Lancashire County Council & Anor v. Barlow & Anor

The House considered the meaning of the phrase "the care given to the child" in section 31(2)(b)(i) of the Children Act 1989. The court held that the threshold conditions for a care or supervision order require a causal connection between the harm (or likelihood of harm) and care which falls below the objective standard of the reasonable parent. Causation may be contributory rather than sole or dominant.

Ordinarily the phrase refers to care by parents or other primary carers, but where care is shared and the court cannot distinguish which carer provided the deficient care that caused the child significant harm, the phrase may properly extend to embrace the care given by any of the carers. This narrower-than-literal but pragmatic construction prevents an unacceptably rigid result which would leave a seriously harmed child without the statutory protection of section 31.

The court also emphasised the need for caution in state intervention and confirmed that article 8 rights are engaged but that necessary protective steps taken pending resolution fall within article 8(2).

This is an appeal from the Court of Appeal ([2000] 2 W.L.R. 346) against a decision reversing a county court judge (His Honour Judge Gee) concerning an application by a local authority for care orders under the Children Act 1989. The local authority sought care orders for two infants after one child (A) suffered repeated serious non-accidental head injuries while in shared care arrangements involving the parents and a daytime childminder. The fact-finding judge found at least two episodes of violent shaking caused the injuries but was unable to identify whether A's mother, A's father or the childminder was the perpetrator and dismissed the care order application on the ground that the harm had not been shown to be attributable to the care of the parents. The Court of Appeal reversed in respect of A, holding the attributable condition could be satisfied where care is shared and the court cannot apportion responsibility.

The appellants (the parents) contended that "the care given to the child" in section 31(2)(b)(i) must be read as care by parents or primary carers so that if the court cannot show the harm was attributable to those persons the threshold condition is not met. The House framed the principal issue as whether the statutory phrase is confined to parental or primary carer care or extends, in appropriate shared-care situations, to care by any carer when the court cannot identify who inflicted the harm.

The House held the appellants' restricted construction would lead to unacceptable consequences in shared-care cases and that the Court of Appeal's broader construction was too loose. The preferable interpretation is that the phrase ordinarily refers to care by parents or other primary carers but, in cases where care is shared and it is proved that the child's significant harm resulted from deficient care by one or other of the carers but the court cannot identify which carer was responsible, the phrase is apt to embrace the care given by any of the carers. The court applied statutory context, causation principles (contributory causation suffices), the objective reasonable-parent standard, and balanced these against the need for restraint before removing a child. It concluded the threshold conditions under section 31 were satisfied on the judge's findings and dismissed the appeal.

Nature of relief sought: care orders (and supervision orders) to protect the child. Issues framed: interpretation of section 31(2)(b)(i) "care given to the child", causation standard, application where care is shared and perpetrator unidentified, and compatibility with article 8 ECHR. Reasoning: statutory purpose, objective standard of care, causation need not be sole or dominant, and a limited expansion of the phrase in shared-care cases to avoid leaving a seriously harmed child unprotected; nevertheless the court stressed caution and that satisfaction of threshold conditions does not automatically lead to making an order.

Appeal dismissed. The House held that "the care given to the child" in section 31(2)(b)(i) ordinarily refers to care by parents or other primary carers but, in cases of shared care where it is proved that the child suffered significant harm from deficient care by one or other of the carers and the court cannot identify which carer was responsible, the phrase may properly embrace the care given by any of the carers. On the facts found by the trial judge the threshold conditions in section 31 were satisfied.

County Court (Blackburn) — His Honour Judge Gee (fact-finding; dismissed applications); Court of Appeal — reversed judge as to child A, reported at [2000] 2 W.L.R. 346; appeal to House of Lords ([2000] UKHL 16).