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Calculating risk – when courts take children from parents

Deciding whether children should be taken from their parents for their own safety is one of the most difficult and heart-breaking decisions courts ever have to make.

It’s an ever-growing problem with the number of children in care at a record 72,670, according to the latest government figures.

The law is clear in always putting the interests of children first. This means local authority social services must intervene if they feel that a child is not safe with its parents, or if the parents are unable to look after them for reasons such as illness or family problems.

There could be several reasons why a child may not be safe with its parents. The mother or father, or sometimes both, could have mental or physical health issues, or severe problems with alcohol or drug abuse. Even if the parents themselves pose no threat, there may be another family member whose behaviour could put the child in danger.

This could typically happen when the mother separates from the father and finds a new partner, a person who may turn out to be physically or sexually abusive.

In some cases, the problem may not lie so much with the parents as the child itself. Sometimes children may place themselves in danger through behaviour that the parents cannot prevent. This could be due to mental health problems, or through developing a drug abuse problem or becoming involved in violent crime.

Although the process of placing a child in care is usually administered by social services departments, they cannot make these decisions alone. To separate a child from its parents, they must apply to the court for a care order under the Children Act 1989.

In such cases, a child may be placed with another relative, a foster carer or in a children’s home.

While ensuring that the child’s safety is the top priority, the courts will also be keen to avoid breaking the child-parental bond unless necessary.

It can be a very difficult balancing act, as illustrated in recent case before the Court of Appeal.

It involved a baby born to a 17-year-old mother and a 16-year-old father. Both parents had troubled personal histories. The mother had herself been the subject of care proceedings. During her pregnancy, she had committed several violent crimes, had been assaulted by her brother, had engaged poorly with pre-birth services and had smoked skunk cannabis.

The father’s whereabouts were unknown at the time of the baby’s birth. He was wanted by the police and was later sentenced for armed robbery.

The local authority sought a care order because it felt there was a likelihood of future significant harm to the baby.

The judge heard evidence showing that the mother had done reasonably well in the mother and baby placement and that no harm had come to the baby since birth. Emphasising that risks and concerns were not enough, he was impressed by her performance in court and concluded that there was no likelihood of significant harm.

He made a private law order that the baby should remain living with the mother.

However, the Court of Appeal overturned that decision, showing just how finely balanced these issues can be.

In giving their ruling, the Appeal judges provided a baseline for further decisions.

They held that the judge had been wrong to consider only the mother’s behaviour towards the baby

The local authority’s case was based not only on events which had taken place in the baby’s lifetime, but on events occurring before she was born. By limiting his consideration to how the mother had behaved while in the placement, the judge had excluded the solid wall of evidence concerning the parents’ personal histories.

If he had looked at all the evidence, it would have been overwhelmingly clear that there was a likelihood of the baby suffering harm.

The professional evidence did not consist of expressions of risk and concerns with no basis in fact; the facts were plain and the likelihood of harm arose from them. The risks of significant harm could not sensibly be ignored.

The judge’s decision was set aside, and the baby was taken into care.

Each case will, of course, depend on the individual circumstances but while the courts will be reluctant to break the child-parental bond, they will always put the interests of the child and its personal safety first.

If you would like more information or advice about the issues raised in this article, or any aspect of family law please contact our expert legal team on 0208 004 0065, by email at [email protected] or using the form below.

Case Citations: RE K (A CHILD BY HER LEGAL GUARDIAN) (2018)

CA (Civ Div) (Floyd LJ, Peter Jackson LJ) 04/09/2018

The contents of this article is general information only. The information in this article is not legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should obtain independent expert advice from qualified solicitors such as those within our firm.

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