Evidence of Risk

Re C and B (Care Order: Future Harm) [2001] 1 FLR 611

The two elder children of the family had been taken into care in 1996 on the grounds that the elder child had suffered actual emotional and intellectual harm and of the likelihood of such harm to the younger child. An interim care order had been made in respect of a third child, aged 10 months on the basis that there was a likelihood that he too would suffer similar significant harm in the future, even though he was currently doing well. When the mother gave birth to a fourth child, an emergency protection order was made on the same day of its birth and both younger children were placed with the same foster carers. In allowing an appeal against the making of care orders in respect of the two younger children the Court of Appeal applied article 8 of the European Convention and the principles of proportionality. In the absence of evidence of actual harm there was no basis on which it could possibly be appropriate to remove a 10-month-old baby from the only parents and home he had ever known at a crucial stage in the development of his attachments when there was no evidence that he was at immediate physical risk and, indeed, no evidence that he was at immediate emotional risk. Although there are cases in which one should intervene now to prevent future harm and some of those cases may warrant immediate pre-emptive action before the case comes on for full hearing, this was nowhere near a clear enough case of the former to warrant the latter. It was a classic example of a situation where the case for intervention should have been proved by a full hearing in court before the intervention took place and not after. Worse was to follow. It was quite impossible to see how any emergency protection order in respect of the new born baby could be justified under the terms of s44(1) of the Children Act 1989. They require that there is a risk of significant harm to the child if the child is not removed or kept where the child is now. Such orders are intended to be made when there is an emergency and it can be shown that unless emergency action is taken that the child will be at risk of significant harm during the period of the order. In considering the subsequent orders that were made the principle of proportionality had to be applied. The principle had to be that the local authority works to support and eventually to reunite the family unless the risks are so high that the child’s welfare requires alternative family care. This was not a case for a care order with a care plan of adoption or nothing. There could have been other options. There could have been time taken to explore those other options. Although the court would have reached the same conclusion without reference to article 8 of the European Convention, the Convention gave both the children and the parents the right to respect for their family life and private life. If the state is to interfere with that there are three requirements: first, that it has to be in accordance with the law; secondly, that it be for a legitimate aim, in this case the protection of the welfare and interests of the children; and thirdly, that it be necessary in a democratic society. There was a long line of European Court of Human Rights jurisprudence on the third requirement, which emphasises that the intervention has to be proportionate to the legitimate aim. Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child.