31(2)(b)(i) of the 1989 Act for making a care order or supervision order were met where the court was satisfied that a child, whose care was shared between the parents and a child-minder whilst the parents were at work, had suffered significant harm, even though the court was unable to identify which of the carers had inflicted the injuries, and there was no more than a possibility that the parents were responsible for inflicting those injuries. Whilst that interpretation of the attributable condition meant that parents, who might be wholly innocent and whose care might not have fallen below that of a reasonable parent, would face the possibility of losing their child with all the pain and distress that
caused, so far as the threshold conditions were concerned, the factor which outweighed all others was the prospect that any unidentified, and unidentifiable, carer might inflict further injury on a child he or she had already severely damaged. In the instant case, on the facts found by the judge the threshold conditions were met. It followed that the appeal would be dismissed.
Decision of Court of Appeal (Lord Woolf MR, Butler-Sloss and Robert Walker LJJ) [1999] 3 FCR 241 affirmed.
Cases referred to in opinionsH and R (minors) (sexual abuse: standard of proof), Re[1996] 1 FCR 509; sub nom Re H (minors) (sexual abuse: standard of proof) [1996] AC 563, [1996] 1 All ER 1, [1996] 2 WLR 8, [1996] 1 FLR 80, HL.
Hackney London BC v G [1994] 2 FCR 216; sub nom Re G (a minor) (care order: threshold conditions) [1995] Fam 16, [1994] 3 WLR 1211, [1994] 2 FLR 69.M (a minor) (care order: threshold conditions), Re [1994] 2 FCR 871, [1994] 2 AC 424, [1994] 3 All ER 298, [1994] 3 WLR 558, [1994] 2 FLR 577, HL.
Northamptonshire CC v S [1993] 1 FCR 351, [1993] Fam 136, [1992] 3 WLR 1010, [1993] 1 FLR 554.
Walsh v Rother DC [1978] 1 All ER 510; affd [1978] 3 All ER 881, CA.
AppealThe parents of a female child, A, appealed from a decision of the Court of Appeal (Lord Woolf MR, Butler-Sloss and Robert Walker LJJ) ([1999] 3 FCR 241) allowing an appeal by the council, Lancashire County Council, from the decision of Judge Gee to dismiss the council’s application for a care order in respect of A. The facts are set out in the opinion of Lord Nicholls of Birkenhead.
David Harris QC (instructed by Sharpe Pritchard, agents for Ryan Heatons), Paul Hart (instructed by Kevills) and Jacqueline Wall (instructed by Sharpe Pritchard, agents for Ryan Heatons) for the parents.
Ernest Ryder QC and Robert Dodds (instructed by the local authority solicitor) for the local authority.
David Hershman QC (instructed by John Whittle Robinson) for the litigation friend.
Their Lordships took their time for consideration.
16 March 2000. The following opinions were delivered.
LORD SLYNN OF HADLEY.My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Nicholls of Birkenhead. For the reasons he gives, I too would dismiss this appeal.
LORD NOLAN.My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Nicholls of Birkenhead. For the reasons he gives, I too would dismiss this appeal.
LORD NICHOLLS OF BIRKENHEAD.My Lords, s 31(1) of the Children Act 1989 empowers the court to make an order placing a child in the care of a local authority or putting him under the supervision of a local authority or a probation officer. Before the court may make such an order certain minimum conditions, familiarly known as threshold conditions, must be satisfied. These are set out in s 31(2), which reads:
‘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 him; or (ii) the child’s being beyond parental control.’
Harm is defined in wide terms in s 31(9). When the threshold conditions are satisfied, and the court proceeds to consider whether to exercise its discretionary power to make a care order or a supervision order, the child’s welfare is the court’s paramount consideration. The court has regard in particular to the matters itemised on the welfare checklist set out in s 1(3) of the Act, including any harm the child has suffered or is at risk of suffering and how capable each of his parents is of meeting his needs. Thus, the findings made by the court regarding the threshold conditions are carried forward to the consideration of the child’s welfare needs. The court will not make an order unless it considers that doing so would be better for the child than making no order (s 1(5)).
On this appeal the House is called upon, for the third time, to interpret the threshold conditions. In the previous case of Re M (a minor) (care order: threshold conditions) [1994] 2 FCR 871, [1994] 2 AC 424 the House considered what was the date at which the threshold conditions must be satisfied. In the case of Re H and R (minors) (sexual abuse: standard of proof)[1996] 1 FCR 509; sub nom Re H (minors) (sexual abuse: standard of proof) [1996] AC 563 attention was focused on the first threshold condition, sometimes referred to as the ‘significant harm’ condition, set out in s 31(2)(a). On the present occasion the point at issue concerns the second threshold condition (the ‘attributable’ condition), set out in s 31(2)(b), and in particular the phrase ‘the care given to the child’. This appeal is another illustration of what Lord Templeman, in the Re M case, aptly referred to as the tyranny of language.
Before identifying the issue I should mention two preliminary points which attracted little, if any, controversy between the parties. First, the phrase ‘attributable to’ in s 31(2)(b) connotes a causal connection between the harm or likelihood of harm on the one hand and the care or likely care or the child’s being beyond parental control on the other hand. Echoing the language of Donaldson J in a different context (in Walsh v Rother DC [1978] 1 All ER 510 at 514), the connection need not be that of a sole or dominant or direct cause and effect; a contributory causal connection suffices. For instance, if a parent entrusts a child to a third party without taking the precautionary steps a reasonable parent would take to check the suitability of the third party, and subsequently...
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