In the matter of K (A Child)

The threshold for public law intervention must be assessed from the whole evidential history, including relevant events before a child’s birth and during pregnancy. It is not confined to the parent’s conduct towards the child after birth. The statutory question is whether, at the date protective measures were taken, significant harm was likely. Later evidence may inform that assessment only insofar as it sheds light on the evidence as it stood at that date. Threshold and welfare are separate exercises: crossing the threshold does not require separation, but the conclusion that separation is unnecessary cannot establish that the threshold was unmet.

The Central Family Court dismissed an application for a care order concerning K, then aged six months, finding that the threshold under the Children Act 1989 had not been crossed. The judge relied substantially on the mother’s care of K in a mother-and-baby foster placement and made a private law order that K should live with her mother.

K’s children’s guardian appealed, supported by the local authority and opposed by the mother. The appeal challenged the judge’s treatment of the parents’ wider histories, the relevant date for assessing likelihood of harm, and the separation of threshold and welfare questions.

Appeal allowed. Lord Justice Peter Jackson gave the judgment, with Lord Justice Floyd agreeing.

1. Whole evidential context. The local authority’s and guardian’s case depended on the parents’ complete personal histories, including events before K’s birth and during the pregnancy. By concentrating on the mother’s behaviour towards K, the judge excluded material evidence. On a full overview, the facts showed a likelihood of significant harm arising from K being born to two very young and volatile parents. The threshold under section 31(2) of the Children Act 1989 was plainly met.
2. Relevant date. The question was whether, when protective measures were put in place, K was likely to suffer significant harm. The mother’s later performance in the foster placement could affect that assessment only insofar as it shed light on the significance of the evidence at the relevant date. The judge had not approached the evidence in that way. The court applied the approach identified in G (Children) [2001] EWCA Civ 968.
3. Separate exercises. The court must find the facts, apply the threshold test, and then make welfare and proportionality evaluations. The threshold may be crossed even where welfare does not require separating parent and child. It is impermissible to conclude that the threshold was unmet because separation was not required.
4. The judge’s threshold finding was set aside. The Court of Appeal endorsed an amended threshold document as the basis on which the threshold had been crossed in the earlier proceedings. It declined to address the welfare assessment or orders further because those matters fell to be considered afresh in the new proceedings.

1. Court of Appeal (Civil Division) allowed the appeal and set aside the finding that the threshold of likelihood of significant harm had not been crossed: [2018] EWCA Civ 2044.
2. Central Family Court, on 18 May 2018, dismissed the application for a care order, found the threshold unmet, and made a private law order that K should live with her mother.