Family Law - 1989 Children Act - Essay Example

?Family Law Introduction It is would be a tragedy both to a family and the child in an instance where a child is removed from a parent basing on a wrong allegation or finding. Likewise, no less a tragedy result, if a child is not removed from a parent and then suffers serious harm or even death. In an effort to strike a balance in child protection, the interpretation of jurisprudence in section 31 of the 1989 children Act has ensued a number of attempts by the courts to make viable interpretations for purposes of child protection in a approach that is compatible with human right principles as well as the rule of law that informed the drafting of the statute1. A case in mind that made an attempt to strike such a balance in child protection and the importance of careful interpretation of the requirements of S.31 of the Children Act 1989 is the case of Lancashire County Council v B in which court noted that: “In human terms, there is usually a difficulty in arriving at the right conclusion. Where the (criteria) threshold are attained and the court makes an order in respect of such, it may be exposing one child to the likelihood of removal from parents who have done no wrong and who poses no risk… and if the court dismisses the application on the other hand, it shall be without a doubt condemning one child to go back to parents who are serious and obvious risk that is not assessed” It is both necessary and appropriate for courts to re examine the decision making process and risk assessment when approaching the introduction of a more coherent processes of case management for purposes of highlighting the key concerns as well as assist to resolve and narrow them expeditiously with regard to the best interest of the child. There has been suggestions that a rational and measured debate need to be undertaken to determine whether or not the court in interpreting the requirements of a likelihood or risk of harm, outlined under section 31 of the Children Act of 1989 should make findings of fact on the balance of probability which is the civil standard of proof or otherwise. In a recent case of Re O & N, Re B Lord Nicholls of Birkenhead described the desolate difficulty that underpins the jurisprudence of 1989 Children Act. In his judgment, Lord Nicholls was of the view that: “Often than not, tribunals and courts in interpreting the requirement threshold outline under section 31 0f the Act have constantly have to decide whether or not an alleged event actually took place. In his wise decision, Lord Nicholls further observed that as a general rule where there is a possibility that a past event might have taken place then that is proof enough to the requisite standard or threshold and the law regards such an incident as definitely having taken place” 2 The legal implication of such a decision by the court is that the determination should be made following the statutory, legal policy or otherwise. Consequently, determination of such an issue is susceptible to change since it is the judiciary and not the legislature that sets the policy and it is still in the hands of the court to reconsider the viability solution for the problem. In the case of Lancashire County Council and Another v. Barlow and Another and One Other Action Lord Nicholls of Birkenhead stated that the court is empowered under section 31(1) of the 1989 Children Act to make an order putting the child under the local authority supervision or placing him or her under the care of local authority, or even under the care of a probate officer. Nevertheless, certain minimum conditions must be met before the court making such an order this conditions are usually referred to as threshold conditions. These threshold conditions are outlined under section 31(2) the 1989 Children Act which reads: A care order or a supervision order may be made by a court if it satisfied­_ a); that the child in question is suffering, or is likely to suffer, substantial harm; and b). that the harm, or possibility of harm, is actually attributable to the care accorded to the child, or the care likely to be given to the child in the event the order were not made, and the care not being what it would be rational to suppose a parent to give the child; or where the child is beyond control of the parent. In the aforementioned case, Lord Nicholls of Birkenhead further stated that once the threshold conditions or minimum conditions are met and the court proceeds to mull over whether or not to implement its discretionary powers to make a supervision order or a care order, its overriding consideration must be the welfare the child. The Act defines the term harm under section 31(9). The court further noted that in the interpretation of section 31 of the Children Act of 1989, particular attention should be paid on section 1(3) of the Act, which sets out the Childs’ welfare checklist. The welfare checklist under the foregoing section include consideration of any harm that the child is at risk of suffering or any harm that the child concerned has suffered and the capability of each of the child’s parent to satisfy the needs of the child3. Accordingly, the courts findings in regard to the threshold conditions or minimum conditions as stipulated by the Act, there are then used in the consideration of the welfare needs of the child. Thus, according to section 1(5) of the Children Act of 1989 the court cannot undertake to make an order not unless it deems it fit that so doing would be the in the best interest of the child than not making an order at all4. In interpreting section 31(2) (b), courts have held that the phrase ‘attributable to’ in the section connotes a casual relationship between the possibility of harm or the harm itself on the one hand, and the child being clear of parental control, likely care, or care on the other hand. In Re H and others [1996], court noted that the requirement of section 31 of the Children Act 1989 is that court must be satisfied that the child concerned was likely to significantly suffer harm if the court made the care order. However, this did not necessitate a finding by the court to show that such harm was more probable than not, but rather it would be sufficient if it is shown that the child was likely to suffer a real possibility of sexual harm. The court further noted that the burden of proving such possibility lay on the applicant while the standard of proving the relevant facts should be on the balance of probabilities5. Courts have also noted that under section 32 (2) (b) (i) the care likely to be given or the care actually given must full below a level that is objectively reasonable. It has been adjudged that the aforementioned level is the care that any reasonable parent would bestow to the child in issue. The section does not therefore imply that the parent is at fault in the event that there is lack of a reasonable standard of parental care. This is because failure to provide such reasonable standard care to the child was beyond the parents’ control. In the case of Re B( care proceedings: standard of proof) Lord BARONESS HALE OF RICHMOND stated that it is easy enough to state the unacceptable risk of harm principle but it is very difficult to put it down in the language of the statute. In the interpretation of the term ‘is likely to suffer significant harm’ under section 31 of the Children Act of 1989 the court should predict from the facts that are already in existence. These facts may include those things that have occurred in the past, facts about the personalities and characters of the individuals involved, or even what such individuals have done and said in the past. In interpreting section 31 of the 1989 Children Act, Wall J. in the case of re G (A Minor) (Care Order: Threshold Conditions) observed that: the inescapable interpretation of section 31 of the Children Act in his wise judgment is that the court has to fully contented by the adduced evidence that the substantial harm suffered by the child is related to the absence of care, or to the care provided to the child by the parents. These parents or parent must be the ones the order is sought against6. The attributable condition under section 31 of the Act is met in the event that the harm is attributable to the lack of appropriate care to the objective standard set out in that condition. Lord Justice Robert Walker in this regard stated (at [2000] 2 W.L.R. 346, 356) that; with the increase in unmarried relationships and broken marriages coupled with economic hardships especially on mothers to stay put in employment despite having young children, the responsibility of taking care of the children is usually shared between separated parents often living apart from each other, Unofficial and official child minders, or even grandparents and other relatives. In such instances where the responsibility of taking care of children is shared and the child happens to suffer significant harm due to absence of proper care, the child in issue must not be left at risk on the basis that the court is not satisfied as to which part of the childcare network that has failed. This simply implies that the court consider the best interest of the child. Regarding such cases where there is a network of child care the interpretation of section 31 of the Children Act would take the course of apportioning the responsibility of the harm suffered by the child concerned between the various cares both irrelevant as well as imponderable whether joint or alternated. As observed by Purchas LJ in Re F (Minors) a real possibility and not a mere probability has to be shown and in that way the child’s interest will be safeguarded in an interpretation of section 31 of the Children Act of 1989. This means that whether there was a real likelihood of a past incident having taken place or a future occurrence happening had to be construed on the basis of evidence. Consequently, a real possibility would be sufficient but fanciful possibilities or speculations could not suffice7. While derogating from the interpretation approach used by the lower court in the case of Re H & R, Lord Nicholls stated that it would be disastrous if a case such as that had proceeded to the stage of welfare on the basis that neither parents while considered separately the interpretation that none of the parent has been confirmed to be a perpetrator of the significant harm to the child. Consequently, the conclusion that the child is not at any risk or likely risk if given to either of them basing on such findings or construction is grotesque8. House of Lords in the interpretation of section 31 of the Children Act have stated that the phrase care given to the child basically refers to the care given by a child’s parent, parents, or even the care provided by any other primary carers. In instances where the care is shared and there is a difficulty in determining who is responsible for the significant harm suffered by a child, the court must apply different consideration from the norm. in such instances, the phrase care given to the child must be constructed to include not only the care provided to the child by the parents as well as the other primary carers, but also the phrase should include the care given any other carers who are involved in the care network. In an effort to avoid undesirable consequences, such an interpretation out to be taken as this interpretation approach pull off that necessary outcome while in the like manner, encroaching to the underpinned minimum conditions set out under section 31(2) of the Children Act of 1989. Since the legislature never foresaw shortcoming of the section, it is the duty of the court to apply the language of the statute for purposes of interpreting the unforeseen circumstances in the best way possible to give effect to the purposes the statute was legislated to accomplish9. Conclusion Courts have held that they are empowered under section 31(1) of the 1989 Children Act to make an order putting the child under the local authority supervision or placing him or her under the care of local authority, or even under the care of a probate officer. Nevertheless, certain minimum conditions must be met before the court making such an order this conditions are usually referred to as threshold conditions. These conditions include: that the child in question is suffering, or is likely to suffer, substantial harm; and that the harm, or possibility of harm, is actually attributable to the care accorded to the child, or the care likely to be given to the child in the event the order were not made, and the care not being what it would be rational to suppose a parent to give the child; or where the child is beyond control of the parent10. The court further noted that in the interpretation of section 31 of the Children Act of 1989, particular attention should be paid on section 1(3) of the Act which sets out the Childs’ welfare checklist. The welfare checklist under the foregoing section include consideration of any harm that the child is at risk of suffering or any harm that the child concerned has suffered and the capability of each of the child’s parent to satisfy the needs of the child. In interpreting section 31(2) (b), court in the case of in the case of Re H & R, Lord Nicholls stated that the phrase ‘attributable to’ connotes a casual relationship between the possibility of harm or the harm itself on the one hand, and the child being clear of parental control, likely care, or care on the other hand. Accordingly, the connection between the casual likelihood need not be that direct, sole, or dominant cause and effect and that a causal connection that is contributory meet the requirements. Bibliography 1. Cobley, C, Lowe, N, The statutory threshold under s.31 of the children’s act 1989 time to take stock International Journal of Law, Policy and the Family, Vol. 15, No. 1, pp. 135-158 2. . Hayes, M, Reconciling Protection of Children with Justice for Parents in Cases of Alleged Child Abuse. Vol. 17, No 1, pp 1–21, DOI: 10.1111/j.1748-121X.1997.tb00657.x, 1997. 3. Bainham, A, striking the balance in child protection. The Cambridge Law Journal, 68, pp 42-45 doi: 10.1017/S0008197309000324, 2009. 4. Herring, J, The suffering children of blameless parents’ (2000) 116 The law quarterly review.116 5. Mirfield, P, How Many Standards of Proof are there, International Journal of Law, Policy and the Family, Vol. 19, Issue 2, pp. 163-175, 2005. 6. Bainham, A, Uncertain perpetrators and siblings at risk. The Cambridge Law Journal, 70, pp 508-511 doi: 10.1017/S0008197311000791, 2011. 7. Hayes, M, Reconciling Protection of Children with Justice for Parents in Cases of Alleged Child Abuse. Vol. 17, No 1, pp 1–21, DOI: 10.1111/j.1748-121X.1997.tb00657.x, 1997. 8. Bainham, A, Attributing harm: child abuse and the unknown perpetrator. The Cambridge Law Journal, 59, pp 421-471, 2000. 9. Miller, M, Through the Eyes of a Father: How PRWORA Affects Non-Resident Fathers and Their Children International Journal of Law, Policy and the Family, Vol. 20, No. 1, pp. 55-73, 2006. 10. Cobley, C, the Quest for Truth: Substantiating Allegations of Physical Abuse in Criminal Prosecutions and Care Proceedings. International Journal of Law, Policy and the Family, Vol. 20, Issue 3, pp. 317-343, 2006. Read More