S & H-S (Children)

When determining whether the threshold for a care order is crossed, the court must identify the child’s significant harm or likely significant harm, its category and its causal connection with unreasonable parental care. The assessment must relate to the statutory relevant date and to the individual child.

Impaired attachment may constitute significant emotional harm where credible expert evidence establishes serious developmental consequences and connects the impairment with the care provided. Deficiencies in the clarity of a first-instance judgment do not require reversal where its accepted evidence and findings sufficiently establish each statutory element. Threshold findings should nevertheless be stated precisely and recorded in, or annexed to, the care order.

The mother appealed against a care order made by HHJ Lynch in Leeds Family Court concerning her youngest child, L. The order followed a second set of care proceedings involving L and her two older siblings. The relevant date for determining the threshold was 9 March 2017.

The judge found that the mother had lifelong emotionally unstable personality traits, impaired attachment with the children and difficulty controlling her emotional reactions. She concluded that the children had suffered significant emotional harm and that L would be at risk of such harm in the mother’s care. The mother argued that the judgment failed to identify significant harm to L with the precision required by section 31 of the Children Act 1989, confused pre-proceedings evidence with later deterioration, and impermissibly treated deficits in the mother’s personality as sufficient.

The central issue was whether the evidence and findings established that, on the relevant date, L was suffering or was likely to suffer significant emotional harm attributable to the mother’s care.

1. Appeal dismissed. The accepted psychological evidence and the judge’s findings provided a solid basis for concluding that, on 9 March 2017, L was suffering significant emotional harm and was likely to suffer such harm in the future because of the care provided by her mother. The section 31 threshold under the Children Act 1989 was therefore established.

2. The first-instance judgment lacked clarity and focus. Several passages referred only to emotional harm rather than significant emotional harm, the formal threshold statement described the mother’s condition without adequately explaining its harmful consequences, and the order did not record the threshold findings. Nevertheless, paragraphs 106–110, read with the accepted expert evidence, showed that the judge found significant emotional harm arising before the relevant date. The welfare section also contained a finding of likely future significant emotional harm.

3. The attachment between L and her mother had developed while L was in the mother’s care before proceedings began. Expert evidence placed it on the boundary between insecure and disorganised attachment and identified serious consequences for emotional, psychological and neurological development. The impairment arose from longstanding features of the mother’s psychological functioning rather than merely from her later deterioration during the proceedings.

4. The guidance in Re B [2013] UKSC 33 required the court to identify the nature and significance of the harm, the respects in which parental care fell below a reasonable standard, and, for future harm, the degree of likelihood. A parental personality deficit alone is insufficient. In the present case, the evidence and findings established both the harm and the necessary causal relationship with the mother’s care.

5. The Court of Appeal could not replace the judge’s findings with a new threshold document prepared by the local authority for the appeal. The proposal had not been advanced by a respondent’s notice and would have been procedurally unfair. It would also have required the appellate court to determine threshold on a materially different basis from that selected by the trial judge.

6. For future cases, threshold findings should be distilled into short, structured paragraphs specifying whether the child is suffering or is likely to suffer significant harm, the category of harm and causation. Relevant findings from earlier proceedings should be identified. Counsel and the judge must ensure that the findings are clear, and the care order should contain or annex the basis on which threshold was established.

Lindblom LJ agreed with McFarlane LJ.

1. Court of Appeal (Civil Division): The mother’s appeal was dismissed and the finding that the section 31 threshold under the Children Act 1989 was established in respect of L was upheld: [2018] EWCA Civ 1282.

2. Leeds Family Court: HHJ Lynch made a care order on 21 December 2017 after finding that L had suffered and was likely to suffer significant emotional harm attributable to the mother’s care. No neutral citation is stated.