Lancashire County Council v B (Lancashire County Council v W)

Under section 31(2)(b)(i) of the Children Act 1989, “care given to the child” normally means care given by parents or other primary carers. Where care is shared, deficient care by one of the carers has caused significant harm, and the court cannot identify the responsible carer, the phrase extends to the care given by any of them. It does not automatically encompass harm caused by every temporary carer.

“Attributable to” requires a causal connection, but a contributory connection suffices. The standard of care is objective and does not depend on parental fault. Satisfaction of the threshold conditions only gives jurisdiction to consider an order. It does not create a presumption that an order should be made.

Lancashire County Council v B (Lancashire County Council v W) arose from applications for care orders concerning two infants, A and B. A suffered serious non-accidental head injuries while her daily care was shared between her parents and B’s mother, a paid childminder. The judge found that the perpetrator was A’s mother, A’s father or B’s mother, but could not identify which of them was responsible.

The Blackburn County Court dismissed both applications because it could not attribute A’s injuries to either of her parents and could not find that B was at future risk. The Court of Appeal, whose decision was reported at [2000] 2 W.L.R. 346, reversed the decision concerning A but upheld it concerning B. Only A’s parents appealed to the House.

The central issue was whether “the care given to the child” in section 31(2)(b)(i) of the Children Act 1989 was confined to care given by parents or primary carers, or could include care given by another person participating in a shared-care arrangement when the person responsible for the harm could not be identified.

1. Disposition. The House unanimously dismissed the appeal. Lord Nicholls delivered the leading speech. Lords Slynn, Nolan and Hoffmann expressly agreed with his reasons, while Lord Clyde agreed in the result and gave additional reasons. The threshold conditions for making a care or supervision order were satisfied on the facts found.

2. Causation and standard of care. Per Lord Nicholls, “attributable to” in section 31(2)(b) of the Children Act 1989 requires a causal connection between the harm and the care given. The connection need not be the sole, dominant or direct cause; a contributory connection is sufficient. The care must fall below the objective standard reasonably expected of a parent caring for the particular child. Failure to meet that standard does not necessarily imply parental fault.

3. Shared care. Per Lord Nicholls, “care given to the child” in section 31(2)(b)(i) refers primarily to care given by parents or other primary carers. The respondents’ construction, which encompassed anyone playing any part in the child’s care, was too wide. The parents’ proposed restriction was too rigid. Where care is shared, deficient care by one of the carers has caused harm, and the court cannot distinguish which carer was responsible, the phrase encompasses the care given by any of the carers. This construction protects the child while encroaching as little as possible upon the statutory principles protecting family life.

4. Lord Nicholls explained that Northamptonshire County Council v S [1993] Fam. 136 and In re G (A Minor) (Care Order: Threshold Conditions) [1995] Fam. 16 concerned different points. Their statements did not express a judicial view on the shared-care problem before the House.

5. Threshold and welfare stages. Per Lord Nicholls, satisfaction of section 31(2) merely permits the court to consider making an order. It does not follow that a care order will be made. At the discretionary stage, the child’s welfare is paramount, the section 1(3) checklist applies, and section 1(5) prevents an order unless it is better for the child than no order. In an unidentified-perpetrator case, the judge must remember that the parents may be innocent and may present no risk.

6. Family life. Per Lord Nicholls, the continuation of proceedings did not violate article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The steps taken were no more than reasonably necessary to pursue the legitimate aim of protecting A from further injury and therefore fell within article 8(2).

7. Lord Clyde’s concurrence. Lord Clyde considered that section 31(2)(b)(i) does not require identification of the individual responsible. “Care” may be given by anyone who has undertaken the factual task of looking after the child, and the reasonable-parent language defines the required standard rather than the class of carers. He nevertheless emphasised that state intervention in family life requires caution and restraint, because even commencing care proceedings may harm the child and innocent parents.

1. House of Lords: In Lancashire County Council v B (Lancashire County Council v W) [2000] 2 AC 147, the House unanimously dismissed A’s parents’ appeal and affirmed the Court of Appeal’s conclusion that the statutory threshold was satisfied concerning A.
2. Court of Appeal: The court reversed the County Court’s decision concerning A and upheld its decision concerning B: [2000] 2 W.L.R. 346. Its decision concerning B was not appealed to the House.
3. Blackburn County Court: His Honour Judge Gee dismissed the care-order applications concerning both A and B because the evidence did not identify which of A’s parents or B’s mother had injured A. He made interim care orders pending appeal.