Public Law
December 2022

17 February 2023
The judgement of HHJ Thorp considering whether a parent losing capacity to care for a child is sufficient to satisfy the threshold requirement under section 31(2) of the Children Act 1989.
West Sussex County Council v K [2022] EWFC 170


The court determined that threshold was crossed in relation to a child, K, after her mother and only carer suffered a brain haemorrhage and was no longer able to care for K.


K’s father passed away when she was two years old. K was cared for by her mother; there was nothing to suggest that the mother’s parenting was poor or that K had suffered harm in the mother’s care. No party has suggested that there was anything in K’s history that would or could cross the threshold for the making of public law orders.

In November 2021 K’s mother suffered a brain haemorrhage which left her with minimal abilities and required 24/7 care. It was agreed that the mother lacks the capacity to make any decisions about K’s welfare and could not exercise PR on a practical basis; the mother also did not have capacity to consent to K being accommodated by the local authority under section 20.

All parties agreed that it was in K’s best interests for a care order to be made with K residing in local authority foster and that a placement under section 20 would not be appropriate or provide adequate support in the long-term. The issue which the court was required to deal with was whether threshold is met for the making of public law orders and whether a parent who suddenly loses capacity to care for a child or make decisions for the child satisfies the threshold requirements.


HHJ Thorp determined that threshold was crossed in this case.

No party suggested that threshold could be crossed, given previous authorities (such as Re J (Children) [2013] UKSC 9) had suggested that a finding of significant harm in the future could not be established unless a deficit in the parenting of the parent could be evidenced by a past parenting failure. The parties also suggested that if the court found threshold to be crossed then this would indicate some blame being placed upon the mother for putting K at risk of future harm or would impugn the mother’s parenting by making an adverse finding against the mother in circumstances arising out of unforeseen illness which would be an infringement upon the article 8 rights of the family.

The court disagreed with the parties, despite an agreed position being presented by the parties, given the court’s duty to K and her welfare. The court distinguished Re J on the basis that in that case the Local Authority sought 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, not whether past risk is required to establish future risk.

The court determined that it was not necessary or appropriate to deal with the matter with reference to blame and that the idea that blame should be read into the threshold criteria is misconceived; HHJ Thorp indicated that the fact that parents are not able to provide safe and adequate care for a variety of reasons, but should not of itself reflect blame on their part. HHJ Thorp also explained that the purpose of section 31 is to recognise that in some cases where children’s needs are not going to be met by a parent, then the state may need to intervene ti ensure that those needs are met.

It was determined that where a parent cannot provide safe care for a child, where a parent cannot exercise PR on a practical level, where no family carers are available and where parties agree that a child requires accommodating due to a parent’s inability to care, then it is wholly proper for section 31 to be brought into play. Section 31 is there to protect children who are at risk of significant harm due to the inability of a parent whether that be due to their fault or due to no fault of their own.

HHJ Thorp determined that threshold is crossed in this matter as without intervention or an order, this is a child who would not have the care from a parent which it would be reasonable to expect a parent to give, and that K would be likely to suffer significant harm in the future if an order were not made; the court then went on to make a care order.

The judgement of Mrs Justice Lieven DBE on whether a nine day fact-finding hearing should be listed to determine whether injuries caused to the child, X, were caused non-accidentally. Helen Knott of Chambers representing the mother.
Derbyshire County Council v AA and Ors [2022] EWHC 3404 (Fam)


Lieven J confirmed that a nine day fact-finding hearing was not necessary and proportionate to determine whether injuries cause to a child were non-accidental, given that it was unlikely that X would be removed from the parents.


The proceedings concern X, a child aged 18 months. X attended hospital in July 2021 for a routine operation for a tongue tie; chest x-rays were carried out as X had been unsettled the previous evening and the scans revealed healing rib fractures to X’s 6th, 7th and 8th ribs on the left side. The view of the paediatrician at the time was that these injuries were likely to be non-accidental.

Care proceedings were issued in August 2021; the matter came before HHJ Williscroft who determined that the test for the making of public law orders was not made and so C was subject to a full supervision plan. Since proceedings commenced X’s care has been supervised by at least one family member, but at no stage was X removed from the care of the parents. Throughout the oversight from the local authority there has been no doubts as to the quality of the care given by the parents or any other concerns about their parenting.

The local authority threshold alleges non-accidental injury caused by one or both of the parents and that the parents have not been honest with professionals about the cause of the injuries. The parents deny ever causing injury to X and raise the possibility of X having been injured at birth or in hospital immediately after birth.

Various experts had been instructed and the general view of the experts is that the injuries are likely to be inflicted non-accidental injuries rather than birth related; a nine day fact-finding hearing was listed in January 2023.


The court noted that there have been no concerns about the parents care since there has been local authority oversight and that X has been thriving developmentally. The court also indicated that the parents had fully co-operated with the local authority throughout proceedings and have raised any request to change the supervision plan with the local authority.

The matter was listed for a pre-trial review, where an application was made for the case to be dismissed. Lieven J confirmed that the principles that apply to whether a fact-finding hearing is necessary and proportionate in private law also apply to public law. The court noted that the difference between private law and public law cases is that public law proceedings require threshold findings to be made before any public law order can be made; if there is no fact-finding in this matter and threshold cannot be made out, then the court does not have the jurisdiction to make public law orders.

Lieven J determined that it was not necessary or proportionate to hold a fact-finding hearing in this matter, given that, even if the court made all of the findings sought by the local authority, it would be unlikely to have a material impact on the ultimate orders for X. The court noted that there is no evidence here to support any finding of deliberately inflicted injury and that the overwhelming probability is that if the court did find a non-accidental injury, it would be a single act of significantly inappropriate handling of a very young baby, rather than any deliberate act or any course of conduct.

The court noted that there has been detailed oversight of the parents in this matter for over a year and the observations have shown that the parent’s parenting is entirely positive and there are no risk factors; this is particularly relevant to the assessment of future risk. Lieven J indicated that if orders were ultimately made, the current level of supervision is likely to cause X harm. Lieven J noted that, given the oversight of the family so far, the court would be extremely unlikely to remove X from the care of his parents.

The parents had confirmed that they would agree to a gradually decreasing supervision and safety plan so that the local authority can be satisfied that X is safe; Lieven J indicated that the court would likely end up with the same plan for decreasing supervision no matter what findings were made at a fact-finding hearing.

Lieven J indicated that a nine day fact-finding hearing was a disproportionate use of court time and that there was no justification to hold such a lengthy hearing in order for X to know ‘the truth’ in the future.

Mrs Justice Lieven DBE addressing the matter of habitual residence and what the relevant date is when determining habitual residence.
Derbyshire County Council v Mother and Ors [2022] EWHC 3405 (Fam)


Lieven J concluded that the relevant date when assessing habitual residence is the date that the court is seised of the matter and not the date of the hearing, irrespective of whether the other country is part of the 1996 Hague Convention or not.


Proceedings concerned A, aged 8, and B, aged 3. On 9 July 2022, B was taken to hospital by her parents after she had sustained a penetrating stab wound to her back caused by a kitchen knife; neither parent could give a comprehensive account of B’s injuries despite both accepting they were in the kitchen at the time when the injury occurred. The children were removed from the parent’s care and placed within family placements.

Interim care orders were made in respect of the children; the parents disputed the court’s jurisdiction on the basis that the children were habitually resident in Spain. The matter came before HHJ Williscroft who determined that the children were habitually resident in Spain and ordered a case summary to be drawn up to send to the Spanish courts; the ICO was continued on the basis of article 11 of 1996 Hague Convention.

On 26 October 2022, HHJ Williscroft indicated that she wished the issue of habitual residence to be reconsidered after having been directed to the decision of MacDonald J in London Borough of Hackney v P [2022] EWHC 1981 (Fam), where the relevant date for determining habitual residence was said to be the date of the hearing, whereas the court in this matter had proceeded on the basis that the relevant date was the date when the court was seised of the matter.

The matter was listed before Lieven J to consider what the relevant date is when considering habitual residence and whether the proceedings could progress within this jurisdiction.


Lieven J considered articles 5, 8, 9 and 11 of the 1996 Hague Convention; Lieven J concluded that the relevant date when determining habitual residence is the date the court is seised, irrespective of whether a country is a signatory to the 1996 Hague Convention or not. It was noted by the court that article 5 of the Convention does not specify the date upon which habitual residence is to be determined and that MacDonald J, in London Borough of Hackney v P, places great weight on the explanatory report on the Hague Convention. The court confirmed that the explanatory report is not an ‘agreement’ between the parties regarding the interpretation or application within the terms of Article 31 of the Vienna Convention.

The court confirmed that the issue of jurisdiction based on habitual residence is not straight forward, but approaches the matter by applying Article 31 of the Vienna Convention, which states that a treaty shall be interpreted in accordance with the ordinary meaning of the terms within it, and in the light of its object and purposes. Given that Article 5 of the 1996 Hague Convention does not deal with whether jurisdiction is determined at the outset of proceedings or is a floating issue throughout, the court must look to the object and purposes of the Convention.

The court indicated that overarching purpose of the Convention must be the protection of children and that if jurisdiction was to be revisited at every hearing, then this may cause practical difficulties and be detrimental to the interests of the child. Lieven J noted that a child’s habitual residence could change between the time the court is seised of the matter and a final outcome; allowing habitual residence to shift in this way creates uncertainty with the process that cannot be beneficial to the welfare of the child. Lieven J further added that the purpose of the Hague Convention is best met by habitual residence, and therefore jurisdiction, being determined when the Court is seised.

The court determined that the children were habitually resident in Spain at the time when the court was seised, but noted that under Article 11 of the Convention, the court does have the power to make ICO’s. All parties agreed that the English courts are best placed to determine the facts of the present case and so Lieven J ordered that the matter should be set up for a fact-finding hearing within this jurisdiction (with a request being made under Article 9 of the Convention).

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