X, Y, Z (Minors), Re

Whether the threshold for a care order is met under Children Act 1989, section 31(2), is assessed objectively. A parent’s learning disability may explain failures in care, but it does not alter the standard of reasonable parental care required to protect children. The court must nevertheless take the disability into account when evaluating evidence and when deciding what support and assessments are necessary.

Local authorities must respond appropriately to information suggesting that children are privately fostered, comply with the statutory assessment and monitoring duties, and fulfil their disclosure obligations through proper examination of relevant records. Crossing the threshold does not itself determine the children’s long-term future. Permanent removal requires a welfare decision based on comprehensive, disability-sensitive assessments.

Kent County Council brought care proceedings concerning three children alleged to have suffered sexual abuse by David Mason and harm attributable to their mother’s care. The mother had a significant learning disability. The fact-finding hearing also considered allegations concerning F, the mother’s former partner, and the local authority’s handling of information about the family and about W’s private fostering arrangements.

The court considered whether the children had been abused, whether the mother had failed to protect them, whether there had been neglect and inadequate parental control, and whether the statutory threshold in section 31(2) of the Children Act 1989 was satisfied. It also examined the local authority’s statutory duties concerning private fostering, record-keeping and disclosure.

1. Findings and threshold. The court found that X, Y and Z had been sexually abused by David Mason over a prolonged period. The mother had allowed W, X and Y to stay regularly with him, had failed to act on X’s disclosure, and had persistently refused to accept that the children had been abused. She also had a chronic inability to control the children and a history of inadequate physical care. Those findings satisfied the threshold in section 31(2) of the Children Act 1989.
2. Objective standard. The assessment of whether care was what it was reasonable to expect a parent to provide was objective. The mother’s learning disability had to be taken into account when evaluating her evidence and understanding her conduct, but it did not reduce the standard of reasonable care required for the protection of children. The disability might explain the failure, but did not make objectively unreasonable conduct reasonable.
3. Evidence. The court applied the balance of probabilities, the need to evaluate evidence in its totality, and the caution required in assessing hearsay evidence and witnesses who had lied. A lie on one issue did not establish that all evidence from that witness was false.
4. Private fostering. Under Part IX of the Children Act 1989 and the Children (Private Arrangements for Fostering) Regulations 2005, the local authority had mandatory duties to assess, monitor and safeguard privately fostered children. It had failed to carry out the required assessment of W’s placement with Mason and had failed to comply with the applicable guidance and national standards. The court rejected the internal conclusion that a proper assessment would have approved the placement.
5. Welfare and future orders. Satisfaction of the threshold was only the first stage. The court required comprehensive assessments of the children, the mother and F, with proper regard to their disabilities. Permanent removal could be ordered only if necessary for the children’s welfare. Disabled parents had to receive a reasonable opportunity, consistent with the children’s welfare, to overcome disability-related disadvantages.
6. Wider practice. The local authority’s record-keeping, inter-departmental communication and disclosure were seriously deficient. The local authority lawyer had to identify the location and volume of relevant material, examine it properly and formulate a disclosure plan. Respondents and their advisers had corresponding responsibilities, but the guardian was not a substitute for proper preparation by the local authority.