The issue before the Court
3.All of the parties agree that K should continue to live in foster care. All of the parties agree that in this case a section 20 placement would not be appropriate or support her adequately, and that the Local Authority needs to be involved and able to provide her with help, support, and advice. Moreover, all of the parties are agreed that if it were possible, the best order for K would be by way of a care order, and that that would meet her welfare interests (which, of course, is the paramount factor which the Court must take into account). 4.However, earlier in proceedings, the parties raised an issue as to whether the Court can find that threshold is met in this case. I am told that the matter was raised before HHJ Bedford, who identified the issue of whether the threshold might be met in relation to the risk of future harm, and who listed the matter for a hearing before himself. Unfortunately, he has not been able to sit today. The matter has been listed before myself for an issues resolution hearing/early final hearing, but also to deal with this crucial issue of threshold.5.The position of the parties taken today was as it was at previous hearings; that is, that they do not consider that threshold is met on the facts before the Court. In accordance with that position, the Local Authority has advanced an alternative case; that is, that the Court should make K a Ward of Court, and there was a formal application from the Local Authority to that effect. Nevertheless, the position of all of the advocates was that if the Court does not agree with their interpretation of the law as applied to the facts in this case, then that would not be something with which they would take significant issue; indeed they (and particularly the children’s guardian) would welcome the orders which the Court could then make.The Official Solicitor has raised a wider concern about whether threshold should be met in any case in which a parent becomes particularly incapacitated, and that is a matter to which I will return in due course. 6.I know that all of the advocates have given considerable and long thought to the arguments put before the Court. I have three highly experienced counsel before me, who all agree on the approach which the Court should take. In those circumstances, it is with some caution that I have reached the conclusion that their interpretation of the legal position in this case is not correct, and I have concluded that threshold is indeed met in this case. That is despite the skilful submissions made by all of the advocates - in particular by Ms Troy, on behalf of the Local Authority, who took the lead. 7.I will deal very briefly with the circumstances of the case. They are tragic. K’s father died when she was two. Throughout the whole of her life, she was cared for by her mother. There is nothing in the documentation to suggest that the mother’s parenting was poor, or that K suffered from harm in the mother’s care. Further, no party suggests that there was anything in the history which would or could cross the threshold for making public law orders. 8.However, sadly, in November 2021, the mother suffered a sudden and catastrophic brain haemorrhage. She has been left with minimal abilities; she requires 24/7 care; she has very limited cognition and understanding; and she lacks capacity to litigate or make any decisions about her own welfare. It is agreed that she lacks capacity and is not able to make any decisions about her child’s welfare, and cannot exercise any parental responsibility for her on a practical basis. In those circumstances, all decision-making is made by others and she has no input into it. Further, it is agreed that she does not have capacity to provide agreement under section 20 for K to stay in Local Authority accommodation. 9.In the early stages after the catastrophic events of November 2021, the wider family stepped into the breach and helped K. She was looked after by them for a number of months. However, they were not able to continue to care for her, and gave notice to the Local Authority of this. It was that which triggered the issue of proceedings in the case. 10.The threshold in the case is contained within the C110A application at B4 in the bundle. It is set out in the position statement filed by Ms Hancock on behalf of the mother. It is an interim threshold. I understand why it has remained an interim threshold, given the position of all the parties, but it is clearly not appropriate for final orders. Ms Troy, on behalf of the Local Authority, agreed with me today that it could be reduced to a single short paragraph - that is, that the mother suffered a sudden and catastrophic brain haemorrhage on 17 November 2021, that she is not able to provide any care at all for her daughter, that she is not able to make any decisions on her behalf or exercise her parental responsibility for her. Also, that there are no other persons available who would provide that care.I have been referred to a number of cases and a number of different scenarios, and while there have been some discussions as to the relevant date for threshold, I agree with the parties that this is 18 February 2022.11.The essential question which the Court has to answer can be put relatively shortly. That is, whether in circumstances where the mother has suddenly lost her capacity to care and is not able to provide any care for her child or make any decisions for her, is that sufficient to satisfy either of the limbs of section 31(2) of the Children Act 1989.12.Section 31 of the Children Act provides as follows:“(1)On the application of any local authority or authorised person, the Court may make an order-a)placing the child with respect to whom the application is made in the care of a designated local authority; orb)putting him under the supervision of a designated local authority.(2)A court may only make a care order or supervision order if it is satisfied-a)that the child concerned is suffering, or is likely to suffer, significant harm; andb)that the harm, or likelihood of harm, is attributable to-(i)the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or(ii)the child’s being beyond parental control”…..Al parties agree that the requirement in subsection (2)(a) applies to both limbs under subsection (2)(b). All parties agree that there are different considerations which apply to each of the limbs (that is (2)(b)(i) and (ii)), and I have heard submissions separately on those issues. Most of the discussion before the Court has been in relation to the first limb, and I will turn to that matter now.