BP & Ors v Hertfordshire County Council & Anor

In care and placement proceedings, actual harm is not required for state intervention. Under Children Act 1989, section 31, sufficient facts showing a likelihood of significant harm may satisfy the threshold. The threshold may relate to one parent; the other parent’s capacity is considered in the welfare analysis after the threshold is crossed. Persistent antagonism and refusal to co-operate are relevant where they expose children to risk or prevent protective arrangements being tested, but removal is not justified merely because a parent disagrees with a local authority. Nothing else will do is not a freestanding test, but part of the proportionality assessment required by the child’s best interests: Re B (A Child) [2014] UKSC 33. An expert’s undisclosed funding arrangement warrants disclosure, but will not invalidate findings without actual conflict, breach of duty or material unfairness.

These were four linked applications for permission to appeal concerning two children, P and B. In P’s case, the parents challenged care and placement orders made by District Judge Mellanby on 13 November 2013; His Honour Judge Waller dismissed their first appeal on 1 April 2014, so a second appeal required permission. In B’s case, Parker J made care and placement orders on 23 May 2014, giving rise to a first appeal. A subsidiary challenge concerning interim contact and a naming ceremony had become academic.

The Court of Appeal considered whether the threshold under the Children Act 1989 was established, whether the welfare and proportionality assessments were erroneous, and whether a psychologist relied on below was independent despite a local-authority retainer.

The court refused permission to appeal in each application. Lord Justice Ryder delivered the judgment, with Lord Justices Kitchin and Moore-Bick agreeing.

1. Permission and threshold. The second appeal concerning P had to satisfy the test in CPR 52.13, while the first appeal concerning B had to satisfy CPR 52.3(6). Neither application disclosed the necessary point of principle, compelling reason or real prospect of success. Under section 31 of the Children Act 1989, actual harm is unnecessary where sufficient facts establish that a child is likely to suffer significant harm. The threshold need relate to only one parent. The other parent’s capacity to provide care is considered in the welfare determination under section 1 once the threshold is satisfied.
2. Welfare and proportionality. There is no general legal duty to co-operate with a state agency. However, antagonistic and unco-operative conduct may be relevant where it exposes children to harm, prevents protective arrangements from being tested, or places parental needs above the children’s. The courts were entitled to find that the father’s conduct created a greater risk than the benefit provided by his ability to support the mother. The comparative welfare evaluation properly concluded that the benefits of the proposed adoptive placement outweighed the detriments of returning the children home. The further opportunity given to the father to demonstrate change had not been used. The phrase nothing else will do was not a new legal test, but part of the proportionality assessment required by the child’s best interests, as explained in Re B (A Child) [2014] UKSC 33.
3. Expert independence. The local authority should have disclosed the psychologist’s funding arrangement directly to the court and parties; a circular letter was insufficient. The retainer created a hypothetical perception of conflict, but there was no actual conflict, breach of expert obligations or material basis for cross-examination. The alleged procedural irregularity therefore could not undermine the care and placement determinations. The guidance in Oldham MBC v GW & Ors [2007] EWHC 136 (Fam) was consistent with the use of independent expert advice obtained before proceedings.

• Court of Appeal (Civil Division) — permission to appeal refused in all four linked applications: [2014] EWCA Civ 1524.
• Family Court sitting at Watford, His Honour Judge Waller — first appeal concerning P dismissed on 1 April 2014.
• Family Court sitting at Watford, Parker J — care and placement orders made concerning B on 23 May 2014.
• Family Court, District Judge Mellanby — care and placement orders made concerning P on 13 November 2013.
• Family Court, His Honour Judge Wright — interim contact and naming-ceremony issues; the related challenge became academic after final orders.