Re H (Parents with Learning Difficulties: Risk of Harm)

A court may treat a child as being at risk of future harm only where the risk rests on proven facts. Unproven allegations, professional concerns and a vulnerable parent’s acknowledgement of a mere possibility cannot establish the required factual foundation.

When parents have learning difficulties, the court must rigorously identify the support they need, ascertain what the local authority can and should provide, and decide whether that package would meet the child’s welfare needs. Long-term support is not inherently substituted parenting. Before approving adoption, the court must scrutinise how support would operate, its practicality and intrusiveness, any resulting risk, and possible mitigation.

The parents appealed against care and placement orders made by the Family Court at Wolverhampton in respect of H, who had lived with them since birth. Both parents had cognitive difficulties and the mother had a diagnosed learning disability. H was developing appropriately and had received good basic care, but the local authority relied on the family’s history, alleged risks from her older brothers and concerns about the parents’ future capacity.

The parents had conceded that the threshold criteria under section 31 of the Children Act 1989 were satisfied. The central questions were whether the judge had improperly relied on unproven allegations of sexual harm, whether he had adequately examined the support needed to keep H at home, and whether his conclusion that only adoption would meet H’s needs was proportionate.

1. Appeal allowed. The care and placement orders were set aside and the proceedings remitted for allocation to another judge. The court did not determine H’s eventual placement.
2. A risk falling within section 1(3)(e) of the Children Act 1989 or section 1(4)(e) of the Adoption and Children Act 2002 must be established from proven facts. Except for E’s admitted assault on the mother, the allegations of sexual conduct involving H’s brothers had not been proved. Concerns and the parents’ acceptance that the allegations might be true could not establish that H was, rather than might be, at risk. Particular caution was required before relying on concessions by cognitively vulnerable parents.
3. The sexual-risk error was central to the welfare balance. It could not be severed while leaving the placement orders intact because the balancing exercise would have been materially different without it.
4. Where parents have learning difficulties, the court must enquire carefully into the support required to enable them to provide good-enough care. A local authority cannot seek adoption merely because it is unable or unwilling to support a less interventionist arrangement. Support may need to continue throughout childhood and evolve with the child’s needs.
5. Judges must scrutinise assertions of “substituted parenting”. The court should identify what professionals would do, assess whether that intervention would harm the child, and consider how any risk could be mitigated. The proper sequence is to identify the necessary package, ascertain what the authority can and should provide, and then determine whether the child’s welfare needs would be met.
6. The judge had accepted undefined assertions that extensive support would be unsustainable, impracticable and contrary to H’s welfare without the required analysis. He also failed to give sufficient weight to recommended work which had not been provided and to H’s current circumstances. The proportionality assessment therefore did not establish that nothing short of adoption would meet her needs.

1. Court of Appeal (Civil Division): The appeal was allowed. The care and placement orders were set aside and the proceedings remitted to the Family Division Liaison Judge for the Midland Circuit for reallocation.
2. Family Court at Wolverhampton: HH Judge Lopez made care and placement orders in respect of H and refused the mother permission to appeal.