Introduction

The case of Re H (Parents With Learning Difficulties: Risk of Harm) [2023] EWCA Civ 59 presented before the England and Wales Court of Appeal (Civil Division) addresses critical issues surrounding care and placement orders under the Children Act 1989. The appellant, referred to as "H," is a 22-month-old child whose parents possess cognitive difficulties, with the mother diagnosed with a learning disability and the father having lesser cognitive impairments. The family has a history of local authority involvement due to concerns over the welfare of H and her three older siblings, all of whom also exhibit cognitive impairments and have been subject to various protective measures. The key issues in this appeal revolve around whether the original court correctly assessed the risk of harm to H and whether the appropriate level of support was considered to allow her to remain with her parents.

Summary of the Judgment

The Court of Appeal, led by Lord Justice Warby, examined the lengthy judgment rendered by HH Judge Lopez, which extended over 138 pages. The original judgment concluded that H should be placed for adoption due to the significant and multifaceted risks of harm posed by her familial environment. The appellant's parents challenged this decision on six grounds, primarily arguing that the court improperly assessed the risk of sexual harm and failed to adequately consider the level of support required to enable them to care for H.

Upon review, the Court of Appeal found merit in the appellants' arguments. It was determined that the original judgment improperly relied on the possibility of risk without sufficient factual basis, particularly regarding allegations of sexual abuse by H's older siblings. The appellate court emphasized the necessity for a proven risk of harm rather than speculative possibilities, especially when assessing the welfare of a vulnerable child. Consequently, the appeal was allowed, the care and placement orders were set aside, and the case was remitted for reconsideration by a different judge.

Analysis

Precedents Cited

The judgment extensively referenced several key precedents that shape the framework for care proceedings:

• Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 – Established the standard of proof required in sexual abuse cases within care proceedings.
• Re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35 – Clarified the threshold criteria under the Children Act 1989, emphasizing the need for proven risk rather than mere suspicion.
• Re S-B (Children) (Care Proceedings: Standard of Proof) [2009] UKSC 17 – Reinforced the necessity for courts to base decisions on a balance of probabilities, not on possibilities.
• Re G and A (Care Order: Freeing Order: Parents with a Learning Disability) [2006] NIFam 8 – Highlighted the importance of "parenting with support" rather than automatic removal of children from parents with learning difficulties.
• Re D (A Child)(No.3) [2016] EWFC 1 – Emphasized the state's obligation to provide appropriate support to enable children to remain with their families.
• Re B-S (Children) (Adoption: Leave to Oppose) [2013] EWCA Civ 1146 – Stressed the need for rigorous scrutiny of local authority proposals, especially regarding resource allocation and support plans.

These precedents collectively underscore the judiciary's commitment to upholding the welfare of the child through evidence-based assessments, ensuring that removal from the family is a last resort.

Legal Reasoning

The appellate court's reasoning centered on the misapplication of the standard of proof concerning the risk of harm to H. The original judge had accepted the parents' concession that there was a possibility of sexual abuse by H's older siblings, thereby establishing a risk of harm under the Children Act 1989. However, the Court of Appeal found this insufficient, noting that the Act requires harm to be established on a balance of probabilities, not merely as a possibility.

Furthermore, the original judgment heavily relied on the professional opinions that the level of support required for the parents amounted to "substituted" or "corporate" parenting, which was deemed unsustainable and not in H's best interests. The appellate court criticized this approach, emphasizing that a detailed analysis of the support package, its feasibility, and its impact on both the parents and H was lacking. The court highlighted the importance of exploring all support options before deciding on placement removal.

The appellate court also underscored the necessity for the local authority to provide a clear and practical support plan, aligning with the principles outlined in Re G and A and Re B-S. The failure to adequately outline how the local authority would support the parents in meeting H's needs rendered the original judgment flawed.

Impact

This judgment reinforces the judiciary's stringent adherence to the standard of proof in care proceedings, particularly concerning allegations of sexual harm. It serves as a precedent that mere possibilities do not suffice in establishing risk; concrete evidence is imperative. Additionally, the case accentuates the importance of comprehensive and feasible support plans for parents with learning difficulties, ensuring that children are only removed from their families when all other support avenues have been thoroughly explored and exhausted.

Future cases will likely reference Re H for its clear stance on the necessity of proven risk and the obligation of local authorities to provide substantial support before considering placement orders. It also serves as a cautionary tale against overly lengthy and evidence-heavy judgments that may obscure essential reasoning, advocating for clarity and conciseness in judicial decisions.

Complex Concepts Simplified

Threshold Criteria under the Children Act 1989

The Children Act 1989 sets out the legal framework for care and protection of children. The threshold criteria under Section 31(2) determine whether a court should intervene in a child's upbringing. Specifically:

• Significant Harm: The child is suffering or is at risk of suffering significant harm.
• Attribution of Harm: The harm is due to the care not being what is reasonably expected from a parent, or the child being beyond parental control.

Importantly, the court must establish these criteria on a "balance of probabilities," meaning it is more likely than not that the harm has occurred or will occur.

Standard of Proof

The standard of proof in civil cases, including care proceedings, is the balance of probabilities. This means that the evidence must show that something is more likely to be true than not. In the context of risk of harm, it is insufficient for the court to act on mere suspicions or possibilities; there must be a factual basis supporting the likelihood of harm.

Substituted or Corporate Parenting

Substituted parenting refers to situations where professionals, rather than the biological parents, take on the primary role of parenting. This can occur through extensive support and intervention from social services. While intended to aid the family, excessive substituted parenting can lead to the child feeling alienated from their family and can be detrimental to their emotional well-being.

Adverse Childhood Experiences (ACE)

Adverse Childhood Experiences are potentially traumatic events that occur in a child's life, such as abuse, neglect, or witnessing domestic violence. These experiences can have long-term effects on a child's health and well-being.

Conclusion

The Court of Appeal's decision in Re H [2023] EWCA Civ 59 serves as a pivotal reaffirmation of the standards governing care and placement orders. By emphasizing the necessity of proven risk over speculative possibilities, the court ensures that children's welfare remains the paramount concern in judicial decision-making. Additionally, the judgment highlights the critical role of comprehensive support plans for families with learning difficulties, advocating for measures that assist rather than supplant parental roles. This case not only clarifies the application of legal standards in care proceedings but also underscores the judiciary's responsibility to balance protection with support, fostering environments where children can thrive within their families whenever safely possible.