Hertfordshire County Council v F & Ors

In care and placement proceedings, learning disability alone does not establish the statutory threshold. The court must assess actual or prospective significant harm, including emotional harm, in the circumstances of the family. Future physical harm may be established by a pattern of uncontrollable aggression even where no physical injury has yet occurred. A care order and adoption are permissible only where they are necessary, proportionate to the risk, and no realistic alternative will safeguard the child. The child’s timescale is central. A further assessment or adjournment should be refused where it would have no utility and cannot realistically alter the evidence-based evaluation of risk.

The local authority sought final care and placement orders for Baby, the younger child of F and M. The older child, J, had previously been made subject to care and placement orders after findings concerning the father’s aggression, hostility towards professionals, lack of insight and the mother’s inability to protect J from the resulting risks. Those orders had been upheld on appeal.

The central issues were whether the Children Act 1989 threshold was satisfied for Baby, whether further assessment or an adjournment was justified, and whether adoption was the only realistic option consistent with Baby’s welfare and family-life rights.

1. Threshold. The threshold under section 31 of the Children Act 1989 was satisfied. Learning disability was not, by itself, a reason why a parent could not care for a child. The relevant question was whether the evidence established actual significant harm or a risk of significant harm.
2. Risk of harm. The absence of previous physical injury did not prevent a finding of likely future physical harm. The father’s uncontrollable aggression, threats, intimidation and refusal to cooperate with statutory professionals created a foreseeable risk that a child might be caught up in physical conflict. His conduct also created a high risk of emotional harm. The mother’s vulnerabilities and inability to protect the children increased that risk.
3. Further assessment. The court was usually best placed to assess whether circumstances had changed within the child’s timescale, particularly where another experienced judge had already made detailed findings. Those findings were binding unless compelling recent material justified a different view. No useful purpose would be served by a late independent assessment or adjournment where the evidence showed that circumstances had worsened and the proposed work could not realistically alter the evaluation.
4. Proportionality and placement. The test was that nothing else would do. The court had to consider safety, harm, any realistic alternative and proportionality. Under the Adoption and Children Act 2002, the realistic options were return to parental care or adoption. Long-term fostering was not appropriate for a child of Baby’s age, and no suitable family placement was available. Adoption was therefore proportionate and the only realistic alternative capable of securing permanence, stability and protection from harm.
5. A full care order and placement order were made. The mother’s consent to adoption was dispensed with. The father’s consent did not require dispensing with because he did not have parental responsibility. Permission to appeal was refused.

• High Court (Family Division): The present judgment determined the final care and placement applications for Baby.
• Earlier proceedings concerning J: Care and placement orders made by Judge Mellanby were appealed to a judge of the same court and the appeal was dismissed. A possible further appeal to the Court of Appeal was said to be out of time and its permission status was uncertain.