Welcome to a warm and humid week.
Our question this week focuses on terrorism, child welfare and where we draw the line when it comes to social engineering.
A recent article in the Guardian describes how several children, ranging from the ages of 3 to 17, have become the subjects of Interim Care Orders or Wards of Court, due to radicalisation fears. The article does not detail how the family courts have come to this conclusion, nor what the behaviours in question were to justify removal.
In the Family Courts, orders of this type can be made if the judge takes the view that a child is suffering or likely to suffer significant harm. We add a good summary of the principles below:
Actual or Likely Significant Harm
S. 31 of the Children Act 1989 sets out the legal basis or the ‘threshold criteria’ on which a Family Court can make a Care or Supervision Order to a designated LA in respect of a particular child. This is:
That the child must be suffering, or likely to suffer, significant harm.
And that the harm or likelihood of harm must be attributable to one of the following:
a) The care given to the child, or likely to be given if the order were not made, not being what it would be reasonable to expect a parent to give; or
b) The child being beyond parental control.
If the LA can demonstrate evidence (on a balance of probabilities) that the threshold criteria have been met, the Court will then go on to consider whether making a Care or Supervision Order would be in the child’s best interests. Whether a child is likely or not to suffer harm will also form part of the criteria for the initiation of a S.47 investigation but may be an actual lower threshold than the test applied by the Court. Thresholds of harm for a S.47 investigation are likely to be defined by the local LSCB or local practice in a LA area.
The Children Act 1989 defines ‘harm’ as “ill-treatment or the impairment of health or development”. ‘Development’ means physical, intellectual, emotional, social or behavioural development; ‘health’ means physical or mental health; and ‘ill-treatment’ includes sexual abuse and forms of ill-treatment which are not physical. As a result of the Adoption and Children Act 2002, the definition of harm also includes “impairment suffered by hearing or seeing the ill-treatment of another”.
According to Working Together, significant harm refers to “the threshold that justifies compulsory intervention in family life in the best interests of children, and gives LAs a duty to make enquiries to decide whether they should take action to safeguard or promote the welfare of a child who is suffering or likely to suffer significant harm”.
The legislation, however, does not define the line between ‘harm’ and ‘significant harm’. As a practitioner, you should give ‘significant’ its ordinary meaning (i.e. considerable, noteworthy or important). The child’s particular characteristics also need to be taken into consideration. For example, a child left home alone at the age of 3 could be at risk of significant harm, whereas a child aged 13 years may be less likely so. The test will be subjective to the particular circumstances.
Whether the harm is significant is determined by comparing the child’s health and development with what could reasonably be expected from a similar child. For example, if a child is failing to meet developmental or physical milestones, it is necessary to determine whether this is the result of a lack of “good enough” parenting. There is no clearly defined criteria to judge whether harm meets the threshold of ‘significant’—it can be the result of a traumatic event or a compilation of acute and long-standing events. As highlighted in Working Together, “Some children live in family and social circumstances where their health and development are neglected. For them, it is the corrosiveness of long-term emotional, physical or sexual abuse that causes impairment to the extent of constituting significant harm.”
Working Together lists the following as factors to consider in understanding and identifying significant harm:
The nature of harm, in terms of maltreatment or failure to provide adequate care;
The impact on the child’s health and development;
The child’s development within the context of their family and wider environment;
Any special needs, such as a medical condition, communication impairment or
disability, that may affect the child’s development and care within the family;
The capacity of parents to meet adequately the child’s needs; and
The wider and environmental family context.
‘Likely to Suffer’
A child being ‘likely to suffer significant harm’ does not mean that there is a more than 50 percent chance that the child will suffer or that it is more likely than not that the child will suffer significant harm. Rather, ‘likely’ in S. 31 refers to a ‘real, substantial risk.’ If a Court considers the likelihood of harm to be based on past events regarding which there are disputed facts, it must first make a finding of fact before treating the past event as a grounding of future risk, as has been held by the Supreme Court in Re. S-B  UKSC 17.
Our question then, is just this – where would you draw the line when it comes to the court’s threshold of risk of significant harm when removing children from parents or monitoring family activity?
For example, what kind of behaviours would you include and how is freedom of speech affected? And most importantly, how do we measure the existence or risk, of harm?