Re H continued (Risk of Harm)

When deciding whether to remove a child living at home under a care order, the court must balance the risks of remaining with the parents against the risks and likely long-term consequences of removal. Risk cannot be assessed solely by reference to proven facts where the wider family history is necessary to understand the protective problem, although allegations must be given appropriate weight. Parental dishonesty and lack of insight are relevant only insofar as they affect the child’s welfare and the effectiveness of protective arrangements. They must not become the overriding consideration or hijack the welfare evaluation. Removal requires a high standard of evidence and justification. A care order at home may remain proportionate in an exceptional case where risks cannot be eliminated but can be managed through a clear safety plan, support and monitoring.

The local authority had obtained a care order under which H, a young child, remained living with her parents. Following allegations that her older brother F had sexually harmed her, the local authority notified the parents of its intention to remove H. The parents sought discharge of the care order and opposed removal.

The court first found that F had removed H’s shirt and had an altercation with another child, but did not find sexual harm or prove that F had put his hand down H’s leggings. It then considered whether H’s welfare required removal, including the family history, the parents’ cognitive difficulties, their failure to be fully open with professionals, the protective arrangements, and the consequences of foster care.

1. Fact-finding. The local authority bore the burden of proving the allegations on the balance of probabilities. The evidence had to be assessed holistically, with caution concerning demeanour, memory and the witnesses’ vulnerabilities. An incident involving F removing H’s shirt and pulling down another child’s trousers was proved, but sexual harm was not.
2. Assessment of risk. The court held that the binary nature of fact-finding could not provide the whole answer to the protective question. In assessing H’s welfare, it was necessary to consider the family history and accepted general concerns, even though many underlying events had not resulted in findings of fact or convictions. The risk of sexual harm remained difficult to assess but could not simply be treated as absent.
3. Removal and proportionality. Removal of a child living at home under a care order requires a high standard of evidence and justification. The court had to balance the risk of remaining with the parents against the harm and long-term consequences of removal. The parents’ dishonesty was relevant because it could undermine protective arrangements, but it could not become the overriding consideration or hijack the welfare evaluation.
4. Application. H was thriving and securely bonded to her mother. The household had materially changed: the older children no longer lived at home, F was living elsewhere, and contact could be regulated. The risks of removal included distress, loss of the parental relationship and a substantial possibility of long-term foster care. Those risks had not been adequately weighed by the local authority or Guardian.
5. The balance favoured H remaining with her parents. The care order at home remained proportionate, subject to further work with the parents, a clearer safety plan, no contact between F and H save possibly in public or at a contact centre, and continued local-authority monitoring through nursery observations, weekly and unannounced visits.

This was a first-instance decision of the High Court (Family Division). The judgment arose in the context of an existing care order made after the earlier proceedings had been remitted by the Court of Appeal.