Intervention by the state
29.In my judgment, neither does the making of a finding that threshold is crossed imply that it will be “too easy” for the state to intervene, or that this would somehow risk “opening the floodgates”, and render vulnerable to state intervention any parent who becomes incapacious. 30.As the parties know from my discussions in Court, this was an issue which had caused me some concern. I recognise that the courts in a number of cases, albeit in different contexts, have emphasised that there should be a high bar for state intervention. That caution goes right back to cases such as Birmingham City Council v D and M [1994] 2 FLR 502, a decision of Mr Justice Thorpe, as he then was. 31.Nevertheless, I also have to take into account that the fact that threshold might be crossed for the purposes of orders being made does not provide a justification in every case that the Local Authority should or will intervene, or that the Court should or will intervene. I have already noted that there may well be situations where a parent is disabled and unable to provide day to day care for a child, but is able to exercise parental responsibility and make decisions, and that in those cases, threshold will often not be crossed, such as in LCC v AB. There will also be cases where the other family members are able to step in, and where it would be clearly inappropriate for the Local Authority to take public law steps. There are also likely to be cases where other provision can be made which will look after the child’s safety (for instance, pursuant to the duties of a local authority under section 20) which would obviate the need for an application to the court. 32.However, in a situation where the parent cannot provide any safe care for a child, where the parent cannot exercise any parental responsibility on a practical level, where no alternative family carers are available, and where parties are agreed that a child requires accommodating because of the parent’s inability to provide care, then in my judgment it is wholly proper for section 31 of the Children Act to be brought into play. Indeed, in my judgment that is precisely what it is there for: to protect children who are at risk of significant harm due to the inability of a parent – whether (in some cases) due to their fault, or (in other cases) due to no fault of their own. 33.It is right that the Article 8 rights to family life are affected in every case of this type (even where a mother is not capable of looking after a child), and that is a matter which must be given appropriate weight and factored into the decision making of a Local Authority and of the Court. However, in my judgment, that does not lead to the conclusion that threshold is not crossed.34.In my judgment the appropriate way to approach the issue is to remind oneself again of the comments of Baroness Hale in the case of Re B. The Court must identify as precisely as possible the nature of harm which the child is likely to suffer, and the Court must identify the likelihood that the parents’ future behaviour will amount to a lack of reasonable parental care. Of course, that mirrors the judgment of Lord Wilson, which I set out a moment ago, which advises the Court to concentrate on the wording of the Act. That is precisely what the Court must do.