(Court of Appeal; Keene, Wall and Wilson LJJ; 25 August 2006)
Both parents had learning difficulties, the mother more profound difficulties than the father, whose main problems were in the area of verbal skills. The elder child had been assaulted by a man whom the father had allowed to stay in the family home notwithstanding that he knew that he was a Sch 1 of the Children and Young Persons Act 1933 offender. However, the assault had been reported by the father, and the local authority had not removed the children, but had worked with the family, eventually closing the file on the basis that the children were now adequately protected within the family. Some time later the authority became concerned, first about rows between the parents and then, more urgently, about an allegation made by a pupil at the children's school that she had seen the father whipping the children with belts. The children were removed from the family and placed with foster parents, with whom they progressed well. The judge rejected the allegation about the belts as very unlikely, and dismissed the sexual assault from the enquiry, however he concluded that the threshold to the making of a care order had been crossed under s 31(2) of the Children Act 1989, basing his conclusion on a psychologist's report, which had been prepared for the final hearing but given in evidence at the threshold hearing.
Remitting the case to another judge on the basis that the expert's report had a number of serious flaws, including use of material not disclosed to the parents, the court noted that cases in which the concern for a child's welfare was based on the learning difficulties or intellectual deficits of the parents were among the most difficult of care cases. If the evidence was that a child was thriving in interim foster care it was easy for a judge, tempted by the prospect of a full care order, to fail to scrutinise the evidence with the necessary rigour before holding that the threshold had been crossed. When considering the threshold, the judge must find proof of relevant facts, and it was only by reference to the hard facts, which should have been identified by the local authority in their threshold document, and which the parents should have been given a full opportunity to challenge, that the judge could proceed to hold that the threshold had been crossed. In this case, the local authority had summarily removed the children from their home on the basis of an allegation which the judge had found to be very unlikely, following a long period of support in which the authority had never suggested that removal from the parents would be in the interests of the children. If ultimately a care order were made it would not be on the basis that the parents suffered from learning difficulties; the courts did not, nor ever should, remove children from their biological parents on the basis that substitute parents would provide greater intellectual stimulus.