S 31 (2) Children Act 1989 provides that a court may only make a care order or supervision order if it is satisfied:-
- that the child concerned is suffering, or is likely to suffer, significant harm; and
- that the harm, or likelihood of harm, is attributable to-
- 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
- the child being beyond parental control.
All practitioners dealing with care proceedings will be very familiar with the relevant legal principles relating to the first limb of s 31(2) above, namely whether harm or likelihood of harm required arises from the deficiency of parental care specified. In almost every case, this is the limb relied upon by the Local Authority.
It was only when, highly unusually in my experience, a Local Authority in a matter in which I am instructed pleaded the second limb, necessitating research into the relevant legal principles and case law that it struck me how little guidance has been provided by the higher courts as to how this limb should be applied.
Whilst it is relatively rare for the issue to arise, I hope that this article will provide some assistance to other practitioners in cases that they might encounter.
Unlike the first limb, the second limb does not include any reference to any deficit in the parenting provided previously or likely to be provided in the absence of an order, falling short of what it would be reasonable to expect. The requirement on a grammatical construction appears to simply be for it to be established that the child is suffering from or is likely to suffer significant harm, attributable to being beyond parental control.
Some earlier cases suggested that lack of parental control involved parental culpability. For example Re O (A Minor) (Care Proceedings; Education) [1992] 4 All ER 905 and M v Birmingham City Council [1994] 2 FLR 141.
In Lancashire County Council v Barlow [2000] UKHL 16, Lord Nicholls stated that:-
“The phrase “attributable” in s 31 (2) connotes a causal connection between the harm or likelihood of harm on the one hand and the care or likely care of the child being beyond parental control on the other” and that “the connection need not be that of a sole or dominant or direct cause and effect, a contributory causal connection suffices”.
This passage was quoted in the Re P decision that I will set out later in this article and will be repeated in the context of that decision.
In Re K (Post Adoption Placement Breakdown) [2012] EWHC 4148 (Fam) HHJ Bellamy sitting as a Deputy High Court Judge, was dealing with a case of adoption breakdown involving a child with significant mental health issues (both also aspects of the Re P case below).
Applying a Court of Appeal decision Re L (A Minor) (below) he held that it is not necessary to prove parental fault to establish that a child is beyond parental control.
This decision was approved by Recorder Howe QC in Leeds, T (A Child: Care Order; beyond Parental Control; Deprivation of Liberty; Authority to Administer Medication) [2017] EWFC B1 in which he stated at paragraph 74):
“When addressing the meaning of “beyond parental control” HHJ Bellamy, at 152 of his judgement, referred to an unreported decision of Butler-Sloss LJ on 18th March 1997, the neutral citation being Re L (a Minor) [1997] EWCA Civ 1268. Within her judgement, Butler-Sloss LJ said the following:-
it is suggested most attractively by Mr Jubb in a long, careful, comprehensive skeleton argument and short, succinct oral argument to us that in order to show that a child is beyond parental control you must show some misfeasance by the parents. There is almost no authority on the phrase “beyond parental control” and certainly no authority to support the proposition, bold proposition as Mr Jubb is prepared to accept it as, that he makes to us today. We are asked to look at the useful Guidance to the Children Act, Volume 1, under ”Court Orders”, which says at paragraph 3.25:
“… The second limb is that the child is beyond parental control…..It provides for cases where, whatever the standard of care available to the child, he is not benefiting from it because of lack of parental control. It is immaterial whether this is the fault of the parents of the child. Such behaviour frequently stems from distorted or stressed relationships between parent and child”.
That seems to me to be a useful summary of how those who put the Act together saw the use of what is a long-standing part of the previous child legislation of “beyond parental control”.
I consider that we should be very careful not to look at the words of the Children Act other than broadly, sensibly and realistically. I am much encouraged by the words of wisdom of Sir Stephen Brown P in Newham London Borough Council v AG [1993] 1 FLR 281, [1993] Fam Law 122 in which he said (and I paraphrase) that the court should avoid an unduly restrictive and legalistic analysis of section 31. Quite simply this child is beyond the control of his parents. It is extremely sad. It is not a case of apportioning blame”.
As I have already remarked upon above, there is very little case law upon the subject. Whilst only a decision from a Family Court Circuit Judge and therefore not a binding authority, there is a reported case Re P (Permission to Withdraw Care Proceedings) [2016] EWFC B2 which provides helpful guidance, but also which takes issue with HHJ Bellamy in Re K above. It was another sad case.
The Local Authority’s care proceedings related to an adopted child whose placement had broken down (unfortunately not her first placement breakdown). Agreement had been reached that the proceedings should be withdrawn, but there was disagreement between the Local Authority and the parents as to whether threshold was established.
The child who was aged 16 (cases under the “beyond parental control” limb, almost always relating to teenage children) suffered significant mental health issues including a diagnosis of emotionally unstable personality disorder. There were instances of self-harm and she had been compulsorily detained.
The issue that the court was considering related to the question as to whether, the child having suffered significant harm and being beyond parental control (as was clearly the case in both respects) this required a causal link or whether it was sufficient for the court to be satisfied that establishing significant harm and being beyond parental control without that causal link was sufficient for threshold to be found.
The relevance of that distinction, which on the face of it might initially appear as being academic, was that if a causal link was necessary, then at least some blame could or might be imputed to the parents.
The judgement, by HHJ Redgrave, referred to the passage from Lord Nicholls in the Lancashire v B case above regarding the phrase “attributable” in s 31(2) (b) connoting a causal connection between the harm or likelihood of harm on the one hand and the care or likely care of the child is being beyond parental control on the other.
HHJ Redgrave said
“Under the Children and Young Persons Act 1969 the court had the power to remove the child from the care of his/her parents if it was satisfied that the child in question was beyond parental control. It was not necessary to show serious harm, or likelihood of harm. The Children Act 1989 changed the law and required harm/likelihood of harm to be proved and for it to be attributable to either the care given by the parents, or the child being beyond parental control. In my judgement the ordinary grammatical construction of the section requires the establishment of a causal connection by evidence, however slight. That is lacking in the documents filed in this case and with respect I cannot agree with paragraph 149 of HHJ Bellamy’s judgement in Re K above. Therefore, I give the Local Authority permission to withdraw these proceedings on the basis that it is unlikely in the current evidence to be able to prove threshold”.
She went on to say “There is no evidence of any kind that either the mother or the father are culpable in any way for the behaviour of their daughter and the harm she has suffered or is at risk of suffering in the future. They have fought tirelessly for her to receive the treatment she needs and my judgement this proceeding should never have been issued”.
To conclude, there are competing propositions as will be clear from the cases that I have referred to above. It seems to me however, that despite the difficulties in extrapolating principles from a dearth of case law, particularly in the Court of Appeal, the most binding authority available is that threshold can be found in respect of the beyond parental control limb without it being necessary to establish parental culpability.
However, as I think it demonstrated from my review of reported cases above, even now there is some reason for suggesting a lack of clarity, which hopefully in the future will be further addressed in the higher courts.
