In both private and public law cases, it is often said by one party or another, or by a professional such as a social worker, that placing a child with a parent, or allowing the child to spend unsupervised time with that parent, is “too risky”. The word “risk” however is at substantial risk (pun intended) of being overused or over simplified. How should the court forensically assess that risk?
We live in a world full of risk. It would be impossible to present the court with a “risk-free” option for placement of a child or for their time with a parent. The tribunal must therefore judicially exercise its functions to assess that risk and make a decision.
Fortunately, the courts have guidance from the Court of Appeal in how that exercise should be undertaken. In Re F (A Child – Placement Order- Proportionality) [2018] EWCA Civ 2761 Peter Jackson LJ sat with Longmore LJ and Asplin LJ and gave the leading judgment.
The central issue so far as the mother was concerned, was her chronic and excessive alcohol use. Peter Jackson LJ concluded that, although there had been reference to the risk arising to the child from that alcohol use, the trial judge did not gather the strands together and balance them out so as to justify a welfare conclusion that a placement order should be made [paragraph 27].
Happily, for the reader, the guidance of the court on the analysis of risk is set out very early on in the judgment, at paragraph 2, before going on to give the more detailed analysis. In summary, in relation to any suggested risk, the court should consider:
- The type of harm that might arise.
- The likelihood of it arising.
- The consequences: what would be the likely severity of the harm to [the child] if it did come to pass?
- Risk reduction/mitigation: would the chances of harm happening be reduced or mitigated by the support services that are or could be made available?
- The comparative evaluation: in light of the above, how do the welfare advantages and disadvantages of [the child] growing up with his mother compare with those of adoption?
- Proportionality: ultimately, is adoption necessary and proportionate [in this case?]
Without adding an unnecessary gloss on this advice, the writer would respectfully comment that point 1 is almost always highlighted by the party asserting risk, less so with point 2, and more rarely with 3 to 6. As advocates, we should be alive to cross-examination which concentrates on these areas.
As a “real life” working example, local authorities in public law cases often refer to a parent’s inability to protect from “risky adults”, usually the other parent or ex-partner. They may, for example, have shown a propensity for domestic abuse (the type of harm) but how likely is it, what would be the consequences, what can be done to reduce or mitigate the risk, and then weigh up the options in light of this analysis.
If the other parent can show that the risk is now historic, that it was at a level where the risk of harm was not significant, that protective measures and orders could reduce or mitigate the risk and that they can attend appropriate courses, then removal of the child from family may not be proportionate to the risk. Remember diverse standards of parenting – it is an inevitability of life that some children will suffer some harm.
For the avoidance of doubt, while Re F was a placement order/adoption case (it’s in the title), the analysis set out has been approved for use in other cases. See for example TT (Children: Discharge of Care Order) [2021] EWCA Civ 742 [paragraph 16 finding that the Judge at first instance was not wrong on this ground]: “the Judge directed himself on the assessment of risk by reference to the decision of this court in Re F (Placement Order: Proportionality) [2018] EWCA Civ 2761”.
In summary, when representing parents facing a case that the “risks” of placement of a child with them are “too great”, advocates should be careful to ensure that such a risk is properly analysed and all aspects of it are explored and brought together in an analysis by the court. A child’s Article 8 rights are firmly engaged, and in public law cases should not be overridden by inadequate analysis which leads to failure to balance the risks with proportionality.
Author: Robert Pettitt, Barrister, Deputy Head of Chambers
Mr Pettitt can be instructed by emailing his clerks at clerks@northampton-chambers.co.uk or by telephone at 01604 636271.
Disclaimer:
This publication is intended to be a general summary of the relevant law and/ or guidance at the time of writing. It should not replace legal advice tailored to your specific circumstances. No liability is accepted for any omission or error wherein.
References:
Re F: https://www.bailii.org/ew/cases/EWCA/Civ/2018/2761.html
TT: https://www.bailii.org/ew/cases/EWCA/Civ/2021/742.html