Supreme Court Ruling ….’at risk of significant harm’?

The Supreme Court in Re B (A Child) has recently dismissed an appeal by parents against a Care Order made in respect of their child on the basis of a risk to her of future psychological or emotional harm under section 31 of the Children Act 1989 and upheld the Local Authority’s (Social Services) plan of adoption for her.

The child concerned was removed from her parents at birth under an interim care order. The parents continued to have regular contact with the child and formed a good relationship with her.

Mother suffered from various medical conditions and the trial Judge found that if the child was placed in her parents’ care, there was a risk, due to her mother’s conditions, that the child would be presented for and receive unnecessary medical treatment, may grow up to copy her mother’s behaviour and be confused at the difference between the real world and her mother’s dishonest representation of it. As a result, the court decided that there was no way this child could be protected in her parent’s care from the feared harm other than a care order being made in favour of the Local Authority with a view to the child being adopted outside her birth family.

Is this significant harm?

Under section 31(2) of the Children Act 1989, a court can only make a care order if 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 to him; or

(ii)the child’s being beyond parental control.

Feared harm = likelihood of harm?

The parents in this case appealed to the Court of Appeal who upheld the initial decision to order a Care Order. The parents then appealed to the Supreme Court. The Supreme Court by a majority of 4:1 (Lady Hale dissenting) dismissed the appeal.

The Court found that the High Court judge was entitled to conclude that the section 31(2) criteria (known as the “threshold criteria”) had been met for making a Care Order. The Court held that a “likelihood” of significant harm means no more than a real possibility that it will occur, but a conclusion to that effect must be based upon a fact or facts established on the balance of probabilities. “Harm” means ill-treatment or impairment of health or development, and development includes emotional development.

If social services are involved with your family whether in Court proceedings or at Case Conference or Pre-Proceedings Meetings and you are not sure what to do or where to turn, contact a member of our very experienced care team who will be more than willing to help and advice through this difficult time.