K (A Child: Post Adoption Placement Breakdown), Re

For the threshold under Children Act 1989, s 31(2)(b)(ii), a child may be beyond parental control even where the condition arises from reactive attachment disorder and the parents are not culpable. The likelihood of significant harm may have more than one contributory cause. A care order still requires the court to assess whether the order is necessary and will improve the child’s situation, applying welfare, proportionality and the least-intervention principle. Where wardship is unavailable and accommodation under s 20 would leave the child in an unhelpful legal no-man’s land, a care order may be the better, though imperfect, outcome.

The local authority sought a care order for a 15½-year-old child who had been adopted after severe early neglect and abuse. Her adoption placement had broken down after years of challenging behaviour, repeated absconding, self-harm and periods of accommodation. She was living in a residential home and strongly supported a care order, while her adoptive parents opposed it and proposed continued accommodation under s 20.

The central issues were whether the threshold in s 31(2) of the Children Act 1989 was met, whether the likelihood of harm was attributable to the child’s being beyond parental control despite reactive attachment disorder, and which legal framework best served the child’s welfare.

1. Threshold. The local authority bore the burden of proving the disputed facts and threshold on the balance of probabilities. A real possibility of significant harm, founded on proved facts, satisfied the statutory concept of likelihood. Under Lancashire County Council v B [2000] 1 FLR 583, “attributable to” required a causal connection, but a contributory causal connection was sufficient.
2. The child was beyond parental control. That finding did not require parental misfeasance or culpability. The child’s reactive attachment disorder explained the behaviour and was its underlying cause, but the child’s being beyond parental control was at least a contributory cause of the likelihood of future harm. The threshold was therefore met under s 31(2)(b)(ii), although the adoptive parents’ shortcomings had neither caused nor exacerbated the disorder.
3. Welfare and proportionality. The child’s wishes required caution because of uncertainty about her understanding of a care order and her emotional immaturity. Her needs included safety, therapy, educational stability and help in understanding the consequences of her actions. The local authority had not convincingly shown how a care order would improve her situation, as required by the guidance on being beyond parental control.
4. A care order nevertheless provided a legal framework capable of holding both the local authority and parents accountable. Continued s 20 accommodation risked leaving the child in a damaging legal no-man’s land because the working relationship between the adults was poor. Wardship would have been preferable, as in Re K (Children) [2012] EWHC, but s 100(2)(b) prevented its use to require accommodation by a local authority. The court therefore made a final care order, while directing that the judgment be supplied to the Independent Reviewing Officer and Director of Children’s Services.