FD25C40107 - [2025] EWHC 1264 (Fam)

In Re T Lady Black identified that, in order to bring a case under the inherent jurisdiction, the court had to give the Local Authority leave under s100 of the Children Act 1989. S 100(4) provides:

“The court may only grant leave if it is satisfied that -

(a)

the result which the authority wish to achieve could not be achieved through the making of any order of a kind to which subsection (5) applies; and

(b)

there is reasonable cause to believe that if the court’s inherent jurisdiction is not exercised with respect to the child he is likely to suffer significant harm”

The order of 13 February 2025 granted leave under s100 until 13 May 2025 but did not explain the factual basis on which permission was being given. As this was a renewed application for permission under s110, the Local Authority was required to advance a case to explain why it invited the court to reach the conclusion that, if a DOLS order was not made, LB was likely to suffer significant harm. In practice that meant that it needed to show why, in the opinion of the social workers, they had reached the conclusion that LB was likely (namely that this was more likely to happen than not) to suffer significant harm if she was able to leave the placement and return to live with her mother. I accept that the social workers have set out their concerns in general terms about the matters to which she would be exposed if she were to return to live with her mother, particularly if her father is physically present in the house (despite being required not to be as a result of non-molestation order).

However, there is no evidence (as far as I can see) that LB suffered any significant level of harm when she went back to living with her mother in late 2024 and early 2025. She is now nearly 16 years old and is rapidly moving towards being an adult and thus her situation is wholly different to that of a much younger and more vulnerable child. It is clear that the social workers have concluded that it would be better for LB to live in a placement where she can develop her life skills and that this part of her education would be unlikely to be delivered at her mother’s home. However, at present, as far as I can determine, the evidence does not explain whether the social workers have asked themselves the questions about how likely it is that LB will be exposed to harm at her mother’s house, what the nature of that harm would be and whether it can be said that it is likely that would suffer substantial harm if she was not prevented from returning to live with her mother.

Lady Black made it clear at paragraph 109 of Re T that the inherent jurisdiction cannot be invoked unless this condition is met. It therefore seems to me that the court ought not to make a DOLS order unless this issue has been specifically addressed in the evidence. I consider that evidence has to provided which allows the court to confidently conclude that the child is “likely to suffer significant harm” on the facts of a case. It is not sufficient for the court to be provided with general concerns about the parents or even the risks to which the child would be exposed if she were to return home because the court needs to be satisfied, bearing in mind the test in s31(10) of the Children Act 1989, if any harm is likely to be significant.

I do not consider that, in the absence of any evidence focusing on this issue, I can reach a decision as to whether to give leave under s100 of the Children Act 1989 at this hearing. However, I have not dismissed this application but have adjourned it so as to enable the social workers to focus on the statutory test and to provide their assessments to the court before the next hearing.