How the Courts Have Interpreted the Requirements Of Section 31 of the Children Act 1989 - Assignment Example

The Children Act 1989 made important changes about the criteria used to decide whether a child is taken into care. With reference to decided cases, discuss how the courts have interpreted the requirements of section 31(2) of the Children Act 1989. The Children Act 1989 (CA) was implemented in 1991 to revolutionise proceedings regarding the welfare of children in England and Wales1. Hester argues that the Children Act 1989 re-defined child care law by introducing new measures for working with children and families in both public and private family law2. Generally speaking, the CA embodies a fresh approach to working with and for children and overall aim of upholding the relationship between parent and child. Indeed the new system of private ordering was intended to promote and continue parental responsibility post divorce with minimum interference by the court3. Moreover, in the consultation process, Lord Mackay asserted that “while the law can sever the legal bond between husband and wife, the law in family disputes should do nothing that appears to weaken bond between parent and child4”. Moreover, the consultation process research indicates that the most important factor in child’s adjustment is the quality of post divorce arrangements for all family members, which was highlighted in the official papers that led to the 1989 Act, such as Law Com No. 172, “Review of Child Law – Guardianship and Custody”5. A vital element in a child’s adjustment is a continuing relationship with both parents6. Children ultimately want two active involved parents7 and the July 2004 HMG Green Paper “Parental separation: Children’s needs and parent’s responsibilities”8 highlighted that it is vital to handle the process of contact and separation to reduce the impact of separation and divorce on children, which requires preservation of the parent/child bond wherever possible9. Nevertheless, the reality of problem areas outside the parameters of the overriding need to preserve parent/child contact is addressed through the rights of local authorities with regard to care proceedings under the CA. The CA expressly provides every local authority (LA) with the powers to fulfil its duty to “safeguard and promote the welfare of the child10”. In particular, section 31(1) of the CA provides LA’s with the right to apply to the courts for the imposition of a care order, which effectively transfers legal parental responsibility to the LA. However, section 31(2) provides that “a court may only make a care order or supervision order if it is satisfied- a) that 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”. Accordingly, the section 31(2) threshold must be crossed to justify the imposition of an order and the focus of this analysis is to critically evaluate the approach of the courts to the section 31(2) threshold, with contextual reference to case law. As in initial observation, the section 31(2) threshold must be considered in light of the significant principle of the CA of minimum intervention. Section 1(5) of the CA provides that “…no order should be made unless the court considers making an order to be better for the child than not making one”. In practice, this means that the court will only make an order if it believes it will have a beneficial impact on the welfare of the child11. Moreover, it is important to note the statistical data pointing to favourable outcomes in the interests of the child’s welfare when considering minimum intervention12. For example, Aldgate highlights that “forty-three percent of children placed on a child protection register could have been dealt with by voluntary means13” Furthermore, whilst the term “partnership” is not expressly included in the Children Act 1989, it is arguably implied, as a result of the application of sections 22 and 61, which require local authorities to “…consult with the child, the parents and any other relevant persons before making any decision in relation to the child.” The concept of partnership working is a relatively recent one in social work, and it signifies a shift from a situation where workers tried to resolve problems on behalf of families and impose solutions, to one involving more consultation, consent and co-operation. It requires the use of a key social work skill which is the ability to ask “…about and listen to the wishes and feelings of families and children…” The shift to partnership working was partly influenced by practice experience and research that demonstrated how a more co-operative approach can ultimately help to promote the welfare of the child14. Linked to the principles of minimum intervention and welfare is the principle in section 1(2) of the Act which asserts that “…delay in determining issues is likely to prejudice the welfare of the child.” Whilst courts may make every effort to adhere to this, legal proceedings can become protracted as evidenced by the ad hoc judicial approach to the section 31(2) threshold15. If considered in context, the CA overriding presumption of a no order principle indicates that there is no order unless the section 31 threshold is met. Moreover, section 8(1) of the Children Act 1989 provides that “When a court determines any question with respect to a …child… the child’s welfare shall be the court’s paramount consideration”. This was necessary in light of the statutory requirement under section 47 of the Children Act 1989, which provides that “A local authority has a duty to investigate where they “have reasonable cause to suspect that a child who lives or is found, in their area is suffering, or likely to suffer significant harm”. To this end, the CA provisions marked a change by replacing previous legislation intending to implement a simplified legal approach, which for the first time included consideration of the wishes and feelings of the child into the decision-making process16. However, the extent to which the wishes of the child actually reflect judicial determinations under section 31(2) remains the subject of debate17. Section 31(9) defines “harm” as ….ill treatment or the impairment of health and development” and health includes physical or mental health. However, the word “significant” is not defined and the Department of Health guidelines suggest that it can be a single event or “more often…. A compilation of significant events.”18 The definition of harm has been augmented by the amendments made by the Adoption and Children Act 2002, which makes it clear that witnessing domestic violence will constitute harm in the context of section 31 and expressly refers to “impairment suffered from seeing or hearing the ill treatment of others”. This is clearly a welcome measure, however ultimately the interpretation and practical application of section 31(2) is dependent on the judiciary as the only way that a local authority can take a child into care is by going to court and satisfying the threshold criteria set out in section 31(2). With regard to the term “suffering” the issue has arisen as to when the suffering has to take place for the threshold to be crossed19. This was determined in the leading case of Re M (A Minor) (Care Order: Threshold conditions)20. This was a decision of the House of Lords. In this case, M was born to unmarried persons and M’s mother had three other children all by different fathers. When M was four, his father violently killed his mother in the presence of all other children. M’s half siblings went to live with a maternal cousin (Mrs W) but M went into foster care as the cousin was unable to care for all four children. The local authority applied for a care order with a view to placing M for adoption. However, by the time of the hearing, Mrs W was coping and wanted to take care of M. The issue on appeal was whether M “was suffering” from significant harm in order to warrant a care order. Whilst it was clear that M had suffered harm, at the time of hearing M was no longer suffering from significant harm. However, the House of Lords held that the relevant date the criterion was satisfied was the date at which the local authority initiated the protection procedure, not the date of the hearing. Otherwise, protection would rarely be ordered if protective procedures once invoked prove to be satisfactory and the child was no longer at the date of the hearing suffering harm. The Re M decision raised policy issues as clarification of point of law regarding when the threshold conditions must be proved to be satisfied. However Bainham argues that the “there was more to it than this. The practical point of the care order in ReM itself was that it would enable social services to keep “a watching brief” on M’s situation and intervene quickly to remove from Mrs W should the need arise21”. Bainham further argues that this arguably undermines the residence order, where if granted parental responsibility would vested in Mrs W22. Moreover, the broader policy question was raised as to whether the state should “have the option of obtaining a compulsory order where the risk in fact has passed and there is no obvious future risk to the child23”. Bainham further argues that “surely the public law requirement of the Children Act is not intended to allow the State to remove children who are no longer at risk merely because it would have greater confidence in carers outside the family than those within it. The legislation is, after all, supposed to have a commitment to supporting the natural family and reuniting children wherever possible24”. However, whilst Bainham’s arguments clearly raise questions with regard to judicial “social engineering25” it would clearly undermine the purpose of the CA protection provisions if an application were to fail solely on grounds that the risk of sufficient harm was no longer operative at the date of the hearing, particularly in cases where the background environmental factors indicated a cogent risk of the harm occurring at some point in the future. This further highlights the inherent problem of legislating for difficult social issues within a coherent legal framework and the balancing act the judiciary must undertake in its approach to the section 31(2) threshold26. As such, this leads to an inherent difficulty of enforcing consistency due to need to address each case on individual circumstance. In any event, once the section 31(2) threshold has been crossed, this will not be sufficient per se to found a care order27. The court has to be convinced at the welfare stage that a care order is in the best interests of a particular child. To this end, the authority must convince the court in its prepared care plan as the court is not obliged to make an order28. Moreover, the fact that the threshold date is crossed when the authority first intervenes to protect the child does not mean that the authority cannot rely on subsequent evidence or later events29. For example, in the case of Re G (Children) Care Order: Evidence of Threshold conditions)30 the Court of Appeal held that the local authority was entitled to rely on information obtained after the date of intervention, (in this case expert assessments), and on later events if those things were capable of proving the state of affairs which existed at the time of the protective action31. Hale LJ emphasised that emergency and initial protection measures had to be taken before the full picture emerged. As a practical matter, the authority was bound to be able to rely at the hearing on matters which had come to light since protective action was taken and Hale LJ further commented: “Care cases, like all children cases, look to the future and not the past. Things are changing all the time while the case progresses. The local authority is not required to plead their case at the outset or indeed at all32”. However, Hale LJ asserted the importance of parents being made aware of the case that they were required to answer by the date of the hearing and approved the practice of requiring the local authority to make a clear statement of facts prior to the final hearing of the basis on which it alleged the threshold was crossed33, which is a welcome move towards pragmatism. With regard to the definition of “harm”, as stated above, section 31(9) of the CA refers to the ill treatment or impairment of health or development. Notwithstanding the Department of Health guidelines, the courts have applied a case by case approach, which is arguably necessary to address the variances of each individual application and ensure a proper application of the section 31(2) threshold. For example, in the case of Humberside CC v N34 it was held that “significant” should not be equated with “substantial” and should be “considerable”, “noteworthy” or important35. Clearly, this indicates a wide variety of circumstances highlighting the tension between promoting legal certainty and doing justice to the purpose of the section 31(2) threshold. Indeed in the case of Newham London Borough Council v AG36 the court was concerned with the statutory threshold in section 31 that the child is likely to suffer significant harm. Sir Stephen Brown commented that this was not to be equated with “on the balance of probabilities” and expressed hope that the courts would not have to adopt and attempt a legalistic analysis of the statutory meaning of section 31 on a case by case basis37. It was further submitted that whilst the express wording of section 31 had to be considered, it could not have intended them to be unduly restrictive when the evidence indicated that a certain course of action should be followed to protect a child38. In Re SH (Care Order: Orphan39) the child had been in and out of voluntary accommodation with the local authority while his mother was in hospital. Allegations of sexual abuse implicating his mother and half brother. His mother and father died within months of each other, at which point the local authority sought a care order, which was opposed by the guardian Ad Litem on grounds of threshold criteria not being satisfied and the overriding no order presumption. It was determined that the words “is suffering” under section 31(2) meant “was suffering” significant harm at the time when the rescue operation was instigated provided the measures were continuing at the time of the final hearing40. Impairment of health or development under the threshold will cover cases of neglect of emotional care and in such circumstances the court is directed to compare the child’s health or development with that which would reasonably be expected of a similar child41. In the case of Re O (A minor: Care Order: Education: Procedure)42 Lord Mackay asserted that this meant a child with the same physical attributes not a child of the same background. In this case regarding a truant of average intelligence, the “similar” child was held to be a child of equivalent intellectual and social development who has gone to school and the consideration of truancy was irrelevant43. Additionally, the “harm or likelihood of harm” must be attributable to the lack of reasonable care given by the parent or to the child being beyond parental control44. In addition to a finding of significant harm, the court must evaluate the care being given and consider whether the standard of care meets the required standard or whether it is beyond parental control45. It is immaterial whether the lack of parental control is the fault of the parent or the child. In Re O46Lord Mackay further asserted that “Where a child is suffering harm in not going to school and is living at home it will follow that the child is beyond her parents’ control or that they are not giving the child the care that it would be reasonable for a parent to give”47 . The Children Act 1989 Guidance and Regulations Volume 1 Court Orders48(the Guidelines) indicates that most cases of anticipated harm will arise where a child has suffered significant harm at some time in the past and is likely to do so again because of some recurring circumstance49. Following example: “Where physical abuse of a child is associated with bouts of parental depression or where a newly-born baby, because of the family history, would be at risk if taken home; or where the welfare of the child who was being looked after by the local authority under voluntary accommodation arrangements…. Would be at risk if the parents went ahead with plans to return him to an unsuitable home environment”50. The Guidelines further warn that “the conditions are intended to place a sufficiently difficult burden of proof upon the applicant as to prevent unwarranted intervention in cases where the child is not genuinely at risk51”. As such, the Guidelines highlight the overriding presumption of the no order principle, whilst acknowledging the need to adopt a pragmatic approach in considering the section 31(2) criteria. For example, in Re O and N (Care: Preliminary Hearing52) the Court of Appeal reiterated the approach of the Guidelines and asserted that the burden of proof was on the applicant authority throughout the proceedings to establish its case. However, whilst the general position is that the LA’s standard of proof threshold is the ordinary civil standard, which is the balance of probabilities,53the problem that has arisen in practice is the somewhat baffling argument of the judiciary that the more serious or “ostensibly improbable” the allegation of abuse, the more convincing is the evidence required to prove the allegation,54which arguably increases the standard of proof with regard to the section 31(2) threshold through the backdoor. This was highlighted by the controversial rationale in ReH and others (Minors) (Sexual Abuse: Standard of Proof).55 In ReH the 15 year old minor had suffered sexual abuse by her mother’s cohabitant over a long period. The cohabitant was tried for rape and acquitted. The local authority sought care orders in relation to the three younger girls in the household and asked the judge to find on balance of probabilities that the girls had been abused and/or there was a substantial risk, which therefore satisfied the section 31 “likely to suffer significant harm” criteria for the imposition of a care order. Notwithstanding strong dissents from Lord Browne Wilkinson, the majority rejected the LA’s application. The Majority speech was delivered by Lord Nicholls, who asserted that it was not necessary to demonstrate that it was probable that the child would suffer significant harm on the balance of probabilities and that the more serious the allegations the less likely it was that the events had actually occurred and therefore stronger evidence would be required56. Therefore whilst it was asserted that standard of proof didn’t change in these cases, the fact that as the judiciary posited it would be “inherently unlikely” that the alleged damaged actually occurred, proportionality required more cogent evidence to overcome this judicially perceived “improbability”.57 The judicial rationale in this decision has proved controversial and clearly flies in the face of the balance of probabilities burden of proof. The rationale in Re H effectively creates a reversal of the burden of proof by creating a presumption of no harm which the applicant must disprove. Whilst the nature of the section 31(2) threshold inherently requires a pragmatic approach to avoid unnecessary intervention, the decision in ReH arguably swings the pendulum too far against a proper consideration of “harm”. The above analysis indicates that overriding presumption of minimum intervention has led the judiciary to adopt a case by case approach in considering the section 31(2) threshold. The sensitive nature of local authority care applications and complex social issues requires such an approach, which is clearly reflected in the judicial approach to considering when the threshold of harm is required to be met in care order applications. However, it is submitted that the approach to the burden of proof in serious cases not only effectively creates a reversal and presumption of no harm that has to be disproved it arguably undermines the purpose of the section 31(2) threshold. This not only perpetuates legal uncertainty in a complex social area, it further devalues the overriding protective purpose of the CA. BIBLIOGRAPHY Aldgate., J (2001). “Safeguarding and Promoting the Welfare of Children in Need Living with their families” in L-A Cull and J Roche. The Law and Social Work, Contemporary Issues for Practice. Basingstoke Palgrave Bainham, A. (2005). Children – The Modern Law. (3rd Edition). Buchanan, A., (1995). Young people’s views on being looked after in out of home care under the Children Act 1989. Children and Youth Services Review, Volume 17, no 5/6, pp681-696. Diduck, A. & Kaganas, F (2006). Family Law, Gender and the State: Text Cases and Materials. (2nd Edition) Herring, J. (2007). Family law. (3rd Edition) Longman Hester (2002) One Step Forward and Three Steps Back? Children, Abuse and Parental Contact in Denmark. Child and Family Law Quarterly, 14:3 pp. 276-279. Jordan., L,. (2001). “Practising Partnership” in L-A Cull and J Roche (eds). The Law and Social Work, Contemporary Issues for Practice. Basingstoke Palgrave. Lowe, & Douglas. (2006). Bromley’s Family Law. (10th Revised Edition). LexisNexis UK. Masson, J. & Bailey Harris, R. (2008). Cretney’s Principles of Family Law. Sweet & Maxwell. J Masson (1994). “Social Engineering in the House of Lords: Re M”. 6 JCL 170. Mykituik, R. (2006) Family Law: Cases and Materials, Osgoode Hall Law School, (2006) Lisa Parkinson [1988] Custody Orders: A Legal Lottery? Fam Law 26. Probert, R. (2006) Cretney’s Family Law. (6th Revised Edition) (2006) Sweet & Maxwell J. Whybrow (1994). ReM – Past, Present and Future Significant Harm. 6 JCL 88. Legislation The Children Act 1989 Adoption and Children Act 2002 Official Reports Law Com. No 172 “Review of Child Law –Guardianship and Custody” (1988). Department of Health Framework for the assessment of children in need and their families- pack. The Children Act 1989 Guidance and Regulations Volume 1 Court Orders HMSO, 1991) Read More