B (A Child)

The section 31 significant-harm threshold is fact-specific. It requires harm going beyond ordinary parental inadequacy, but it cannot be exhaustively defined or restricted to physical harm. A court may take account of enduring emotional and developmental risks arising from parental behaviour and from the inability to manage those risks safely.

Permanent separation may be proportionate where a child requires sustained professional safeguarding, the parents cannot engage honestly and constructively with it, and no workable intermediate placement is available. On appeal, the court will not substitute its own assessment unless the trial judge has exceeded the generous ambit of reasonable disagreement.

HHJ Cryan made a care order for A, then aged two, on 14 June 2012. The local authority planned adoption, although no placement application had yet been made.

The parents appealed. They contended that anticipated harm arising from the mother’s psychological difficulties and dishonesty, the father’s history and behaviour, and their inability to cooperate with professionals did not satisfy the threshold for significant harm. They also submitted that permanent removal was disproportionate and that the father should have been further assessed as A’s sole carer.

The central issue was whether the judge was entitled to find a sufficient risk of significant harm and to conclude that no safe, proportionate placement with either parent was available.

1. The appeals were dismissed. Lady Justice Black held that the judge was entitled to find that A was likely to suffer significant harm and that a care order with a plan for permanent separation was proportionate.
2. The threshold decision was a value judgment. The appellate court’s task was to scrutinise it rigorously, but not to decide the case afresh. The judge had the substantial advantage of having heard extensive evidence and of possessing knowledge from related proceedings. The court applied the appellate restraint explained in [1999] 2 FLR 763 and [1997] RPC 1.
3. Significant harm was not confined to an immediate physical danger. The judge was entitled to identify a real risk of emotional, social and developmental harm. That risk arose from possible excessive medicalisation, persistent dishonesty, the likelihood that A would be drawn into deception or isolated from others, and the parents’ combined inability to moderate those behaviours.
4. The evidence permitted the judge to find that the risks were enduring rather than merely reactions to the local authority’s involvement. The parents needed close professional support to manage the acknowledged risks, but the judge was entitled to conclude that they could not cooperate with such support honestly or constructively. A general practitioner’s involvement alone was not an adequate safeguard.
5. The judge was also entitled to reject further assessment of the father as sole carer. His findings supported the conclusion that the parents would probably not separate in any meaningful way, that the situation could not be monitored safely, and that the father’s own history and inability to engage with professionals created serious concerns.
6. Lord Justice Lewison expressed substantial concern about the severity of the outcome but, after considering Lady Justice Black’s reasoning, agreed that the order was within the permissible ambit of the judge’s discretion. Lord Justice Rix agreed.

• Court of Appeal (Civil Division) — the parents’ appeals were dismissed: [2012] EWCA Civ 1475.
• Family Division, Principal Registry — HHJ Cryan made a care order on 14 June 2012 and endorsed a care plan for adoption.