section 31 children act 1989 a court may only make a care order or supervision order if it is...

Section 31 Children Act 1989 A court may only make a care order or

supervision order if it is satisfied (a) that the child concerned is suffering, or

is likely to suffer, significant harm; and (b) that the harm, or likelihood of harm, is

attributable to—(i) the care given to the child, or likely to be

given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii) the child’s being beyond parental control.

Octagon Legal. On your side.

Section 1(1) Children Act 1989 (1) When a court determines any

question with respect to—(a) the upbringing of a child; or(b) the administration of a child’s property or

the application of any income arising from it,

the child’s welfare shall be the court’s paramount consideration.


What is Neglect?

Not mentioned in the Children Act 1989. “Ill-treatment” is. Often omission, rather than commission. Often neglect occurs along with physical

or sexual abuse (Cleveland Report 1987).


Questions to ask (whether EPO, ICO, or final).

Is the child being neglected? What is the evidence? Is it significant harm? How has it been caused?


Evidencing Physical neglect. Hygeine.

ChildHome conditions.

Lack of food. Child’s own space (e.g. bedroom)

E.g. state and temperature and security. Medical needs not met. Lack of supervision (cross-over with

emotional neglect). Drugs and alcohol?



A Picture tells a thousand words

Limitations of pictures.

Photographs alone are not enough. Need to ask parents if there are

explanations (e.g. is the bedding in the washing machine?)

Some things don’t photograph – smells etc.

“Snapshots” may or may not be representative of the life of the child.


Evidencing Emotional Neglect Specific incidents.

E.g. examples of failure to○ supervise○ protect ○ seek timely medical help○ ensure the child attends appointments for his/her

health and welfare○ promote their education and attendance at the

school etc (Re O (A minor) (Care Order: Education: Procedure) [1992] 2 FLR 7)

○ stimulate through attention and play etc○ develop the social relations of the child through

his/her interaction with others


Evidencing Failure to Protect Arguably not neglect, but failure to prevent

physical abuse. Is not intervening to protect children a sort

of neglect? How to prove it?

Paediatric evidence.Other evidence of parental concern or lack of it.Evidence of putting partner before child.Useful example at para 27 of A Borough Council

v YZ and Others [2014] EWCG 2163 (Fam).


Analysis of the evidence Is it a transient short-term incident? Parents’ response to previous advice? More than one visit probably needed. Description of symptoms / unusual behaviour. Liaison with other professionals who know the

child for corroboration (or not). Professional analysis based on expertise of

the SW (e.g. analysis of the harm caused by neglect, and of the big picture of what seemingly small examples mean as a whole).


Social Work expertise Other experts harder to come by (Part 25 FPR

2010). Social Workers: trust your expertise.

CAFCASS publication “Three weeks in November” (2014) showed Guardians considered that SWs usually got it right.

Munby P says you are experts! He told the House of Commons “In my book, social workers are experts” (HC Deb 5 March 2013 col 33)

First impressions count (but aren’t enough). Repeat visits are essential. Blip or long-standing? Assess insight of parents into the problems. What other things might look like emotional neglect?


Obesity Controversial but growing area of neglect. Rising number of cases of children being

removed.Daily Mirror FOI request shows 74 in last 5

years. At least one arrest of parents for child

cruelty (King’s Lynn). 11 year old son BMI of 41.8 – 15 stone.

Need to evidence by reference to Threshold criteria.


Future Harm Emotional harm through neglect which has not

yet happened needs extra careful analysis.What is the nature of the likely harm?It is significant (“considerable, noteworthy or

important” – Re B)? If so why and in which ways?Has to be attributable to lack or likely lack of

reasonable parental care, not simply how people are. In what way(s) is the care falling or likely to fall below the reasonable standard?

Analyse likelihood of the harm against its significance.

“Risk” not enough. Must be “likely”. (Re J [2013] UKSC 9).


What’s NOT neglect? Re A (A Child) [2015] EWFC 11: “The

city fathers of Darlington and Darlington's Director of Social Services are not guardians of morality. Nor is this court. The justification for State intervention is harm to children, not parental immorality.” (F was former member of English Defence League and when 17 had had sex with 13 year old girl).


“Fallible humanity” Hedley J in Re L (Care: Threshold Criteria) [2007] 1

FLR 2050, para 50: "society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done."


Definition of Significant Harm CA ‘89 s.31(9), 'harm' means 'ill-treatment

or the impairment of health or development...' and 'development' includes 'emotional... development'.

Section 31(10): 'Where the question of whether harm suffered by a child is significant turns on the child's health or development, his health or development shall be compared with that which could reasonably be expected of a similar child’.


Re B (A Child) [2013] UKSC 22(Defining Significant Harm) Lord Wilson: whereas the concept of 'ill-treatment' is

absolute, the concept of 'impairment of health or development' is relative to the health or development which could reasonably be expected of a similar child (described as little more than common sense) [25].

Otherwise, the court wished to avoid an attempt at explaining the word 'significant' and did not wish to add a gloss to the statute [26].

Lady Hale liked the dictionary definition of 'significant’, namely 'considerable, noteworthy or important', stating that there would be no point in a threshold if it could be crossed by trivial or unimportant harm [185].

Likelihood of future harm needs extra care in arguing it.


Causation Second part of Threshold test: “that the harm,

or likelihood of harm, is attributable to—(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or(ii) the child’s being beyond parental control.”

Nature or nurture.Developmental disorders? Paediatric evidence.Effect on child of being placed in care (if (s)he has been). Treat with care

○ – fact that a foster carer is a better carer is not the same as Threshold,

○ - but can help identify the sorts of harm that have taken place by nurture, rather than nature.


Threshold is a value judgment. Supreme Court in Re B (2013):

Whether threshold crossed is not a question of law.

Nor a q uestion of primary fact.Not an exercise of discretion.Decision involving exercise of judgment, an

‘appraisal’ or ‘evaluation”.A value judgment, made on the basis of the

facts found.


FPR 2010. The Overriding Objective. Rule 1.1 “enabling the court to deal with cases justly, having regard to the welfare

issues involved.

(2) Dealing with a case justly includes, so far as is practicable –

(a) ensuring that it is dealt with expeditiously and fairly;

(b) dealing with the case in ways which are proportionate to the nature,

importance and complexity of the issues;

(c) ensuring that the parties are on an equal footing;

(d) saving expense; and

(e) allotting to it an appropriate share of the court's resources, while taking

into account the need to allot resources to other cases.


Court’s power to control evidence 22.1 (1) The court may control the evidence by giving directions as to

(a) the issues on which it requires evidence;

(b) the nature of the evidence which it requires to decide those issues; and

(c) the way in which the evidence is to be placed before the court.

(2) The court may use its power under this rule to exclude evidence that

would otherwise be admissible.

(3) The court may permit a party to adduce evidence, or to seek to rely

on a document, in respect of which that party has failed to comply with

the requirements of this Part.

(4) The court may limit cross-examination.


What evidence will be called? 22.2 (1) The general rule is that any fact which needs to be proved by the

evidence of witnesses is to be proved –

(a) at the final hearing, by their oral evidence; and

(b) at any other hearing, by their evidence in writing.

(2) The general rule does not apply –

(a) to proceedings under Part 12 for secure accommodation orders,

interim care orders or interim supervision orders; or

(b) where an enactment, any of these rules, a practice direction or a

court order provides to the contrary.


EPO’s – anything goes. Children Act 1989 section 45(7): (7) Regardless of any enactment or rule of law

which would otherwise prevent it from doing so, a court hearing an application for, or with respect to, an emergency protection order may take account of—

any statement contained in any report made to the court in the course of, or in connection with, the hearing; or

any evidence given during the hearing, which is, in the opinion of the court, relevant to

the application.


Oral evidence v Submissions Oxfordshire County Council v S [1993] Fam 158,

[1993] 2 WLR 216, [1993] 1 FLR 559, Cazelet J Justices should be cautious about changing a child's

residence on an interim order – the preferred course is to leave the child but make a direction, with safeguards, for an early hearing date:

if the interim order would lead to a change in residence, oral evidence should be admitted and challenged by cross-examination, but evidence should be restricted to the interim position;

Justices should ensure that they have written advice from the children's guardian. A party opposed to the guardian's advice should have the opportunity to put questions.


Importance of fairness at interim hearings. Re NL (A child) [2014] EWHC 270. Pauffley J. M was in a “specialist treatment unit in the north of England”. Previous children had been removed. Drugs and alcohol issues. After baby’s birth, no concerns by hospital staff about her care. LA commissioned a psychologist to report on M within a day. On

paper. Did not meet M. Said prognosis for change was “extremely poor”.

1st hearing, M did not consent or oppose. Child removed to foster care.

6 days later, at second hearing, Justices continued ICO, relying on “status quo”.

Pauffley J v worried: Said first consideration should have been to consider whether NL could remain safely with his mother as a 'holding' position pending the contested hearing, particularly in the face of unequivocally positive reports from the maternity hospital.


Re NL (continued) “This case provides a good example of how once

separation has occurred there can be a certain inevitability that it will be perpetuated. It is often and rightly said that the decisions taken about placement at the outset of public law proceedings are amongst the most significant. They can be and often are the most difficult. All the more reason, I would say, for immense trouble to be taken so as to ensure those decisions are based upon good evidence and fully justified. Anything less would be to ignore that a child, as the result of what occurs at the beginning of proceedings, may be denied the opportunity, ultimately, of remaining within his natural family.”


Holistic analysis at all stages. Removal of a child from parents causes

emotional harm. A decision to remove them from danger comes at a price.

Re B-S; consider and evaluate all options together.

Logic suggests that should be the case at interim stage too where removal is contemplated.Foster care,Family members,Residential assessment,Mother and baby foster care.


Re L (A Child) [2013] EWCA Civ 179 Parker J made an ex parte ICO, and

then allowing it to be argued about, immediately after, on submissions only.

Court of Appeal stressed how clear it was that ICO was required.

The stronger the evidence looks, the less likely oral evidence will be given.

Good evidence at the first hearing is therefore vital.


Use first-hand evidence if possible "Of course the court can act on the basis of evidence

that is hearsay. But direct evidence from those who can speak to what they have themselves seen and heard is more compelling and less open to cross-examination. Too often far too much time is taken up by cross-examination directed to little more than demonstrating that no-one giving evidence in court is able to speak of their own knowledge, and that all are dependent on the assumed accuracy of what is recorded, sometimes at third or fourth hand, in the local authority's files.” (Munby J in Re A (A Child) [2015] EWFC 11).


Submissions only.

Interim Care Orders are increasingly dealt with on submissions.

The pro forma Case Management Order rather expects it, the default being “time estimate half a day. Submissions only”.


Concluding remarks. Quality and clarity of evidence from primary

source. Corroboration where possible. Always refer back to section 31 (both

parts). Always think about it from the Judge’s

perspective. Analyse the various options (balance-sheet

approach) in any statement seeking or opposing separation.


section 31 children act 1989 a court may only make a care order or supervision order if it is...

Documents

octagon legal

evidencing physical

sort of neglect

child attends appointments

child home conditions

significant harm

childs welfare

likelihood of harm