A (a child), Re

In care proceedings, the threshold under section 31(2) of the Children Act 1989 may be established where injury occurred during shared care and it is impossible to identify which carer caused it. Attributability concerns the care provided to the child, not necessarily a proved act or omission by a particular parent. The absence of proof that a parent inflicted the injury must nevertheless govern the later management of the case. It does not itself prevent the threshold from being crossed.

Once the threshold is crossed, withdrawal may be permitted under section 1(5) where no court order is necessary to safeguard the child’s welfare. A threshold finding does not inevitably imply parental blame or require compulsory state intervention.

The local authority commenced care proceedings after a child with severe and undiagnosed neurodevelopmental and neuromuscular problems was found to have multiple fractures. The medical evidence indicated that the injuries resulted from squeezing during a period when care was shared between the parents and hospital staff, but could not identify the perpetrator.

The local authority accepted that it could not prove that either parent caused the injuries. It applied to withdraw the proceedings, with the child remaining in the care of the parents and subject to professional oversight. The central issues were whether the threshold in section 31(2) of the Children Act 1989 could nevertheless be established and, if so, whether withdrawal was consistent with the child’s welfare under section 1(5).

1. Withdrawal permitted. The local authority’s application to withdraw the care proceedings was granted. The child was to remain with his parents without a care order or compulsory court supervision.
2. Threshold. Section 31(2) focuses on whether significant harm is attributable to the care given to the child. Where care is shared, that expression may encompass the care of any carer. Accordingly, the threshold may be crossed even though the evidence cannot establish which carer caused the injury, and even though no specific fact can be proved against either parent. The court considered that the present case fell within the principle in Lancashire CC v B [2000] 1 FLR 583.
3. Position of the parents. Applying Re B (Care Proceedings: Standard of Proof) [2008] 2 FLR 141, the case had to be managed on the basis that the parents had not inflicted the injuries, because that could not be proved. That conclusion did not justify excluding the possibility that they had caused them on the evidence relevant to the threshold. The apparent unfairness to parents recognised in Lancashire CC v B was acknowledged.
4. Welfare and no order. The threshold issue was distinct from the question whether an order was required. Under section 1(5) of the Children Act 1989, withdrawal was justified because the child’s welfare was best served by remaining with his parents, who were providing admirable care and cooperating with professional services. The approach was consistent with LB Southwark v Y [1993] 2 FLR 559 and WSCC v M, F and Others [2010] EWHC 1914 (Fam).
5. Further observation. A conclusion that the threshold may be crossed does not inevitably amount to criticism of the parents. Since no findings had been made against them, the case was to be managed on the basis that they did not present a risk to the child based on past events. The court also noted that nothing suggested deliberate harm by the parents.