Judgments - Lancashire County Council and Another v. Barlow and Another and One Other Action

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    In the first place the language of the subsection does not point to the necessity of identifying the individual who caused or would be likely to cause the harm to the child. The harm, or the likelihood of harm, must be attributable to the care given, or likely to be given, to the child. There is no mention of the author of the harm. It is true that the subsection refers to the care as "not being what it would be reasonable to expect a parent to give to him." But that phrase simply defines the standard or level of care. It is an objective test. The selection of that standard does not restrict the scope of the persons who may be responsible for the care given to the child in the particular case. What the subsection requires is the identification of the incidence of harm, or the risk of harm, attributable to the care of the child, not the identification of the hand which caused, or may be likely to cause, it. That the harm must be attributable to the care given to the child requires that the harm must be attributable to the acts or omissions of someone who has the care of the child and the acts or omissions must occur in the course of the exercise of that care. To have the care of a child comprises more than being in a position where a duty of care towards the child may exist. It involves the undertaking of the task of looking after the child. No formal step is necessarily involved in the taking on of that task, and it is not necessarily taken on by anyone who engages with the child. The section appears to relate to anyone who at least at some period is giving care to the child. That responsibility may be possessed by others than the child's parents or persons who are acting as parents. The question whether a person is giving care to a child is a question of fact.

    In this connection I should add that I have found no sufficient guidance for the particular problem raised in the present case from the various quotations to which we were referred whether in debate or commentary prior to the passing of the Act or thereafter or from the reported decisions, because they were dealing with the matter in a more general way than the present case requires. It is no doubt usually the care of the parents which alone is in issue in the context of care proceedings and it is understandable that it is to the care of parents that reference is naturally made. But that is not to mean that it is their care alone with which the section is concerned.

    Secondly, the construction for which the appellants contend involves reading in to the subsection some restriction on its scope so as to limit it to care given by particular kinds of people. A restriction to care given by parents would obviously be too narrow since it would exclude any case where a child was in the care of someone other than a parent, such as a close relative, perhaps because of the absence or the death of the parents. So the appellants seek to include in those giving the care persons referred to as "primary carers." That would at least avoid too restrictive a construction but one looks in vain in the statute for the need to read in such a restriction. Moreover while in practice the term may be conveniently adopted as a term of reference, there may well be problems of definition in determining for the purposes of the statutory provision the precise persons who would qualify as a "primary carer." In a provision such as the present it would be desirable to avoid difficult questions of application.

    Thirdly, it has to be remembered that the function of the section is to define the jurisdiction of the court in entertaining an application for a care order or a supervision order. In terms of subsection (2) the court may only make such an order if it is satisfied that the circumstances specified in the subsection exist. The section merely opens the way to the possibility that an order may be made. The making of the order requires a much more careful consideration of the case with regard in particular to the matters specified in section 1(3) of the Act, subject always to the paramount consideration of the child's welfare, as specified in section 1(1). So it is reasonable to allow a degree of latitude in the scope of the jurisdictional provision, leaving the critical question of whether the circumstances require the making of an order to a detailed assessment of the welfare of the child. The definition of the occasions on which the court may entertain an application for a care order or a supervision order may usefully be wider than the definition of the circumstances in which the court will take the actual step of handing over the upbringing of the child to a local authority or requiring some supervision of the child's continued care. Even if the court has jurisdiction to make an order it by no means follows that an order will be made.

    I would make two further observations. The first is, and the matter cannot be too often repeated, that the intervention by the state into matters of family life may often call for immense caution and restraint. The policy of the Act is to secure the welfare of children. But that policy recognises that that object will very often be best served by retaining the child in the custody of his or her parents and that very considerable harm may be done by an intervention, however well intentioned. The court may be able to provide an eventual safeguard against inappropriate steps taken in the belief of necessity, but even the making of an application is a step not lightly to be embarked upon. The stress which care proceedings may well impose on the parents may even itself be damaging to the child. If the parents are themselves in fact innocent of any harm to the child the proceedings may simply be defeating the basic purpose and the policy of the Act. The initiating of proceedings may in some cases be readily and immediately a matter of obvious necessity. But in other cases it may be something not to be embarked upon without careful deliberation and a professional objectivity. The granting of a care order will only be done by the court after consideration of the matters detailed in section 1 and in particular the requirement in section 1(5) that the order is only to be made if the making of it would be better for the child than the making of no order at all. The need for caution and restraint is underlined by the provisions of article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969).

    Secondly, while there is a necessity to resolve questions of law in the construction of statutory powers, a matter which involves adversarial debate, the operation of the Act should ideally be matter of co-operation between all those bearing responsibility for the welfare of the child, working together to secure that the child's interests are best served. To that end it is obviously desirable so far as possible to minimise formality and to avoid delay in the procedures which require to be followed. Indeed section 32 of the Act expressly recognises that latter necessity. The part played by the court, where it is necessary to have recourse to court proceedings, is vital in securing an impartial and objective resolution of the problem. But even there a degree of flexibility in the management of each case may be appropriate. While the present case has concerned the resolution of what is logically a preliminary point of jurisdiction, a point which in some cases may determine the outcome, it is not to be concluded that this should necessarily constitute a separable episode in the management of a case. But how each case is to be handled, within the scope of the prescribed procedural rules, must be a matter for the judge to whom it has been entrusted.


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