LCC v AB
& Ors [2018] EWHC 1960 (Fam)”, and that the Court should apply that case accordingly;c.Thirdly, they submit that if the Court were to make a finding that threshold was crossed, that would in some way infer blame being placed upon the mother for putting her child at the risk of future harm. Further, that that would not be appropriate in particular in circumstances where the mother is a protected party;d.I will return to that in due course. 15.Ms Hancock (acting on behalf of the Official Solicitor for the mother) supported the submissions made by the Local Authority on all points. However, she emphasised the last two of those and cautioned against a decision of the Court which might involve the crossing of threshold and intervention of the state whenever a party has a significant illness which rendered them incapable of caring for a child. She submitted on behalf of the Official Solicitor that that would be a dangerous route for the Court to go down, and that that is not what the threshold criteria are for. 16.As I have already noted, the Court should be very cautious in disagreeing with a position agreed by all parties. However, I also recognise that I have a duty to K and to her welfare, and if the Court considers that the arguments raised are not correct, it should not flinch from saying so. In my judgment, they are not correct and I turn to them now. The argument in relation to Re J. 17.I do not accept that the effect of Re J is that a Court cannot find that there is a future risk of harm if there is no history of past risk or parenting failure. As has been agreed by the parties in submissions, Re J was a case on particular facts and was sent to the Supreme Court to resolve a particular issue. That was a case in which the Local Authority did in fact seek to rely upon past risk to establish future risk, and the concern of the Supreme Court was to identify how and to what standard past events must be proven in order to establish a prediction of harm for the future. 18.However, what the Supreme Court did not say was that where past events are not relied upon (as is the case here), then there cannot be a risk for the future. Certainly, the Supreme Court did not rule out threshold being crossed where the risk for the future to a child is obvious, but based on recent events - as, in my judgment, it is in the present case. 19.In my judgment, that much is also clear from the decision of Baroness Hale in Re B (Childcare proceedings: threshold criteria) [2013] UKSC 33. While I note that she was dissenting in that case, she was not dissenting on this point. At paragraph 193, she stated as follows:“I agree entirely that it is the statute and the statute alone that the courts have to apply, and that judicial explanation or expansion is at best an imperfect guide. I agree also that parents, children and families are so infinitely various that the law must be flexible enough to cater for frailties as yet unimagined even by the most experienced family judge. Nevertheless, where the threshold is in dispute, courts might find it helpful to bear the following in mind: 1)The court’s task is not to improve on nature or even to secure that every child has a happy and fulfilled life, but to be satisfied that the statutory threshold has been crossed.2)When deciding whether the threshold is crossed the court should identify, as precisely as possible, the nature of the harm which the child is suffering or is likely to suffer. This is particularly important where the child has not yet suffered any, or any significant, harm and where the harm which is feared is the impairment of intellectual, emotional, social or behavioural development. 3)Significant harm is harm which is ‘considerable, noteworthy or important’. The court should identify why and in what respects the harm is significant. Again, this may be particularly important where the harm in question is the impairment of intellectual, emotional, social or behavioural development which has not yet happened.4)The harm has to be attributable to a lack, or likely lack, of reasonable parental care, not simply to the characters and personalities of both the child and her parents. So once again, the court should identify the respects in which parental care is falling, or is likely to fall, short of what it would be reasonable to expect.5)Finally, where harm has not yet been suffered, the court must consider the degree of likelihood that it will be suffered in the future. This will entail considering the degree of likelihood that the parents’ future behaviour will amount to a lack of reasonable parental care. It will also entail considering the relationship between the significance of the harmed feared and the likelihood that it will occur. Simply to state that there is a ‘risk’ is not enough. The court has to be satisfied, by relevant and sufficient evidence, that the harm is likely: see In re J.”In my judgment, while Re J itself was concentrating on the level of past harm to establish future harm, Baroness Hale was not intending to rule out a court finding future harm when there was not past harm. 20.I did raise with counsel during the course of the submissions whether the position would be different if the mother’s haemorrhage had not rendered her as incapable as it has, but instead had led to significant behavioural difficulties which might have made her (or would have made her) a risk to a child. That of course is a different position, but it illustrates, in my judgment, that there may be a number of ways in which parents may not be able to exercise care which it is “reasonable for a parent to give” in the future (or ways which would present a risk of significant harm to a child), even if they had not failed to do so in the past. 21.In my judgment, in the present context, the only relevance of Re J is that the Court must have sufficient evidence on which to base a finding of future risk. In the present case, in which it is quite clear from the evidence that the mother is not able to provide any care, never mind adequate care, it is in my judgment self-evident. I will return to this issue when dealing with the “blame” point and the Article 8 point.LCC v AB22.The parties have placed reliance upon the case of LCC v AB. That case is binding upon this court. It is also quite clearly correct. However, in my judgment that case was very different from the present case.23.In that case, the mother was told that she had a terminal illness. When she learned of that (and of the fact that she was not going to be able to care properly for her children), she made a number of appropriate and correct decisions. It is quite clear, as Mr Justice Keehan set out, that she exercised her parental responsibility in the best possible way. In those circumstances, it is not at all surprising that he reached the view that the fact the mother was terminally ill did not deprive her of the right as a parent to make decisions about the children’s welfare, where they should live, and to make decisions about with whom they live in the future. Nor is it surprising that he reached the conclusion that the state, in the person of the Local Authority, should not be entitled to interfere with the mother’s or the children’s right to respect for family life. In short, while the mother was not able to provide physical care, she was able to make proper decisions and appropriate decisions, and exercise her parental responsibility for the children, as do many parents with disabilities up and down the land.24.In my judgment, that is a very different situation to the present case, where there is no question of the mother exercising her parental responsibility. She is not able to make decisions, and no one suggests that she is able to do so. That is not her fault, but in my judgment the position is wholly different to that in the case of LCC v AB. 25.Of course, the issue of the mother’s lack of fault leads on to the other two points: firstly, as to the “blameworthiness” issue; and, secondly, as to the right to family life and the caution which the Court should exercise in allowing Local Authorities to intervene in this type of case. I now turn to those issues.