UOL Family Law 2019 Zone A Question 7

Olivia and Trevor are unmarried and have two children, Simon, aged 3, and Iris, aged 5.
Olivia also has a daughter from a previous relationship, Emily, who is 11 years old.
Olivia is now pregnant with a fourth child.
Emily’s schoolteacher has recently contacted the local authority because Emily appears
to be behaving in a way that is disruptive in class and she is often subject to periods of
short-term exclusion from school. Emily also appears to be self-harming and when
challenged she has said that she is very clumsy.
Yesterday, Olivia took Simon and Iris with her when she went to see her midwife and
the midwife noticed that both children had extensive bruising on their arms and legs.
They also looked malnourished. When asked about these bruises Olivia said the
children were “accident prone”. The midwife suspects these injuries are non-accidental
and has contacted the local authority to raise her concerns.
Last night, a neighbor contacted the police because he thought Trevor was dealing
drugs in his back garden. When questioned, Trevor said he had simply been giving a
friend some money back that he owed him.
The local authority now wishes to undertake a full assessment of the children. They are
also concerned about the welfare of Olivia’s unborn child.
The family has come to the local authority’s attention before, but no action has ever
been taken regarding the children because Olivia always convinced the social workers
that she was able to care for her children. Trevor has historic convictions for low-level
theft and drug abuse. Both parents work full-time and the children are often looked after
by Janice, a local childminder.
Advise the local authority.

Suggested Answer
Albeit Olivia and Trevor have parental responsibility over their children, the local
authority will be advised that they still have obligations over the children and their
powers can be exercised accordingly. These powers are procured by the local authority
from the Children Act 1989 (CA).
Assessment Order
In considering the appropriate order, the local authority can initiate an assessment order
which can be applied under s43(1)(a) CA if there is reasonable cause to suspect that a
child is suffering or likely to suffer significant harm. It is apparent that the children in
question are all suffering harm as the midwife has noted extensive bruises on the hands
and legs of Simon and Iris. These bruises are sufficient for the local authority to
conclude that the children are suffering significant harm and there is a need to carry out
the assessment order.
Additionally, under s43(1)(b) CA provides that an assessment order is needed to
establish if a child is suffering from significant harm. Furthermore, the order may not be
necessary if there is sufficient information about the status of the children that was
obtained from the school teacher, midwife, neighbor or even from the local authority
social worker themselves. Deciphering from the facts, the protection of children appears
to be utmost priority as opposed to assessing them.
Emily’s behavior seems to be disruptive which as a consequence faces disciplinary
actions and thus, she appears to be self-harming. Additionally, Simon and Iris look
malnourished and have extensive bruises on their limbs and there has also been calls
by concern neighbors that Trevor deals with drugs in his backyard which further casts a
doubt as he has previous convictions for low-level theft and drug use.
The guidelines in using s43 CA is that the assessment must be brief, yet focused on the
health and development of the child that provides a range of information in identifying
the harm notwithstanding in describing the nature and extent of the harm. The
compilation of such information is pivotal as it enables the local authority to carry out
appropriate protection towards the child. It must be noted that an assessment order is
not to be equated as an emergency order. Assessment orders are more appropriate
where the harm does not appear to be sudden but rather cumulative.
Emergency Order
Conversely, an emergency protection order can be applied under s44(1)(b) CA.
Because the local authority is applying, hence, it is mandatory they conduct an
investigation per s47 CA. On the facts, it is evident that no action has been taken
despite the local authority being alerted about the family. S47(1) confers the local
authority an obligation to carry out the investigation where they have reasonable
grounds to suspect a child is suffering or likely to suffer from harm.
However, the local authority may refute claiming that they could not conduct an
investigation because child access was refused by the parents unreasonably. Even if
the investigation is carried out, it will lead to a dead-end as Olivia will convince them
that she is capable of looking after the children. The local authority must believe that
child access is required as a matter of priority. As such, the current conditions of the
children are sufficient for the local authority to act as a matter of priority.
Having established the matters of priorities, the local authority must then satisfy the
requirements under s44(1)(a)(i) CA that they have reasonable cause to believe that the
children will likely suffer harm if they are not removed, also noted the current state of the
children’s health and is further questionable whether the baby that is yet to be born will
be subjected to similar conditions as the present children are in notwithstanding that the
parents may potentially inflict harm upon them if they are to continue being with the
parents.
Therefore, pursuant to s44(1)(b)(i), they have the authority to remove the children from
Olivia and Trevor and under s44(1)(c) CA, the local authority can apply to the court for
parental responsibility over the children. Furthermore, s45(1) CA provides that
emergency orders can last for 8 days ie. short-term protection nonetheless it can be
extended for another 7 days maximum per s45(5) CA thus summing up to be 15 days in
total the emergency order may be imposed.
Munby J in X Council v B asserted the courts are reluctant to grant this order because it
appears to be a draconian and extremely harsh which should only be ordered under
exceptional cases. Furthermore, the reliability of evidence by the local authority must be
precisely detailed notwithstanding that judge must weigh in Articles 6 and 8 ECHR
respectively as it certainly infringes rights to family by removing the children and a right
to a fair trial. It is safe to decipher that such orders are obliged by the courts when there
is apparent threat or danger towards the children as opposed to assessment orders.
This decision was affirmed by McFarlane J in Re X (Emergency Protection Order).
Care Order or Supervision Order
Oxfordshire CC v L (Care or Supervision Order) held that a care order is said to be
better if the local authority intents to remove the child. Hale J in Re O (Care or
Supervision Order) commented that if parental co-operation cannot be obtained as it is
in this case, then a care order is more suitable. Additionally, it is noted in Re T (A Child)
(Care Order) that should the local authority want to obtain parental responsibility then a
care order is appropriate.
In order to obtain a care order under s31(1)(a) CA; they are required to meet a
threshold criterion provided under s31(2)(a) CA. The court will only grant a care order if
it is satisfied that the children are suffering or likely to suffer significant harm. Harm is
defined by s31(9) as any ill-treatment or impairment of health or development of a child.
Albeit “significant” is not defined in the statute, nonetheless, Booth J in Humberside CC
v B interpreted it to mean hard that is considerable, noteworthy or important. All the
children presently appear to be malnourished, extensive bruises, self-harming and
disruptive which clearly satisfies the requirements of s31(2)(a) CA.
Additionally, in Re MA (Care Threshold); it was noted that harm must be significant
enough to justify the local authority’s intervention in family life of parents provided by
Article 8 ECHR. Emily, Simon and Iris’s health and development will be compared to a
similar child to determine if they are suffering significant harm (S31(10)). In determining
whether the children are suffering significant harm, Lord MacKay in Re M (A Minor) held
that the children must be shown to have been suffering significant harm from the time
the local authority initiated the first step to protect them and not during the time of
proceedings.
As for the unborn baby, there must be a real possibility which cannot be sensibly
ignored (Re H (Minors)). It can be inferred that there is a possibility by considering the
present condition of the children, the unborn baby is highly likely to suffer the same fate
as the tendency for the unborn baby to be malnourished, bruised appears to be
sufficiently clear that if Olivia and Trevor cannot look after the three children, how would
they be able to care for their fourth (Re H (Minors) (Sexual Abuse: Standard of Proof))
which can successfully be proved by the local authorities on a balance of probabilities.
As for the requirement under s31(2)(b); the harm or the likelihood of the harm must be
attributable to the care given or the care likely to be given that a reasonable parent
would be expected to provide. The present case can be distinguished to that in Islington
Borough Council v Al-Alas where it is suggested that the harm inflicted on the children is
non-accidental and so may be caused by neglect. Nonetheless, the facts do not tell us
who is the abuser.
Therefore, in deciding cases where the abuser is not known, Re B (Children:Uncertain
Perpetrator) held that the correct approach was to use the guidelines provided in
Lancashire CC v B. The question is whether was there possibility to have one or more
people with access to the children to have caused the harm. It can therefore be
deciphered that it is clear that either Olivia, Trevor or Janice would have caused the
harm and the criterion can still be met (Redbridge LB v B,C & A). If the courts cannot
determine who the perpetrator was/is, the findings will be that all three named in the list
are possible perpetrators (Re S-B). Therefore it will be submitted that the threshold
criterion is satisfied.
In considering the welfare of the children (Re O and N) per s1(1); s1(3) CA provides a
checklist for the court to determine the welfare. It is clear that the children are suffering
from harm (s1(3)(e)) and in considering the effect of the children’s circumstances(s1(3)
(c)), it is highlighted in Re B (A Child) that they should not be moved unless there are
justifiable reasons. On the facts, it appears that they have never been moved and there
are valid grounds that the moving the children will be justified considering the
circumstances they are in.
However, the court will only grant the order if it is satisfied that in doing so it will be for
the betterment of the children (s1(5)). If the court is to grant the order, there should be
no delay (s1(2) CA).
Alternative Situation
On the facts, Olivia and Trevor both agree for their children to be looked after by the
local authority until after she gave birth they were challenged by the local authority.
The accommodation of the children was done with after the agreement with Olivia and
Trevor. Furtherance, Part III CA enshrines the concept of co-operation between parents
and local authorities which is not provided for in the facts.
According to s20(7) CA, Olivia and Trevor having parental responsibility can object to
the accommodation if they can provide alternatives to the children. Furthermore,
because of their parental responsibility, they can demand for the removal of their
children from the accommodation which is permitted under s20(8) CA and should the
local authority refuse to comply to their demands, they are advised to obtained an
immediate emergency protection order or risk being sued under the HRA.