Lancashire County Council v B
| Jurisdiction | UK Non-devolved |
| Judge | LORD SLYNN OF HADLEY,LORD NOLAN,LORD NICHOLLS OF BIRKENHEAD,LORD HOFFMANN,LORD CLYDE |
| Judgment Date | 16 March 2000 |
| Neutral Citation | [2000] UKHL 16 |
| Date | 16 March 2000 |
| Court | House of Lords |
And Another
And Another
And One Other Action
[2000] UKHL J0316-1
Lord Slynn of Hadley
Lord Nolan
Lord Nicholls of Birkenhead
Lord Hoffmann
Lord Clyde
HOUSE OF LORDS
My Lords,
I have had the advantage of reading in the speech prepared by my noble and learned friend Lord Nicholls of Birkenhead. For the reasons he gives, I too would dismiss this appeal.
My Lords,
I have had the advantage of reading in the speech prepared by my noble and learned friend Lord Nicholls of Birkenhead. For the reasons he gives, I too would dismiss this appeal.
My Lords,
Section 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 section 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 section 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 section 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 (section 1(5)).
On this appeal the House is called upon, for the third time, to interpret the threshold conditions. In the previous case of In re M. (A Minor) (Care Orders: Threshold Conditions) [1994] 2 A.C. 424 the House considered what was the date at which the threshold conditions must be satisfied. In the case of In re H. (Minors) (Sexual Abuse: Standard of Proof) [1996] A.C. 563 attention was focused on the first threshold condition, sometimes referred to as the 'significant harm' condition, set out in section 31(2)(a). On the present occasion the point at issue concerns the second threshold condition (the 'attributable' condition), set out in section 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 section 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 District Council [1978] I.C.R. 1216, 1220), 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 the third party injures or sexually abuses the child, the harm suffered by the child may be regarded as attributable to the inadequate care of the parent as well as the third party.
The second preliminary point is that to be within section 31(2)(b)(i) the care given or likely to be given must fall below an objectively acceptable level. That level is the care a reasonable parent would provide for the child concerned. Thus an absence of a reasonable standard of parental care need not imply that the parents are at fault. It may be, for instance, that for reasons beyond their control the parents are not able to provide a reasonable standard of care for the child.
The issue between the parties is best explained by reference to the unhappy facts of this case. They are set out in the judgment of the Court of Appeal, reported at [2000] 2 W.L.R. 346. The essential features are these. Child 'A', a baby girl, was born on 30 March 1998. Her parents were living together. A's mother returned to work three months later, on 13 July, and for the next two months A was looked after by several people. On 7 September 1998 a paid childminder, with a child of her own (child 'B', born on 26 February 1998), took over responsibility for looking after A while A's parents were at work. During the day A was looked after by B's mother in her (B's mother's) home. Otherwise A's parents looked after A in their own home.
After this arrangement had been place for two months, on 2 November 1998 A was found to have sustained serious non-accidental head injuries. She was then seven months old. The local authority applied for a care order in respect of A, and subsequently in respect also of B. On 3 December A was discharged from hospital to foster carers. At a finding of fact hearing which commenced in court on 1 March 1999 the local authority, in respect of both A and B, sought to satisfy the threshold conditions by relying exclusively on the injuries sustained by A between September and November 1998. The local authority did not seek to rely upon any other incident which might have amounted to poor or deficient care by A's parents, nor did it suggest that the choice of B's mother as child-minder constituted deficient care on the part of A's parents.
His Honour Judge Gee, sitting in the Blackburn County Court, found that in the period of six weeks prior to 2 November A had suffered at least two episodes of violent shaking, resulting in serious non-accidental injuries. The injuries comprised subdural haemorrhages, retinal haemorrhages and cerebral atrophy. They constituted significant harm for the purpose of section 31. The injuries had been inflicted by a member of household A or household B, but not both. The father of B was not the perpetrator of any of the injuries, but the evidence was such that it was not possible to decide which of A's mother, A's father, or B's mother was the perpetrator. Judge Gee expressed the dilemma confronting him in these stark terms:
'If the criteria are met and orders are made I am exposing one child to the possibility of removal from parents who are no risk and have done no wrong. … If the applications are dismissed then I will undoubtedly be causing one child to be returned to a parent or parents, one or both of whom are an obvious and serious unassessed risk.'
The judge then applied to the facts of this case an observation of Wall J. in In re G (A Minor)(Care Order: Threshold Conditions) [1995] Fam. 16, 20:
'The inescapable construction of section 31, in my judgment, is that the court has to be satisfied by evidence that the significant harm suffered by the child is attributable to the care, or absence of care, given to the child by the parent against whom the order is sought.' (Emphasis added)
Since he was unable to conclude that the harm suffered by A was attributable to A's mother or father, Judge Gee dismissed the care order application regarding A. As to B, this child had suffered no harm. Nor could B be regarded as at risk of harm in the future because it had not been established that B's mother had caused the injuries to A. The judge therefore also dismissed the care order application regarding B. Judge Gee reached these conclusions with evident reluctance. He said that the case called out for at least a supervision order which would give the local authority, to an extent, the right to keep an eye on the situation. He made an interim care order in respect of both children pending the hearing of an appeal.
The Court of Appeal (Lord Woolf M.R., Butler-Sloss and Robert Walker L.JJ.) reversed the judge's decision regarding A and upheld his decision regarding B. The court held that Judge Gee had interpreted the language of the threshold conditions too narrowly. The 'attributable' condition is satisfied if the harm is attributable to an absence of proper care to the objective standard laid down in that condition. Giving the judgment of the court, Robert Walker L.J. said (at [2000] 2 W.L.R. 346, 356):
'With the rise in broken marriages and unmarried relationships, and the economic pressure on mothers to remain in employment even while their children are young, the task of caring for children is often shared between parents who are living apart, grandparents and other relatives, and official and unofficial childminders. Where the task is shared in that way and a child suffers serious harm through lack of proper care, that child must not be left at risk simply because it is not possible for the court to be sure which part of the care network has failed.'
The court added, regarding such a case, that 'apportionment of responsibility as between the various carers is both imponderable and irrelevant, even if they are alternate rather than joint carers.' Before the House is an appeal by A's parents against this decision. The Court of Appeal's decision...
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