My Lords, I imagine that most of your Lordships have some experience of the procedure for taking children into care, probably more experience than I have. For those who have no such experience, perhaps I should say a few words of explanation.
We are concerned with the interaction of two sections of the Children Act 1989, Section 1 and Section 31. Section 31 provides that a child may be taken into care only if it,
“is suffering, or is likely to suffer, significant harm”.
“Likely to suffer”, in that context, does not mean more probable than not. It means only that there is a real possibility that it will suffer significant harm, a possibility, as it was put by one learned judge, that cannot sensibly be ignored.
Section 31 is usually referred to as the threshold provision. Section 1 sets out the welfare principle, and it is at the welfare stage that the court decides, after a full hearing on all the facts, what is in the best interests of the child in question. The fact that the threshold stage is satisfied in any particular case does not mean that a child will necessarily be taken into care. Conversely, if the threshold test is not satisfied, the court has no power to make an order under Section 1 and the child will remain at risk, if there is a risk.
Those are the relevant provisions. How then have they worked in practice? Where a child has been seriously injured while in the care of its parents, it may be taken into care without the court having to decide whether it was the father or the mother who inflicted the injury—let us call that child, child A. The difficulty arises when the father and the mother split up. Let us suppose that the father goes to live with another woman who already has a child—let us call it child B —about the same age as child A. If the local authority has proved on a balance of probabilities that it was the father who injured child A, child B may be taken into care, depending on what is in the best interests of that child. The threshold in that case will have been passed. However, it often happens that the father and the mother each blame the other for the injury to child A and, as a result, the court cannot decide at the threshold stage where the truth lies. One very experienced judge, Mr Justice Wall, later to become President of the Family Division, described this as a commonplace occurrence. In a very recent case, Re J, the Supreme Court has decided that if at the threshold stage it cannot be decided whether it was the father or the mother who injured child A, child B will remain at risk in those circumstances.
The noble and learned Baroness, Lady Hale, who gave the leading judgment in that case, went on to say that such cases are of “vanishing rarity”. I am not sure why she should have made that point. She cannot surely have been saying that because such cases are so rare it does not matter if an occasional child is left at risk. But, whatever the reason, it is on this point that I would respectfully disagree with her and for a number of reasons.
In the first place, if cases in which the court cannot reach a decision at the threshold stage are as rare as all that, why have they caused so much concern? That they have caused concern is not, I think, in doubt.
That concern first came to the surface as a result of an earlier observation made by the noble and learned Baroness, Lady Hale, in a case called S-B, a case on very similar facts in which she held that the threshold had not been crossed. Once again, the noble and learned Baroness described that case as being one of “vanishing rarity”. Again, if that be so, why did the local authority in the more recent case, Re J, go to the length of constructing an artificial case, which it did, in order to challenge the decision in S-B? Why did it take that case all the way to the Supreme Court to test that very point? It simply does not make sense. The answer must surely be because cases such as S-B and Re J are not as rare as the noble and learned Baroness, Lady Hale, had in mind and because the decisions in S-B and Re J have caused real concern among local authority social workers.
Secondly, I turn to the Government’s approach. On 25 November the three of us—one of whom cannot be here today—had a useful meeting with the Bill team, for which we are very grateful. In a letter dated 29 November it was said that the Government could find no evidence that social workers were in any way concerned about the present state of the law. That letter was followed up by a letter of 4 December, in which the Government quoted the views of the Association of Directors of Children’s Services that it does not recognise Re J as having caused concern among social workers and it is unaware of any problem in this field.
4.30 pm
The Government’s case in response to the amendment —so far as I know, it is the only response—is that there is nothing here to worry about. That approach is impossible to reconcile with the evidence of John Hayes QC, leading counsel specialising in the field of child protection. I have a copy of the opinion dated 12 December in case anybody would like to see it. He describes the views expressed in the letters written on behalf of the Government as very surprising. In his experience and that of his colleagues working in the field, the two decisions to which I referred have indeed caused considerable concern to local authority social workers. He quotes chapter and verse, which I shall not do this afternoon.
Thirdly, I must refer to the judgment of Lord Justice McFarlane in the Court of Appeal in Re J. As the House will know, he is a very experienced judge in the Family Division. He gave the leading judgment in the Court of Appeal in Re J, with which the noble and learned Lords, Lord Judge and Lord Neuberger, both agreed. The judgment is 30 pages long, so I will not read it to your Lordships—but I have read it myself, and I have reread it many times, with increasing admiration. There is no doubt that, unlike the Association of Directors of Children’s Services, Lord Justice McFarlane does see a real problem here. There is no doubt that he would have allowed the appeal of the local authority in Re J if he had not been constrained, as he was, by the decision of the Supreme Court in S-B, the case to which I have already referred.
Lastly, on the evidence, I have made such inquiries as I can of the judges who decide such cases at the threshold stage. How often does it happen in practice that, on the evidence available at that stage, it cannot
be decided whether it was the father or the mother who inflicted the injury? The answer I get is that it is by no means uncommon. It is certainly not vanishingly rare. I accept, of course—indeed, I am greatly reassured—that in most cases the judge will be able to decide, by taking other factors into account, whether it was the father or the mother. But there will undoubtedly be some cases in which the judge simply cannot decide at the threshold stage. It is the purpose of this amendment to cater for those cases and it does so by enabling the case to proceed as smoothly as possible to a full hearing on the facts at the welfare stage.
I must now refer, as briefly as I can, to some of the points made in Grand Committee. In replying to the debate the noble Lord, Lord McNally, was concerned that the amendment would enable the local authority to make a case on the ground that the father might have inflicted the injury—in other words, on the ground, as he put it, of unsubstantiated suspicion. I cannot stress strongly enough that that is not the object of this amendment, and nor would that be its effect. The amendment would apply only where the father was one of two people who did inflict the injury, which is a very different thing.
The noble and learned Lord, Lord Mackay, made the point that Section 31 has stood the test of time, and I agree. But why has it stood the test of time? The answer is because, until very recently, courts up and down the country have followed the guidance given by Mr Justice Wall, as he then was, in 1998, before he became President of the Family Division, in a case called CB. That guidance was approved by the noble and learned Lord, Lord Nicholls, in the House of Lords in a case called Re O that was decided in 2004. That guidance worked very well until very recently when the noble and learned Baroness, Lady Hale, threw doubt upon it in Re S-B and until in Re J the Supreme Court went further and disapproved that guidance. The purpose of this amendment is to restore the position as it was before Re J. It is therefore in no sense a leap in the dark. If John Hayes, the learned Queen’s Counsel, is right in paragraph 19 of his opinion social workers will breathe a sigh of relief if this amendment is accepted and will know definitely where they are.
Finally, and with apologies, I must refer to the speech of my noble and learned friend Lady Butler-Sloss. She made much of the point in Re J that it was a decision of seven judges, two of whom have great experience in this field, and that they were all, as she put it, absolutely unanimous. I agree of course that they all reached the same result. However, the point would perhaps have somewhat more force if they had all given the same reasons. They did not. One of the judges, Lord Wilson, who has great experience in this field, disagreed with the others, and three of the judges, led by Lord Reed, expressed their concern that the law in this field had become so complicated but said that it was now too late for the Supreme Court to do anything about it. It cannot, I think, be said that the trumpet in Re J has given a very certain sound. Be that as it may, what is certain is that there is a real problem here which needs to be solved, and solved urgently. The purpose of this amendment is to do just that. I beg to move.