K & Ors (Children), Re

In care proceedings concerning severely disabled children, the threshold in section 31(2) of the Children Act 1989 must be considered even where significant harm arises from inherent disabilities rather than inadequate parental care. Reasonable parenting includes commitment to the child, recognition of professional roles and willingness to engage with advice and services, but does not require unquestioning compliance. Where a contested threshold trial is unnecessary, the court should consider whether threshold appears unlikely to be proved and, if not, whether withdrawal accords with the children’s welfare. In an exceptional case, proceedings may be withdrawn while wardship provides a temporary legal framework for accountability and coordination.

These were Part IV proceedings concerning five children, issued in 2009 and transferred to the High Court in 2011. Three children had severe and complex disabilities, while the parents and the local authority had developed a highly conflictual relationship despite substantial arrangements being made for the children’s care, education and support.

The parties reached four agreements concerning placements, cooperation and an independent case manager. The local authority sought to withdraw the proceedings. The parents did not wish to contest the threshold issues, and the central questions were whether a threshold trial should be required, how withdrawal should be approached where threshold could not be summarily rejected, and whether a continuing legal structure was required for the welfare of the children.

1. The court held that a contested trial on threshold should not be required. The children’s disabilities created a real daily risk of significant harm, but that risk was generally inherent in their conditions and was not ordinarily connected with the quality of care provided. The ground that a child was beyond parental control was unsuitable for this type of case.

2. For children whose needs exceed the capacity of any parent to meet them alone, reasonable parenting requires commitment to the child and engagement with medical, educational and social-care professionals. Parents need not always accept professional advice, since parental judgment may sometimes be preferable. However, refusal to engage, rejection of widespread advice likely to cause significant harm, or usurpation of a professional role may satisfy the threshold.

3. The court formulated a structured approach to an application to withdraw care proceedings: first determine whether a threshold trial is required; secondly consider whether, on summary examination, the local authority appears unlikely to prove threshold; thirdly permit withdrawal if that is so; and, if not, consider whether withdrawal is consistent with the individual and family welfare of the children.

4. On the evidence, the court could not say summarily that threshold could not have been established. Nevertheless, withdrawal was consistent with, and positively promoted, the welfare of all five children because of the negotiated arrangements and improved working relationship. Leave to withdraw the Part IV proceedings was therefore granted.

5. With the parties’ consent, Alec, Alice and Zac were made wards of court until further order. Wardship preserved equality between the parents and local authority, maintained accountability for care, education and nurturing, and provided a limited reference point for disputes. The agreements were to be scheduled to the order, with progress reports and a review in 2012. The court emphasised that wardship should cease when it no longer served a useful function and that litigation would ordinarily contribute little to resolving long-term care issues of this kind.

The proceedings were issued under Part IV of the Children Act 1989 on 30 October 2009 and were transferred to the High Court by Her Honour Judge Finnerty in July 2011. This was a first-instance decision.