Family Law

The immortal Peter Cook once observed 'I could have been a Judge, but I never had the Latin for the judgin’' – like Peter Cook, I never really had a grasp on Latin, but the one bit that did resonate with me and that I was able to hold on to was ‘res ipsa loquitor’ – the thing speaks for itself. From the very fact that X occurred, one can infer everything else without going through every minute aspect.

Well, we now know from the Court of Appeal in Re J (A Child) [2015] EWCA Civ 222 that there is no such thing as res ipsa loquitor in care proceedings.

This is a culmination of a trend in case law, having begun long ago with Mr Justice Hedley in Re L (Care: Threshold Criteria) [2007] EWHC 3527 (Fam), [2007] 1 FLR 2050, at para [50]:

‘society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done.’

Revived in popularity by it being quoted approvingly and developed by the Supreme Court in Re B (Care Proceedings: Appeal) [2013] UKSC 33, [2013] 2 FLR 1075.

The first is in the judgment of Lord Wilson of Culworth JSC where he said (para [28]):



The other is the observation of Baroness Hale of Richmond JSC (para [143]):

‘We are all frail human beings, with our fair share of unattractive character traits, which sometimes manifest themselves in bad behaviours which may be copied by our children. But the State does not and cannot take away the children of all the people who commit crimes, who abuse alcohol or drugs, who suffer from physical or mental illnesses or disabilities, or who espouse antisocial political or religious beliefs.’

And, in part due to the transparency guidelines meaning that Circuit Judges put their own judgments on Bailii, thrusting His Honour Judge Jack into the spotlight.

North East Lincolnshire Council v G & L [2014] EWFC B192

‘I deplore any form of domestic violence and I deplore parents who care for children when they are significantly under the influence of drink. But so far as Mr and Mrs C are concerned there is no evidence that I am aware of that any domestic violence between them or any drinking has had an adverse effect on any children who were in their care at the time when it took place. The reality is that in this country there must be tens of thousands of children who are cared for in homes where there is a degree of domestic violence (now very widely defined) and where parents on occasion drink more than they should, I am not condoning that for a moment, but the courts are not in the business of social engineering. The courts are not in the business of providing children with perfect homes. If we took into care and placed for adoption every child whose parents had had a domestic spat and every child whose parents on occasion had drunk too much then the care system would be overwhelmed and there would not be enough adoptive parents. So we have to have a degree of realism about prospective carers who come before the courts.’

His Honour Judge Jack’s comments were cited approvingly by the President in Re A (Application for Care and Placement Orders: Local Authority Failings) [2015] EWFC 11 (the case that some have dubbed ‘the welfare of the bundle is the Court’s paramount consideration’ case…).

And again in Re J, by the Court of Appeal.

All of these cases share a common thread that not every piece of behaviour by a parent that might be complained of can amount to threshold, even when it falls into categories such as domestic violence, alcohol misuse, and as in Re A a sexual offence against a minor.

In order to satisfy threshold, even where what is being asserted is a likelihood of harm, the local authority have to provide evidence that the matter complained of not only happened but that if it happened it amounts to harm or a risk of harm to the child.

The Court of Appeal make it very clear in Re J:

The State will not take away the children of “those who commit crimes, abuse alcohol or drugs or suffer from physical or mental illness or disability, or who espouse antisocial, political or religious beliefs” simply because those facts are established. It must be demonstrated by the local authority, in the first place, that by reason of one or more of those facts, the child has suffered or is at risk of suffering significant harm.

It would no longer be sufficient, for example, for a local authority to prove that a mother has been taking crack cocaine. They would need to show why it was that the mother’s use of crack cocaine had either harmed this child (by way of showing the neglect suffered or an injury suffered as a result of poor supervision) or why it would be LIKELY to. There has to be made explicit a link between the behaviour complained of and the harm that is said to result from that behaviour.

The Court of Appeal drew from Re A and set down a set of principles to be followed. The case garnered less attention than Re A (which had in its favour when it came to publicity, both a Judge giving a local authority what-for, and the English Defence League issues) but these principles are worthy of note:

[All italics are the author’s, for emphasis.]



If these principles are not followed, the local authority, just as in Re A might find that what it considered to be a comfortably made out threshold instead leaves them without a leg to stand on.

And as we entered this piece with Peter Cook, let us leave that way as well.

The leg division, Mr Spiggot. You are deficient in it to the tune of one. Your right leg, I like. I like your right leg, it's a lovely leg for the role. That's what I said when I saw it come in. I said, "that's a lovely leg for the role". I've got nothing against your right leg. The trouble is — neither have you.