A couple have won their appeal to have care and placement orders for their daughter set aside because the judge had relied too much on their concession that her older brothers might pose a sexual risk.

The case involved a mother who had a diagnosed learning disability. The father also had learning difficulties.

Their youngest daughter, referred to as H, was born in 2021. She had three brothers aged 23, 19 and 16, and a sister aged 13.

The local authority had been heavily involved with the family since 2011.

There were concerns regarding the children’s relationship with associates of the family, and allegations of aggressive and sexualised behaviour by the brothers.

Between 2018 and February 2021, the sister and younger brothers were made subject to child protection plans based on a risk of sexual harm. The children were not to have unsupervised contact with the elder brother, and the sister was not to be left alone with any of her brothers.

Following H’s birth, she was made subject to an interim care order but remained at home with the parents under a working agreement.

H was seen to be developing well with age-appropriate behaviours. There were no concerns about the mother’s basic childcare and professionals observed emotional warmth and affection between the mother and H.

In September 2022, the care and placement orders were made in respect of H.

The parents had conceded that the Children Act 1989 s.31 (the Act) threshold criteria were met. The judge noted that there had been no findings on any allegation of sexual abuse and that the allegations could not therefore be dealt with as if they were proven fact. 

However, in making the orders, he concluded that H was likely to be exposed to a real and significant risk of emotional and physical harm if she were to remain in her parents’ care.

The Court of Appeal overturned that decision.

It held that the Act required the court to consider any harm which the child “is” at risk of suffering, not “is possibly” at risk of suffering. The risk had to be established based on proven fact.

The judge had failed to subject the evidence to the degree of rigorous scrutiny required.

The starting point should have been, first, to identify the level of support needed by the family, then to ascertain what should be done under the local authority’s obligations, and then to determine whether, with that in place, the child’s welfare would be met.

That involved a careful assessment of what the package would look like and how practical it was.

The judge’s analysis was insufficient to entitle him to conclude that only adoption would meet H’s welfare needs. The orders were set aside, and the matter remitted for reallocation to another judge.

Case citations: H (Parents with Learning Difficulties: Risk of Harm), Re Court of Appeal (Civil Division)

[2023] EWCA Civ 59 Baker LJ Warby LJ Falk LJ

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