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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> LBH (The Local Authority) v KJ (The Mother) & Ors [2007] EWHC 2798 (Fam) (28 November 2007) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2007/2798.html Cite as: [2007] EWHC 2798 (Fam) |
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This judgment is being handed down in private on 28th November 2007. It consists of ten pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Strand, London, WC2A 2LL |
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B e f o r e :
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L.B.H. (The Local Authority) |
Applicant |
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- and - |
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KJ (The Mother) IH (The child) (by her guardian CJ) |
Respondents |
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Ms Melanie Johnson (instructed by Wilson & Co) for the mother
Mr David Marcus (instructed by the Guardian) for the child
Hearing dates: 7th, 8th & 9th November 2007
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Crown Copyright ©
The Hon. Mr. Justice Hedley :
INTRODUCTION
BACKGROUND
THE PROCEEDINGS
THE LAW
i) that the child concerned is suffering, or is likely to suffer significant harm; and,
ii) that harm or likelihood of harm, is attributable to –
a) the care given to the child, or likely to be given to him if the order were not made, not being what would be reasonable to expect a parent to give him; or
b) the child's being beyond parental control.
This provision has its classic exposition in the speech of Lord Nicholls of Birkenhead in Re H and R (Child Sexual Abuse) [1994] 1FLR 80 (HL). Those parts of his speech that deal with the burden and standard of proof are too well known to require detailed citation (though I bear them well in mind) but there are two passages which may well be of particular significance in this case. Having emphasised the need for proof of facts to sustain the threshold criteria, Lord Nicholls adds this –
I must now put this into perspective by noting, and emphasising, the width of the range of facts which may be relevant when the court is considering the threshold conditions. The range of facts which may properly be taken into account is infinite. Facts include the history of members of the family, the state of relationships within a family, proposed changes within the membership of a family, parental attitudes, and omissions which might not reasonably have been expected, just as much as actual physical assaults. They include threats and abnormal behaviour by a child, and unsatisfactory parental responses to complaints or allegations. And facts, which are minor or even trivial if considered in isolation, when taken together may suffice to satisfy the court of the likelihood of future harm. The court will attach to all the relevant facts the appropriate weight when coming to an overall conclusion on the crucial issue.
The court is obliged to view the case on a wide canvass. Never is that more important than in a case such as this. Lord Nicholls also makes a pertinent observation about the policy which underpins this part of the legislation –
These are among the difficulties and considerations Parliament addressed in the Children Act when deciding how, to use the fashionable terminology, the balance should be struck between the various interests. As I read the Act, Parliament decided that the threshold for a care order should be that the child is suffering significant harm, or there is a real possibility that he will do so. In the latter regard the threshold is comparatively low. Therein lies the protection for children. But, as I read the Act, Parliament also decided that proof of the relevant facts is needed if this threshold is to be surmounted. Before the section 1 welfare test and the welfare ' check list' can be applied the threshold has to be crossed. Therein lies the protection for parents. They are not to be at risk of having their child taken from then and removed into the care of the local authority on the basis only of suspicions, whether of the judge or of the local authority or anyone else. A conclusion that the child is suffering or is likely to suffer harm must be based on facts, not just suspicion.
That provides the framework within which the issues in this case have to be determined.
THE CHILD CONCERNED
THE MOTHER'S POSITION
HOW THE CHILD CAME TO BE ACCOMMODATED
"Professionals meeting. OT expressed concern that the accommodation was not suited to meet 'the child's' needs and could not be adapted. The mother had lost faith in the system and refused to bring 'the child' to school. It was suggested that the mother should apply to housing as homeless. Housing were looking for suitable property but one was not available. Concern was raised that 'the child' had missed her TB appointments which were vital because of her condition and that the children were not attending school and were not getting education at home while they were ill."
That in my view was a pretty accurate picture of how things were at this time.
THE SUBSEQUENT HISTORY
THE ATTEMPTED REHABILITATION
THE THRESHOLD CRITERIA
THE ATTRIBUTABILITY REQUIREMENT
CONCLUSIONS ON THRESHOLD
THE WAY AHEAD