Significant Harm

Discussion of what is meant by ‘harm’ and ‘significant’ in care proceedings

‘Is likely to suffer significant harm’ – to what extent are social workers relying on their crystal balls?

Thanks again to Kate W a retired social worker for her thoughts about the meaning of ‘likely to suffer’ significant harm. Consideration of the ‘risk of future harm’ is often a hot topic in debates about the child protection system; its detractors complain that this is no more than ‘crystal ball gazing’ and removal of children without actual proven harm is ‘punishment without crime’. What does Kate say in defence of ‘future risk’?

There appears to be a degree of confusion/misunderstanding about the meaning of “likely significant harm” Children Act 1989. The standard of proof needed is that the children IS suffering significant harm or is likely to suffer significant harm.

I can to some extent understand this confusion, as the wording can suggest that it is possible to see into the future and there is talk of social workers gazing into “crystal balls” etc. Very often parents involved in care proceedings talk of “future emotional harm” though significant harm covers all aspects of abuse and neglect. It would be difficult to argue that any child suffering abuse and/or neglect was not also suffering from emotional harm.

There are some cases where the issue of “likely significant harm” can be proven in court, and I provide some examples from my own experience below.

Case Studies – when parents just can’t cope

Case Study 1: D is a 25 year old single woman, pregnant with her first child. D suffers from schizoid affective disorder, a complex and enduring mental illness. She was diagnosed with the condition at the age of 18 years, though had suffered from mental illness since she was aged around 13 years. The illness from which D suffers is characterised by episodes of deep drug resistant depression and frequent psychotic episodes (as in not being in touch with reality) D hears voices that tell her god wants her to kill herself and she has made numerous suicide attempts by way of ligatures to her neck. She has been sectioned under the Mental Health Act on many occasions and is well known to the Mental Health Crisis Team and the emergency services.

D lives alone on the 10th floor of a high rise block of flats. She has no family support and her only friends are other flat dwellers, one of whom is allegedly the father of the child. However he is completely disinterested in D and claims that he is not the father of the child. He is a drug user and has criminal convictions. D is a heavy smoker, and a moderate drinker, and self harms on a frequent basis, almost always needing hospital treatment. The only support she has is a CPN (Community Psychiatric Nurse) who visits on a monthly basis to deliver medication. D rarely leaves the flat, only to buy essential items of food etc from a nearby shop. Neighbours sometimes shop for her and generally befriend her.

D is 28 weeks pregnant and refuses to access ante natal care though has allowed the health visitor to visit. D claims that she will be able to care for the baby. The HV does not share this opinion. The flat is very unhygienic, the floors are dirty and sticky, the only furniture is a very worn sofa; there is a TV and small table. The kitchen is dirty and greasy – there is a portable cooker and no fridge. The bathroom is dirty as is the bedroom. D has not collected any items for the baby and is dependent on state benefits and the flat is cold in the winter as she rarely has money for the electricity meter. In discussions D shows a complete lack of understanding of caring for a child, either practically or emotionally.

The psychiatric report states that D’s mental health condition will prevent her from giving good enough care to a child. The point is made that this may not be the case if there was a supportive partner and a good support network but this is not the case.

A pre-birth multi disciplinary case conference made a unanimous decision that the LA should make application to the court for an ICO on the basis that this baby is “likely to suffer significant harm” if left in the care of the mother.

D gave birth at 32 weeks to a premature baby who needed several weeks in the Special Care Baby Unit. D left hospital and didn’t visit the baby or show any concern for her child. The baby made good progress and was discharged and placed with foster carers at aged 3 months.
The court made an ICO and later a Placement Order. D did not contest the application, and the Orders were made by consent.

I would stress that it was in no way any fault of D that she was unable to care for her child. Indeed because of her severe mental illness she was barely able to care for herself and that given the extreme deprivation and poverty in which she lived, the care of a baby would have presented her with insurmountable difficulties and of course would place the child “at risk of significant harm.”

Case Study 2: This case concerns a couple who have lived together for 2 years. B (the female partner) and C (male partner). B has moderate learning difficulties and C has mild LDs. There are 2 children aged 2yrs and 8 months. C is not the father of the elder child. A social worker is allocated to the case and is in frequent contact with the family. The SW is concerned because C appears to be spending very little time at home and instead goes to the home of friends to play computer games. This leaves B alone to cope with the 2 children, which puts her under a great deal of pressure. A family support worker is allocated to the family and she visits twice per week and she too is concerned for the welfare of the children in B’s care. She has talked to C about the need for him to spend more time at home to help B care for the children, and despite his promises to do so this isn’t borne out in fact. C’s mother gives support from time to time but other than that, there is no support, although a neighbour “looks in” from time to time.

A nursery place for the 2yr old girl is being financed by CSs for 3 days per week. When C was part of the family he would take the child to nursery but since his absences, B is not motivated to take the child to the nursery hence the child only attends spasmodically. The nursery are concerned that the child is thin, often appearing dirty and smelly and unable to interact with the other children, preferring to cling to one of the adults.

There is growing concern that C is no longer living with B and the children and has in fact moved in to live with another young woman and her children. Initially B denies this but later admits that she thinks he is “not coming back.” The situation is deteriorating, and it is becoming evident that B cannot cope with the house and children. One day the neighbour contacts the social worker to allege that the 2yr old is screaming and B has shut her outside into the small yard. It is cold and the child is wearing only a vest and wellington boots. When the social worker visits a short time later, the child is in the house but C admits to shutting her outside because she was “getting on her nerves” – the child is still cold and distressed. C admits to smacking her to make her stop crying and is vague when asked what the children have had to eat that day. The baby is asleep in a pram and is suitably clad. During the visit C continues to shout at the 2 yr old and is threatening to shut her outside again and the child is crying inconsolably. It’s a grim picture and the social worker tells C she is not capable of caring for the children on her own. C immediately says “well you can take her – she’s a little shit…” the child is moved to foster carers under a S.20 on a temporary basis.

The issue of “likely significant harm” arises with the 8 month baby. He is of normal weight but very pale and has bad nappy rash. Again C cannot say what the baby has had to eat and there is no baby food to be seen in the house. C is disinclined to talk about the child’s diet other than to say he has a bottle of milk at bedtime but there is no formula to be seen, though there are feeding bottles which are dirty and have encrusted milk around the rims. The social worker asks C if there is any formula for the baby or baby porridge/jars etc and C says she doesn’t know but he can have some orange squash. This of course is not suitable nourishment for an 8 month baby. C is disinterested in the baby or his care but is very distressed about B leaving her, which is understandable, and is threatening to go round to the flat where he is living and leaving the baby with him. The social worker speaks to B on his mobile phone and he confirms that he has left C and has a new relationship. He does not want to care for the baby and claims that he is not the father. He is told about the EPO on the 2 year old and makes no comment, other than to say it’s a good thing as C is a “lazy cow who sits on her arse all day.” The SW asks if C’s mother will look after the baby and he says he doesn’t know but provides a telephone number, but she is totally unwilling to care for the baby or support C and repeats the claims that her son is not the father of the baby.

The social worker goes next door to talk to the neighbour who gives more information and states her concern that things have “gone downhill” since B left the family. Upon the social worker’s return to C’s home, she is half asleep on the sofa and the baby is wailing. She is refusing to give her consent for the baby to be taken from her. The social worker advises that she will have to seek an EPO on the grounds that the child is “likely to suffer significant harm” if he remains in the care of his mother. The EPO is granted and the baby moved to foster carers later that evening. He thrived in the care of the foster carers and was described as an “easy pleasant baby who ate and slept well.” C made very little effort to take advantage of contact offered to her whilst the children were with foster carers. However it was recognised by all concerned that C needed care and support for herself, given her moderate learning disabilities and this was provided by a social worker to some extent. It was an impossible task to expect that she could care for 2 young children when she was functioning as a child herself. It had been possible while B was in the family home as he was far more able than C and there hadn’t been any serious concern until he actually left the family.

Both children were later made subject to Placement Orders and adopted, though separately as it became clear that the 2 year old needed to be the youngest child in the family as she had clearly been immensely traumatised in the first 2 years of her life in the care of her mother and step father. This was manifested in some very difficult and challenging behaviours – and like many children who have suffered abuse/neglect, there was a significant gap between her emotional age and chronological age. Additionally she was also failing to meet her developmental milestones and there was concern about global developmental delay. The baby fared better as he had been with the mother and step father for a shorter time and so was much more able to form secure attachment patterns with his adopters.

Case study 3: this involved J (a young woman aged 18 years) who lived with her mother and younger brother. It was a very stable family and J enjoyed a close relationship with her mother and brother. Her mother reported that J was a quiet girl who had a few friends but was a “homebird.” Then J formed a relationship with a man (T) she met through a friend also in his late teens. J became pregnant very soon after the relationship started. Her mother was shocked and very concerned as she had no liking for T sensing a difference in her daughter, in that she seemed afraid of him although she denied this was the case.

The couple moved into a flat near to J’s mother’s home and the baby (M) was born but it was obvious from the beginning that the baby had physical disabilities – diagnosed as cerebral palsy of a severe nature. The young parents and J’s mother were distraught as can be imagined. J’s mother did all she could to support the young family and ensure that baby M got all the medical support that he needed. However a few weeks after M’s birth J told her mother than she was not to visit the flat again as T didn’t like her and thought her interfering. J said she would try and bring M to see her mother when T was out. J’s mother was a feisty woman (I’ll explain how I know all this at a later stage) and most definitely had J and baby M’s best interests at heart. She refused to abide by T’s rules and continued to visit the family as her concern for J and baby M was increasing. T would usually absent himself when she visited, slamming the door and telling her to F off.

J arrived at her mother’s house one day with baby M and she had a badly bruised eye and was shaking and crying, saying that T had “lost the plot” and she was terrified of him. Her mother immediately said that she and the baby should not in any circumstances go back to the flat. They were both welcome to stay with her and she would tell T not to come near her daughter again. But before this could happen, J took a phone call from T and immediately rushed back to the flat. This kind of event happened several times and J’s mother was very worried and frustrated that J was clearly dominated by T. When baby M was aged 6 months, T was bathing him and held his head under the water, gripping him tightly around the neck. J was hysterical and dialled 999 and M was taken to hospital and T arrested, claiming he was only playing with the baby.

However on examination baby M was found to have bruising and old fractures to both of his legs. T was later charged with grievous bodily harm and given a custodial sentence of 2yrs 6 months. Fortunately baby M survived and was hospitalised for 3 weeks. Obviously CSs were involved and were not satisfied with J’s account that she was not aware that T was harming baby M. They initiated care proceedings and placed baby M with J’s mother (baby M’s MGM) Contact between J and the baby was allowed x 3 per week but always to be supervised by J’s mother. J’s mother did not believe that J was unaware that T was harming baby M but she was convinced that her daughter was dominated by T and would therefore be unable to protect the baby.

J was adamant that she would have no contact with T in prison or when he was released but her mother didn’t believe her and was more or less certain that she was visiting him in prison. She challenged her of course, but she denied emphatically that she would have anything to do with him after what he had done to baby M. Apparently he had told J that he had done it as it was the best thing for a kid like that with twisted arms and legs and wished that he had drowned in the bath. J blurted this out to her mother but later denied that he had made such comments.

When T was released from custody J’s mother kept a close watch on the flat to see if T was visiting J as she believed this to be the case. Within 3 months of T’s release J became pregnant again but denied that T was the father. J’s mother immediately involved CSs and advised that she believed T was the father although she obviously had no proof of this. J’s mother began to visit J at the flat but there was no evidence of T. However one day J’s mother’s suspicion was aroused as J asked her not to visit that day as she was having a friend to visit with her baby. J’s mother kept a watch on the flat and decided to stand outside and wait to see if T went in or came out. She waited for over 2 hours and in the lobby area and finally saw T leaving the flat.

J’s mother “saw red” and as he ran off, she gave chase (she was a very fit woman, a hillwalker and strong swimmer) – he eventually jumped on a bus and the chase ended. J’s mother immediately contacted the social worker and the police (as T was on licence) and admits to slapping her daughter across the face, as she was so disgusted with her. J was apparently hysterical but her mother’s only concern was baby M. and the unborn child. J was trying to convince her mother and the social worker that T had only been in the flat for a few minutes to collect some belongings, but no one believed her, especially as her mother had stood outside the flats for 2 hours. I did ask J’s mother what she would have done had she caught T and she admitted that she didn’t know, as her anger had taken over!

There was a pre birth Case Conference and it was decided to initiate care proceedings on the basis that the unborn child was likely to suffer significant harm, given the injuries to baby M and the fact that J was still in a relationship with T and it was likely that T was the father. It was made clear to J that whether he was the father or not, she had been unable to protect baby M, given her fear of T and his controlling and bullying behaviour, and hence this unborn baby was at risk of likely significant harm. She eventually admitted that T was the father.

The baby girl was born and placed with J’s mother. She was made subject to a Care Order. J’s mother later successfully applied for SGOs on both children. I undertook the assessment initially for kinship care of the children and later for an SGO.

What do these case studies demonstrate?

I hope that I have been able to demonstrate in the 3 cases above exactly why that wording was contained in the CA89 “likely to suffer significant harm” and not because someone looks into a crystal ball and thinks “Oh they look like they might abuse or neglect that child in the future, so we’d better ask the court for an Order to be on the safe side.”

I don’t understand why so many people talk of the injustice of “future emotional harm” – I don’t see how emotional harm (be it in the present or the future) can be a “stand alone” reason to give as a justification for seeking an Order to remove a child. If a child is physically abused, sexually abused or neglected, then they are by definition going to be emotionally harmed – they can’t not be…………..can they?

What do we mean by ‘significant harm’?

 

Your starting point in care proceedings is section 31 of the Children Act 1989. You can find the whole Act here or read what Wikipedia says about it.  For more detail about this issue from the social worker’s perspective, please see this helpful article

Section 31 of the Children Act allows a Local Authority (LA) ‘or authorised person’ to apply to the court for an order which makes it lawful to to put a child in the care of a LA, or under the supervision of a LA. At the moment, the only other ‘authorised person’ is the NSPCC.

It is NOT the social worker who decides whether or not there should be a care or supervision order. This is a decision for the Judge or the magistrates. They are only allowed to make a care or supervision order if :

  • they are  satisfied there is evidence (‘threshold criteria’)
  • which proves on the balance of probabilities, that:
  • the child is suffering OR;
  • is likely to suffer significant harm in the future AND;
  • this significant harm will be a result of either ‘bad’ parenting – likely to be seen as the parents’ fault; OR
  • the child is beyond parental control – which may not necessarily be seen as the parents’ fault.

[For discussion about what is meant by ‘beyond parental control’ see the case of P (permission to withdraw care proceedings) [2016] EWFC B2.]

The ‘significant harm’ has got to relate to what the parents are doing or likely to do when they are caring for their child. The court will consider the standards of a ‘reasonable parent’: see Re A (A Child) [2015] EWFC 11 and  Re J (A Child) [2015] EWCA Civ 222.

The court will look at two different issues:

  • how is the parent looking after the child? Is the kind of care they are giving the kind you would expect from a ‘reasonable parent’? or
  • Is the child out of control? for example, not going to school or running away from the parents and getting into trouble?

There is already quite a lot to unpick here.

  • What does ‘harm’ mean?
  • What does ‘significant’ mean?
  • What happens when the court is worried about risk of future harm?

What do we mean by ‘harm’ ?

Section 31(9) of the Children Act tells us that harm means:

  • ‘ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another’.

This last part about being exposed to someone else being badly treated, was added by the Adoption and Children Act of 2002. It is intended to cover such circumstances as a child who witnesses or hears someone else being hurt, for example if the parents are fighting or shouting at one another at home.

Development means ‘physical, intellectual, emotional, social or behavioural development’

Health means ‘physical or mental health’

Ill-treatment‘ includes sexual abuse and other forms of bad treatment which are not physical. This includes ’emotional harm’. This is the category of harm which probably cases most concern for a lot of people; they are concerned about what kinds of behaviour get put into this category. We will look at the issue of ’emotional harm’ more closely in another post.

 

What do we mean by ‘significant’ ?

Section 31(9) tells us what is meant by ‘harm’. But it doesn’t give a definition of what is meant by ‘significant’. The original guidance to the Children Act 1989, issued by the Department of Health,  stated that:

Minor shortcomings in health care or minor deficits in physical, psychological or social development should not require compulsory intervention unless cumulatively they are  having or are likely to have, serious and lasting effects on the child.

We can get further guidance from looking at Article 8 of the European Convention on Human Rights. Article 8 exists to protect our rights to a family and a private life. Article 8 makes it clear that the State can only interfere in family life when to do so is lawful, necessary and proportionate.

Proportionality is a key concept in family law. A one off incident – unless extremely serious, such as a physical attack or sexual assault – is unlikely to justify the making of a care order as the court would be unlikely to agree that a single incident would have long lasting and serious impact on a child. But the same type of incident, repeated over time may well have very serious consequences for the child.

Read Article 8 here. For further discussion about what is meant by proportionality, see our post here. 

There are some useful law reports where ‘significant harm’ has been discussed. For example, Baroness Hale stated in B (Children) [2008] UKHL 35:

20. Taking a child away from her family is a momentous step, not only for her, but for her whole family, and for the local authority which does so. In a totalitarian society, uniformity and conformity are valued. Hence the totalitarian state tries to separate the child from her family and mould her to its own design. Families in all their subversive variety are the breeding ground of diversity and individuality. In a free and democratic society we value diversity and individuality. Hence the family is given special protection in all the modern human rights instruments including the European Convention on Human Rights (art 8), the International Covenant on Civil and Political Rights (art 23) and throughout the United Nations Convention on the Rights of the Child. As Justice McReynolds famously said in Pierce v Society of Sisters 268 US 510 (1925), at 535, “The child is not the mere creature of the State”.

21. That is why the Review of Child Care Law (Department of Health and Social Security, 1985)) and the white paper, The Law on Child Care and Family Services (Cm 62, 1987), which led up to the Children Act 1989, rejected the suggestion that a child could be taken from her family whenever it would be better for her than not doing so. As the Review put it, “Only where their children are put at unacceptable risk should it be possible compulsorily to intervene. Once such a risk of harm has been shown, however, [the child’s] interests must clearly predominate” (para 2.13).

In 2013 the now Lady Hale stated in Re B (A child) 2013 UKSC 33

Significant harm is harm which is “considerable, noteworthy or important”. The court should identify why and in what respects the harm is significant. Again, this may be particularly important where the harm in question is the impairment of intellectual, emotional, social or behavioural development which has not yet happened.

The harm has to be attributable to a lack, or likely lack, of reasonable parental care, not simply to the characters and personalities of both the child and her parents. So once again, the court should identify the respects in which parental care is falling, or is likely to fall, short of what it would be reasonable to expect.

Sometimes, a lot of time is needed in care cases to argue about whether or not the harm in a particular case is serious enough to meet this statutory requirement. If the Judge decides there is no significant harm either being suffered now or likely to be suffered in the future, then he or she cannot make a care order or supervision order.

If he or she decides that there is enough evidence of significant harm, we move to the second stage of the necessary legal test – whether or not to make a care or supervision order is in the child’s best interests. This is called the ‘welfare stage’ of the test and we will examine this in another post.

 

Different types of abuse which can cause significant harm

In some cases it is very easy to see that a child has already suffered significant harm, for example when a child has been sexually abused or physically attacked. The court is likely to have clear and first hand evidence in the form of reports from doctors or the police who have examined or interviewed the child. The majority of people agree that being attacked or sexually abused is likely to be very harmful to children.

The more difficult cases involve issues of neglect and emotional abuse where it is hard to find one particular incident that makes people worried – rather it is the long term impact on the child of the same kind of harm continuing. These cases are particularly difficult when it is also clear that there are positives for the child in his or her family and the court has to decide whether the positive elements of family life are outweighed by the bad, or whether the family can make necessary changes quickly enough to meet the needs of the child.

For example, if on occasion you get angry with your child and shout at him or smack him it is highly unlikely your child would be considered at risk of significant harm if for the majority of the time you are loving and patient. But imagine a child who is shouted at and hit on a daily basis. It is not difficult to see how living in such an environment is likely to cause that child significant emotional or even physical harm.

See what the House of Commons Education Committee said about the child protection system in 2012.

Table 1: Children and young people subject to a Child Protection Plan, by category of abuse, years ending 31 March

Category of abuse

2006

2007

2008

2009

2010

2011

Neglect

11,800

12,500

13,400

15,800

17,200

18,590

Physical abuse

3,600

3,500

3,400

4,400

4,700

4,820

Sexual abuse

2,300

2,000

2,000

2,000

2,200

2,370

Emotional abuse

6,000

7,100

7,900

9,100

11,400

11,420

Multiple

2,700

2,700

2,500

2,900

3,400

5,490

Total

26,400

27,900

29,200

34,100

39,100

42,690

You can see from the Committee’s figures that the most common cause for concern about children in every year was the issue of neglect – but we can see a significant and consistent rise in number of cases of emotional abuse. The NSPCC confirmed that in 2015:

Neglect is the top reason why people contact the NSPCC Helpline with their concerns about a child’s safety or welfare – and this has been the case since 2006. In 2014–15 there were 17,602 contacts received by the NSPCC Helpline about neglect (3,019 advice calls and 14,583 referrals), an increase on the previous year13.

In 2012, the Education Committee examined the issue of neglect from paragraph 41 in their report and said:

41. Neglect is the most common form of child abuse in England. Yet it can be hard to pin down what is meant by the term. Professor Harriet Ward told us that, based on her research into what was known about neglect and emotional abuse, “we definitely have a problem with what constitutes neglect” and that “we need to know much more about what we actually mean when we say neglect”. Phillip Noyes of the NSPCC agreed that “There is a dilemma with professionals, and indeed the public, about what comprises neglect, what should be done and how we should do it”. He went on to explain his belief that: “at the heart of neglect […] is a lack or loss of empathy between the parent and child”.

42. There are two statutory definitions of neglect: one for criminal and one for civil purposes. Neglect is a criminal offence under the Children and Young Persons Act 1933 where it is defined as failure “to provide adequate food, clothing, medical aid or lodging for [a child], or if, having been unable otherwise to provide such food, clothing, medical aid or lodging, he has failed to take steps to procure it to be provided”. Action for Children has called for a review of this definition, declaring it “not fit for purpose” because of the focus on physical neglect rather than emotional or psychological maltreatment. Action for Children also believe that the definition leaves parents unclear about their responsibilities towards children and seeks only to punish parents after neglect has happened rather than trying to improve parenting.

[….]

The civil definition of neglect which is used in child and family law is set out in the Children Act 1989 as part of the test of ‘significant harm’ to a child. This is expanded upon in the previous Working Together statutory guidance which describes neglect as:

the persistent failure to meet a child’s basic physical and/or psychological needs, likely to result in the serious impairment of the child’s health or development. Neglect may occur during pregnancy as a result of maternal substance abuse. Once a child is born, neglect may involve a parent or carer failing to provide adequate food, clothing and shelter (including exclusion from home or abandonment); protect a child from physical and emotional harm or danger; ensure adequate supervision (including the use of inadequate care-givers); or ensure access to appropriate medical care or treatment. It may also include neglect of, or unresponsiveness to, a child’s basic emotional needs.

  • With regard to violence in the home between adults there is some useful information from the Royal College of Psychiatrists about the impact upon children of domestic violence here.
  • Read what we say about emotional abuse here.
  • Further information about the impact of neglect from research at Harvard University. 

 

Future risk of harm – what do we mean by ‘likely to suffer’ ?

Simply to state that there is a “risk” is not enough. The court has to be satisfied, by relevant and sufficient evidence, that the harm is likely

The most difficult cases of all are where a child hasn’t yet suffered any kind of harm but the court is very worried about the future risk of harm. It is this category which has caused most concern to those who worry about the child protection system as they feel strongly it is not fair to a parent to punish him or her by removing their child for something they haven’t yet done.

As Dr Claire Fenton-Glyn explained in her recent study on the law relating to child protection/adoption in the UK, presented to the European Parliament in June 2015:

A major problem with the law prior to 1989 was that it required proof of existing harm, based on the balance of probabilities. The local authority could not take a pre- emptive step to protect a child from apprehended harm, causing significant difficulties, in particular with newborn babies. As such, the inclusion in the Children Act of the future element of “is likely to suffer” was an important innovation, introduced to provide a remedy where the harm had not occurred but there were considerable future risks to the child. However, this has also been the cause of some controversy, as the answer as to whether a child will suffer harm in the future is necessarily an indeterminate and probabilistic one.

You can read about what the Supreme Court decided in a case like this in re B in 2013 where the court had to grapple with the issue of the risk to the child of future emotional harm.

Lady Hale said from para 193:

I agree entirely that it is the statute and the statute alone that the courts have to apply, and that judicial explanation or expansion is at best an imperfect guide. I agree also that parents, children and families are so infinitely various that the law must be flexible enough to cater for frailties as yet unimagined even by the most experienced family judge. Nevertheless, where the threshold is in dispute, courts might find it helpful to bear the following in mind:


(1) The court’s task is not to improve on nature or even to secure that every child has a happy and fulfilled life, but to be satisfied that the statutory threshold has been crossed.


(2) When deciding whether the threshold is crossed the court should identify, as precisely as possible, the nature of the harm which the child is suffering or is likely to suffer. This is particularly important where the child has not yet suffered any, or any significant, harm and where the harm which is feared is the impairment of intellectual, emotional, social or behavioural development.


(3) Significant harm is harm which is “considerable, noteworthy or important”. The court should identify why and in what respects the harm is significant. Again, this may be particularly important where the harm in question is the impairment of intellectual, emotional, social or behavioural development which has not yet happened.


(4) The harm has to be attributable to a lack, or likely lack, of reasonable parental care, not simply to the characters and personalities of both the child and her parents. So once again, the court should identify the respects in which parental care is falling, or is likely to fall, short of what it would be reasonable to expect.


(5) Finally, where harm has not yet been suffered, the court must consider the degree of likelihood that it will be suffered in the future. This will entail considering the degree of likelihood that the parents’ future behaviour will amount to a lack of reasonable parental care. It will also entail considering the relationship between the significance of the harmed feared and the likelihood that it will occur. Simply to state that there is a “risk” is not enough. The court has to be satisfied, by relevant and sufficient evidence, that the harm is likely: see In re J [2013] 2 WLR 649.

Therefore, if the court is worried about things that happened in the past and wants to use those events as a guide to future risk of harm, it must be clear about what has actually happened in the past – you cannot find a risk of significant harm based on just ‘suspicions’ about what might have happened before.

See further the Supreme Court decision of Re S -B [2009].

Baker J commented in 2013:

In English law, the House of Lords has now concluded definitively that in order to determine whether an event has happened it has to be proved by the person making the allegation on the simple balance of probabilities. Where the law establishes a threshold based on likelihood, for example that a child is likely to suffer significant harm as a result of the care he or she would be likely to receive not being what it would be reasonable for a parent to give, the House of Lords has also concluded that such a likelihood, meaning a real possibility, can only be established on the basis of established facts proved on a balance of probabilities.

 

Please let us know if you think we should add something to this or if anything isn’t clear.