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Cite as: [2000] BLGR 347, [2000] 2 All ER 97, [2000] UKHL 16, [2000] 1 FCR 509, [2000] 1 FLR 583, [2000] Fam Law 394, [2000] 2 WLR 590, [2000] 2 AC 147

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Lancashire County Council and Another v. Barlow and Another and One Other Action [2000] UKHL 16 (16th March, 2000)

HOUSE OF LORDS

Lord Slynn of Hadley Lord Nolan Lord Nicholls of Birkenhead Lord Hoffmann Lord Clyde

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

LANCASHIRE COUNTY COUNCIL AND ANOTHER

(RESPONDENTS)

v.

BARLOW AND ANOTHER

(APPELLANTS)

AND ONE OTHER ACTION

ON 16 MARCH 2000

LORD SLYNN OF HADLEY

My Lords,

I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Nicholls of Birkenhead. For the reasons he gives, I too would dismiss this appeal.
LORD NOLAN

My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Nicholls of Birkenhead. For the reasons he gives, I too would dismiss this appeal.
LORD NICHOLLS OF BIRKENHEAD

My Lords,
Section 31(1) of the Children Act 1989 empowers the court to make an order placing a child in the care of a local authority or putting him under the supervision of a local authority or a probation officer. Before the court may make such an order certain minimum conditions, familiarly known as threshold conditions, must be satisfied. These are set out in section 31(2), which reads:
Harm is defined in wide terms in section 31(9). When the threshold conditions are satisfied, and the court proceeds to consider whether to exercise its discretionary power to make a care order or a supervision order, the child's welfare is the court's paramount consideration. The court has regard in particular to the matters itemised on the welfare checklist set out in section 1(3) of the Act, including any harm the child has suffered or is at risk of suffering and how capable each of his parents is of meeting his needs. Thus, the findings made by the court regarding the threshold conditions are carried forward to the consideration of the child's welfare needs. The court will not make an order unless it considers that doing so would be better for the child than making no order (section 1(5)).
On this appeal the House is called upon, for the third time, to interpret the threshold conditions. In the previous case of In re M. (A Minor) (Care Orders: Threshold Conditions) [1994] 2 A.C. 424 the House considered what was the date at which the threshold conditions must be satisfied. In the case of In re H. (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 attention was focused on the first threshold condition, sometimes referred to as the 'significant harm' condition, set out in section 31(2)(a). On the present occasion the point at issue concerns the second threshold condition (the 'attributable' condition), set out in section 31(2)(b), and in particular the phrase 'the care given to the child'. This appeal is another illustration of what Lord Templeman, in the re M. case, aptly referred to as the tyranny of language.
Before identifying the issue I should mention two preliminary points which attracted little, if any, controversy between the parties. First, the phrase 'attributable to' in section 31(2)(b) connotes a causal connection between the harm or likelihood of harm on the one hand and the care or likely care or the child's being beyond parental control on the other hand. Echoing the language of Donaldson J. in a different context (in Walsh v. Rother District Council [1978] I.C.R. 1216, 1220), the connection need not be that of a sole or dominant or direct cause and effect; a contributory causal connection suffices. For instance, if a parent entrusts a child to a third party without taking the precautionary steps a reasonable parent would take to check the suitability of the third party, and subsequently the third party injures or sexually abuses the child, the harm suffered by the child may be regarded as attributable to the inadequate care of the parent as well as the third party.
The second preliminary point is that to be within section 31(2)(b)(i) the care given or likely to be given must fall below an objectively acceptable level. That level is the care a reasonable parent would provide for the child concerned. Thus an absence of a reasonable standard of parental care need not imply that the parents are at fault. It may be, for instance, that for reasons beyond their control the parents are not able to provide a reasonable standard of care for the child.
The issue between the parties is best explained by reference to the unhappy facts of this case. They are set out in the judgment of the Court of Appeal, reported at [2000] 2 W.L.R. 346. The essential features are these. Child 'A', a baby girl, was born on 30 March 1998. Her parents were living together. A's mother returned to work three months later, on 13 July, and for the next two months A was looked after by several people. On 7 September 1998 a paid childminder, with a child of her own (child 'B', born on 26 February 1998), took over responsibility for looking after A while A's parents were at work. During the day A was looked after by B's mother in her (B's mother's) home. Otherwise A's parents looked after A in their own home.
After this arrangement had been place for two months, on 2 November 1998 A was found to have sustained serious non-accidental head injuries. She was then seven months old. The local authority applied for a care order in respect of A, and subsequently in respect also of B. On 3 December A was discharged from hospital to foster carers. At a finding of fact hearing which commenced in court on 1 March 1999 the local authority, in respect of both A and B, sought to satisfy the threshold conditions by relying exclusively on the injuries sustained by A between September and November 1998. The local authority did not seek to rely upon any other incident which might have amounted to poor or deficient care by A's parents, nor did it suggest that the choice of B's mother as child-minder constituted deficient care on the part of A's parents.
His Honour Judge Gee, sitting in the Blackburn County Court, found that in the period of six weeks prior to 2 November A had suffered at least two episodes of violent shaking, resulting in serious non-accidental injuries. The injuries comprised subdural haemorrhages, retinal haemorrhages and cerebral atrophy. They constituted significant harm for the purpose of section 31. The injuries had been inflicted by a member of household A or household B, but not both. The father of B was not the perpetrator of any of the injuries, but the evidence was such that it was not possible to decide which of A's mother, A's father, or B's mother was the perpetrator. Judge Gee expressed the dilemma confronting him in these stark terms:
The judge then applied to the facts of this case an observation of Wall J. in In re G (A Minor)(Care Order: Threshold Conditions) [1995] Fam. 16, 20:
Since he was unable to conclude that the harm suffered by A was attributable to A's mother or father, Judge Gee dismissed the care order application regarding A. As to B, this child had suffered no harm. Nor could B be regarded as at risk of harm in the future because it had not been established that B's mother had caused the injuries to A. The judge therefore also dismissed the care order application regarding B. Judge Gee reached these conclusions with evident reluctance. He said that the case called out for at least a supervision order which would give the local authority, to an extent, the right to keep an eye on the situation. He made an interim care order in respect of both children pending the hearing of an appeal.
The Court of Appeal (Lord Woolf M.R., Butler-Sloss and Robert Walker L.JJ.) reversed the judge's decision regarding A and upheld his decision regarding B. The court held that Judge Gee had interpreted the language of the threshold conditions too narrowly. The 'attributable' condition is satisfied if the harm is attributable to an absence of proper care to the objective standard laid down in that condition. Giving the judgment of the court, Robert Walker L.J. said (at [2000] 2 W.L.R. 346, 356):
The court added, regarding such a case, that 'apportionment of responsibility as between the various carers is both imponderable and irrelevant, even if they are alternate rather than joint carers.' Before the House is an appeal by A's parents against this decision. The Court of Appeal's decision regarding B is not the subject of an appeal to this House. Accordingly, the correctness of the latter decision is not a matter before your Lordships.
I can now identify the issue of interpretation arising on this appeal. In a case based on present harm ('is suffering . . . significant harm') the attributable condition requires the court to be satisfied that the harm is attributable to the care given to the child or, which is not this case, to the child's being beyond parental control. That nexus must be established on the basis of proved facts. But that prompts the question: care by whom? The contention of A's parents is that, having regard to the statutory context and the legislative policy behind Part IV of the Children Act, 'the care given to the child' in section 31(2)(b)(i) means the care given to the child by the parents or other primary carers. The contrary contention, advanced by the local authority and A's guardian, is that no such limiting words are to be read into the statute: the relevant phrase means the care given by anyone who plays a part in the care arrangements for the child.
Stated more fully, the submission made by Mr. Harris Q.C. on behalf of A's parents was that at the heart of the Children Act is the belief that the welfare and development of children are in general best secured if they are brought up within the family by both parents playing a full part in their upbringing. The same philosophy applies, correspondingly, where substitute primary carers are bringing up a child in a settled home. The state, acting through a local authority, should only be permitted to intervene in the family life of the child by means of a care order if it can demonstrate that intervention is necessary for the child's protection by reason of some serious deficiency in care on the part of the parents or other primary carers, as the case may be, and that no other course is appropriate. Counsel submitted that a strictly literal interpretation of the phrase under consideration would lead to an absurdity. Parliament cannot have intended that a child should be at risk of being removed from his family, and the parents at risk of losing their child, because of an unforeseeable failure of care by a third party to whom the parents, wholly unexceptionably, had temporarily entrusted the child.
Counsel further submitted that the statutory phrase is ambiguous, and invited your Lordships' attention to observations made by Lord Mackay of Clashfern L.C. in this House when promoting the Children Bill. Two instances will suffice. On the second reading of the Bill Lord Mackay stated (Hansard, 6 December 1988, col. 493):
At the committee stage Lord Mackay said (Hansard, 19 January 1989, cols. 349, 350):
This is a forceful argument, up to a point. I accept that the interpretation of the attributable condition urged on behalf of the respondents and upheld by the Court of Appeal is too wide and loose. For this one needs to look no further than Mr. Harris Q.C.'s example of the one-off temporary entrustment of the child to a person reasonably believed by the parents to be suitable. Injury inflicted by the temporary carer would satisfy the threshold conditions. But the appellants' argument goes too far in the other direction. The interpretation urged on behalf of the appellants is too rigid. As with the respondents' submission, so also with the appellants' submission: the conclusion to which it leads cannot be right. As the present case exemplifies, the appellants' argument, if accepted, produces the result that where a child has repeatedly sustained non-accidental injuries the court may nevertheless be unable to intervene to protect the child by making a care order or, even, a supervision order. In the present case the child is proved to have sustained significant harm at the hands of one or both of her parents or at the hands of a daytime carer. But, according to this argument, if the court is unable to identify which of the child's carers was responsible for inflicting the injuries, the child remains outside the threshold prescribed by Parliament as the threshold which must be crossed before the court can proceed to consider whether it is in the best interests of the child to make a care order or supervision order. The child must, for the time being, remain unprotected, since section 31 of the Children Act and its associated emergency and interim provisions now provide the only court mechanism available to a local authority to protect a child from risk of further harm.
I cannot believe Parliament intended that the attributable condition in section 31(2)(b) should operate in this way. Such an interpretation would mean that the child's future health, or even her life, would have to be hazarded on the chance that, after all, the non-parental carer rather than one of the parents inflicted the injuries. Self-evidently, to proceed in such a way when a child is proved to have suffered serious injury on more than one occasion could be dangerously irresponsible.
There is a further factor which weighs with me. Sadly, the unhappy facts of the present case are far from being exceptional. As the Court of Appeal observed, the task of caring for children is often shared nowadays between parents and others. When questions of non-accidental injury or abuse arise, the court is frequently unable to discover precisely what happened. This is not surprising. And yet, on the appellants' construction of the attributable condition, in this common form situation of shared caring the court is powerless to make even a supervision order if the judge is unable to penetrate the fog of denials, evasions, lies and half-truths which all too often descends in court at fact finding hearings. Indeed, in the present case the judge observed, regarding the evidence of one witness, that it was impossible to identify what was or might have been fact and what was or might have been fiction.
Against this background, I consider that a permissible and preferable interpretation of section 31(2)(b)(i), between the two extremes, is as follows. The phrase 'care given to the child' refers primarily to the care given to the child by a parent or parents or other primary carers. That is the norm. The matter stands differently in a case such as the present one, where care is shared and the court is unable to distinguish in a crucial respect between the care given by the parents or primary carers and the care given by other carers. Different considerations from the norm apply in a case of shared caring where the care given by one or other of the carers is proved to have been deficient, with the child suffering harm in consequence, but the court is unable to identify which of the carers provided the deficient care. In such a case, the phrase 'care given to the child' is apt to embrace not merely the care given by the parents or other primary carers; it is apt to embrace the care given by any of the carers. Some such meaning has to be given to the phrase if the unacceptable consequences already mentioned are to be avoided. This interpretation achieves that necessary result while, at the same time, encroaching to the minimum extent on the general principles underpinning section 31(2). Parliament seems not to have foreseen this particular problem. The courts must therefore apply the statutory language to the unforeseen situation in the manner which best gives effect to the purposes the legislation was enacted to achieve.
I recognise that the effect of this construction is that the attributable condition may be satisfied when there is no more than a possibility that the parents were responsible for inflicting the injuries which the child has undoubtedly suffered. That is a consequence which flows from giving the phrase, in the limited circumstances mentioned above, the wider meaning those circumstances require. I appreciate also that in such circumstances, when the court proceeds to the next stage and considers whether to exercise its discretionary power to make a care order or supervision order, the judge may be faced with a particularly difficult problem. The judge will not know which individual was responsible for inflicting the injuries. The child may suffer harm if left in a situation of risk with his parents. The child may also suffer harm if removed from parental care where, if the truth were known, the parents present no risk. Above all, I recognise that this interpretation of the attributable condition means that parents who may be wholly innocent, and whose care may not have fallen below that of a reasonable parent, will face the possibility of losing their child, with all the pain and distress this involves. That is a possibility, once the threshold conditions are satisfied, although by no means a certainty. It by no means follows that because the threshold conditions are satisfied the court will go on to make a care order. And it goes without saying that when considering how to exercise their discretionary powers in this type of case judges will keep firmly in mind that the parents have not been shown to be responsible for the child's injuries.
I recognise all these difficulties. This is indeed a most unfortunate situation for everyone involved: the child, the parents, the child-minder, the local authority and the court. But, so far as the threshold conditions are concerned, the factor which seems to me to outweigh all others is the prospect that an unidentified, and unidentifiable, carer may inflict further injury on a child he or she has already severely damaged.
In reaching this decision I have not overlooked the observations made by Lord Mackay when promoting the Children Bill. Nor have I overlooked the numerous passages from books and government publications drawn to your Lordships' attention. Many of these appear to take for granted that the deficient care referred to in the attributable condition is that of a parent. Sometimes this is stated expressly; for instance, in Cretney and Masson, Principles of Family Law, 6th ed, (1997) p. 805 ('Significant harm must be attributable to care given by the parent to the child'). In none of these publications do the authors express a view contrary to the appellants' construction of the key phrase in section 31(2)(b).
In the present context all these observations and passages suffer from the drawback that they do not address the particular problem raised in the present type of case. For the most part they are concerned with the straightforward distinction between harm caused by deficient care given by the parents (which satisfies the attributable condition) and harm caused solely by a third party (which does not, unless the parent failed to prevent it). As a proposition of general principle that is correct. But this leaves unresolved the case where, in practice, application of the general principle is thwarted: care is shared between the parents and others, the child has sustained harm from deficient care given by one or other of the carers, but in practice it is impossible to identify which carer is responsible. As discussed above, there are particular difficulties and risks in such a case. Generalised statements, not dealing with this special type of case, provide little or no assistance.
Nor can the appellants gain any succour from previous judicial utterances. None of the judicial dicta to which your Lordships' attention was drawn can properly be read as expressions of judicial view on the point now under consideration. I mention the two statements which were the high-watermarks of this part of the appellants' case. In Northamptonshire County Council v. S. [1993] Fam. 136 two children had suffered physical abuse while in the care of their parents. The father proposed that if a care order were not made the children should be cared for by his mother. The father submitted that, this being so, the threshold conditions were not satisfied: the harm caused by the parents could not be attributed to the care 'likely to be given to [the child] if the order were not made', viz., the care of the grandmother. In rejecting this misconceived submission Ewbank J. said, at p. 141, that the 'threshold test relates to the parent or other carer whose lack of care has caused the harm referred to in s 31(2)(a).' Similarly with regard to the dictum of Wall J. in In re G (A Minor)(Care Order: Threshold Conditions) [1995] Fam. 16, 20, relied upon by Judge Gee in the present case: there, the point at which Wall J. directed his observation, quoted above, was that a parent's consent to a care order is not enough for the purpose of satisfying the threshold conditions. The judge rightly said that no agreement between the parties can relieve the court of its duty to satisfy itself by evidence that the conditions have been met.
The appellants also advanced an argument that the continuation of the care proceedings, with the result that A remained in foster care, infringed the rights of A and her parents to respect for their family life guaranteed by article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969). Once the local authority realised, or should have realised, that it could not prove A was injured by either of her parents, it should have discontinued the proceedings and restored A to her parents' care. I do not agree. The steps taken so far have been no more than those reasonably necessary to pursue the legitimate aim of protecting A from further injury. They are within the exception set out in article 8(2).
I would dismiss this appeal. On the facts found by the judge the threshold conditions were met.
LORD HOFFMANN

My Lords,
I have had the advantage of reading a draft of the speech of my noble and learned friend Lord Nicholls of Birkenhead. For the reasons he has given, I too would dismiss this appeal.
LORD CLYDE

My Lords,
I agree that this appeal should be dismissed.
The question here is one of the application of section 31(2)(b)(i) of the Children Act 1989 to the somewhat special circumstances of the case where the precise source of the harm suffered by the child has not been identified. That subsection relates to the harm or likelihood of harm being attributable to the care given or likely to be given to the child. Harm is more likely to be caused by a deficiency of care rather than its existence. But the word "care" here must be being used in quite a general sense, indicating a standard of care, the standard being, as the section explains, that which it would be reasonable to expect a parent to give him. The section is seeking to exclude harm which is attributable to other factors than the care given to the child, or, as the final part of the subsection says, the child's being beyond parental control. Subject to that situation, harm which is not attributable to the care given to the child, for example, harm which has come about through some unforeseeable event against which no one could have taken any precaution, will not fall within the scope of the section. On the other hand the care which a parent would reasonably be expected to give to a child may include the need to confirm that a child may safely be entrusted to the care of some other person, before handing over the child into the care of that other person.
The principle proposition advanced for the appellants was to the effect that the section requires the court to be satisfied that the harm or likelihood of harm to the child is attributable to the care given to the child by someone who had the care of the child in the sense of being a parent or in the position of a parent. I have not been persuaded that the section should be so construed. In the present case, where the child was certainly harmed by someone and that person was either her father or her mother or a person who acted as a childminder for certain hours of the day I see no necessity for the court to have to be satisfied for the purposes of the section precisely which of the three contributed to the harm. I do not consider that such a restricted construction of the section is appropriate and I reach this view for three reasons.
In the first place the language of the subsection does not point to the necessity of identifying the individual who caused or would be likely to cause the harm to the child. The harm, or the likelihood of harm, must be attributable to the care given, or likely to be given, to the child. There is no mention of the author of the harm. It is true that the subsection refers to the care as "not being what it would be reasonable to expect a parent to give to him." But that phrase simply defines the standard or level of care. It is an objective test. The selection of that standard does not restrict the scope of the persons who may be responsible for the care given to the child in the particular case. What the subsection requires is the identification of the incidence of harm, or the risk of harm, attributable to the care of the child, not the identification of the hand which caused, or may be likely to cause, it. That the harm must be attributable to the care given to the child requires that the harm must be attributable to the acts or omissions of someone who has the care of the child and the acts or omissions must occur in the course of the exercise of that care. To have the care of a child comprises more than being in a position where a duty of care towards the child may exist. It involves the undertaking of the task of looking after the child. No formal step is necessarily involved in the taking on of that task, and it is not necessarily taken on by anyone who engages with the child. The section appears to relate to anyone who at least at some period is giving care to the child. That responsibility may be possessed by others than the child's parents or persons who are acting as parents. The question whether a person is giving care to a child is a question of fact.
In this connection I should add that I have found no sufficient guidance for the particular problem raised in the present case from the various quotations to which we were referred whether in debate or commentary prior to the passing of the Act or thereafter or from the reported decisions, because they were dealing with the matter in a more general way than the present case requires. It is no doubt usually the care of the parents which alone is in issue in the context of care proceedings and it is understandable that it is to the care of parents that reference is naturally made. But that is not to mean that it is their care alone with which the section is concerned.
Secondly, the construction for which the appellants contend involves reading in to the subsection some restriction on its scope so as to limit it to care given by particular kinds of people. A restriction to care given by parents would obviously be too narrow since it would exclude any case where a child was in the care of someone other than a parent, such as a close relative, perhaps because of the absence or the death of the parents. So the appellants seek to include in those giving the care persons referred to as "primary carers." That would at least avoid too restrictive a construction but one looks in vain in the statute for the need to read in such a restriction. Moreover while in practice the term may be conveniently adopted as a term of reference, there may well be problems of definition in determining for the purposes of the statutory provision the precise persons who would qualify as a "primary carer." In a provision such as the present it would be desirable to avoid difficult questions of application.
Thirdly, it has to be remembered that the function of the section is to define the jurisdiction of the court in entertaining an application for a care order or a supervision order. In terms of subsection (2) the court may only make such an order if it is satisfied that the circumstances specified in the subsection exist. The section merely opens the way to the possibility that an order may be made. The making of the order requires a much more careful consideration of the case with regard in particular to the matters specified in section 1(3) of the Act, subject always to the paramount consideration of the child's welfare, as specified in section 1(1). So it is reasonable to allow a degree of latitude in the scope of the jurisdictional provision, leaving the critical question of whether the circumstances require the making of an order to a detailed assessment of the welfare of the child. The definition of the occasions on which the court may entertain an application for a care order or a supervision order may usefully be wider than the definition of the circumstances in which the court will take the actual step of handing over the upbringing of the child to a local authority or requiring some supervision of the child's continued care. Even if the court has jurisdiction to make an order it by no means follows that an order will be made.
I would make two further observations. The first is, and the matter cannot be too often repeated, that the intervention by the state into matters of family life may often call for immense caution and restraint. The policy of the Act is to secure the welfare of children. But that policy recognises that that object will very often be best served by retaining the child in the custody of his or her parents and that very considerable harm may be done by an intervention, however well intentioned. The court may be able to provide an eventual safeguard against inappropriate steps taken in the belief of necessity, but even the making of an application is a step not lightly to be embarked upon. The stress which care proceedings may well impose on the parents may even itself be damaging to the child. If the parents are themselves in fact innocent of any harm to the child the proceedings may simply be defeating the basic purpose and the policy of the Act. The initiating of proceedings may in some cases be readily and immediately a matter of obvious necessity. But in other cases it may be something not to be embarked upon without careful deliberation and a professional objectivity. The granting of a care order will only be done by the court after consideration of the matters detailed in section 1 and in particular the requirement in section 1(5) that the order is only to be made if the making of it would be better for the child than the making of no order at all. The need for caution and restraint is underlined by the provisions of article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969).
Secondly, while there is a necessity to resolve questions of law in the construction of statutory powers, a matter which involves adversarial debate, the operation of the Act should ideally be matter of co-operation between all those bearing responsibility for the welfare of the child, working together to secure that the child's interests are best served. To that end it is obviously desirable so far as possible to minimise formality and to avoid delay in the procedures which require to be followed. Indeed section 32 of the Act expressly recognises that latter necessity. The part played by the court, where it is necessary to have recourse to court proceedings, is vital in securing an impartial and objective resolution of the problem. But even there a degree of flexibility in the management of each case may be appropriate. While the present case has concerned the resolution of what is logically a preliminary point of jurisdiction, a point which in some cases may determine the outcome, it is not to be concluded that this should necessarily constitute a separable episode in the management of a case. But how each case is to be handled, within the scope of the prescribed procedural rules, must be a matter for the judge to whom it has been entrusted.

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