My Lords, I had the responsibility of producing Clause 31 as it was, now Section 31, of the 1989 Act. It is extremely important and, as the noble and learned Lord, Lord Lloyd, has said, it has stood the test of time. It is important because it marks a threshold. That does not
mean that it is an introduction or a preliminary, it means that it determines whether or not the court has the power to remove a child from the natural situation in which he or she is living. It is vital, on the one hand, where there is harm to the child, that the public authority, in this case the local authority, should be able to step in. However, it is equally important that the local authority should not be able to step in where the facts required for the threshold have not been demonstrated. It is that sort of position that the threshold occupies. It is not a question of having to do this in order to go on to welfare. It is that if the threshold is not satisfied, the court cannot remove the child from its natural parents.
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I agree with the noble and learned Baroness, Lady Butler-Sloss, that this was a very considered decision of the Supreme Court of the United Kingdom, containing at least two very experienced family lawyers. It is not the first case to determine this matter but is possibly the first in which it has been distilled to the only point in the case. The case was brought in order to settle the law on whether the mere fact—nothing more—that a parent was in a situation where a child was damaged or injured is of itself sufficient to create a risk that will satisfy the threshold test.
I am not going to go into all the detail because Members of the Committee may read the Supreme Court judgments for themselves if they wish to do so; they are clear, precise and compelling. The point that I want to make is as follows. Let us assume that there are parents who have produced harm to their child. That could be one or both of them. If actual harm is shown to have been done to the child, it does not matter which of the parents was responsible; the child can be removed.
Now, supposing that these two people—married, we will assume—with their child harmed, split up. The mother goes away for some time, and eventually sets up a relationship with another person who has no history whatever of harming any child. He has two children of his own and there is no suggestion whatever that he has harmed them. What is the source of risk to the children who are cared for by that new union? The only possible source of risk is that the mother was a party to the injury to the first child. That is exactly what the court has not been able to take as the fact. The fact is that the only thing that was known is that this mother was a member of a group in which a child was injured. It does not follow that she had any part in it whatever.
That was the only fact that the Supreme Court was allowed to take into account. The case was deliberately put together so that this point of law could be dealt with by the Supreme Court. I think that it was in the judgment of the noble and learned Baroness, Lady Hale—noble Lords can read that for themselves if they wish—that the case was unique in the sense of being packaged in this way. In nearly every other case, it would be possible to adduce further evidence from which the court might be able to assume that it was one or the other, either the mother or the father, who had been the perpetrator. However, the unfairness of
this idea is that if the mother had nothing whatever to do with harming the child, she should be marked as someone who creates a serious risk and that any child for which she had responsibility thereafter is to be at serious risk and liable to be taken away from whatever union she has joined. When we look at it that way, as I assume we should, it is quite unfair to make that kind of inference from this sole fact. There may be many other facts in ordinary cases, and there usually are. At the stage at which this case was put, though, there was just the one fact, and that was the legal decision that seven judges reached.