C and B (Children)

A finding that a child is likely to suffer significant harm does not automatically justify immediate removal, a care order, adoption, or permanent separation from the family. The nature and gravity of the feared harm must inform the response. The court must consider whether intervention is proportionate and whether less intrusive measures could protect the child while supporting and potentially reuniting the family.

Where contact with children in care has caused harm, an order permitting refusal of contact and a restriction under section 91(14) of the Children Act 1989 may be justified. Such orders do not permanently determine the issue: the local authority must continue to consider contact consistently with the children’s welfare.

The parents appealed against care orders made by Chelmsford County Court concerning their two youngest children, J and C. The judge had also permitted the local authority to refuse contact between the parents and the two older children, K and CM, and imposed a two-year restriction under section 91(14) of the Children Act 1989.

The younger children had been removed despite the absence of evidence of present harm. The concern was that they might later suffer intellectual or emotional harm resembling that alleged in relation to the older children. The central issues were whether the threshold for likely significant harm was established and, if so, whether the care orders and proposed separation were proportionate. The appeal also concerned the lawfulness of the contact and section 91(14) orders relating to the older children.

1. Disposition. The appeals concerning J and C were allowed. Their care orders and associated orders were set aside, the case was remitted for reconsideration by a High Court judge, and the children were to return home meanwhile under an interim supervision order. The appeals concerning K and CM were dismissed.
2. Threshold. Applying the approach in Re H and Others (Minors) (Sexual abuse: standard of proof) [1996] AC 563, the relevant question was whether there was a real possibility of future significant harm which could not sensibly be ignored, having regard to the nature and gravity of the feared harm. Lady Justice Hale considered that there was evidence capable of supporting the judge’s conclusion that the threshold was crossed, although the judge had overstated the evidence.
3. Proportionality and intervention. The nature and gravity of the feared harm were highly relevant to the action taken in response. Pre-emptive intervention may be justified, but the stronger cases generally involve serious and continuing deficiencies such as serious mental illness, serious personality disorder, intractable substance abuse, chronic neglect, abuse, or serious ill-treatment. The local authority should support and work towards reunification unless the risks are so high that the child’s welfare requires alternative family care. The court rejected the proposition that care with adoption was the only realistic option and held that the judge had not adequately considered less intrusive alternatives.
4. Interim removal. The removal of J and C was unjustified because there was no evidence of immediate physical or emotional risk. The intervention should have been preceded by a full hearing rather than implemented on a speculative basis.
5. Older children. The evidence of harm associated with contact and the children’s wishes justified the order permitting refusal of contact. Under Schedule 2, paragraph 15 of the Children Act 1989, the local authority nevertheless retained a duty to promote contact unless that was not reasonably practicable or consistent with the children’s welfare. The two-year restriction under section 91(14) was permissible. Applying the guidance in Re P (A Minor) (Residence Order: Child’s Welfare) [2000] Fam 15, the judge was entitled to conclude that the statutory six-month period was insufficient. Sir Christopher Staughton agreed with the result and reasoning.

• Chelmsford County Court: On 20 October 1999, Her Honour Judge Ludlow made care orders for J and C, permitted refusal of contact with all four children, and imposed a restriction under section 91(14) of the Children Act 1989.
• Court of Appeal (Civil Division): Appeals allowed concerning J and C and remitted to the High Court; appeals concerning K and CM dismissed.