[2020] EWCA Civ 281

A children’s guardian appealed against a judge’s refusal to make a child assessment order under the Children Act 1989 s.43 in respect of four siblings.

The children were aged between nine and 18. In about 2015/2016 their father was imprisoned following his conviction for offences contrary to the Terrorism Act 2000, and there was concern about the impact of his beliefs and activities on the children. He had taken some of them to meetings and demonstrations, and an image of a beheading was found on one of their phones. Following the father’s release on licence in late 2018, an assessment conducted under s.47 of the Act concluded that various assessments and interventions were necessary. When the mother opposed those interventions, child protection plans were made and the local authority proposed that the children be assessed by an “intervention provider” to establish whether they needed mentoring to help challenge extremist ideas. The parents refused to consent. Although the father’s licence was subsequently revoked and the children made good progress, the local authority initiated public law proceedings and applied for a child assessment order to determine whether the children had been impacted by their father’s violent extreme ideology, and whether they were resilient enough in their understanding of their faith to minimise the risk of future radicalisation. The application was supported by the children’s guardian but opposed by the parents and the older children. The judge refused the application. Essentially, he held that he had no power to make a child assessment order. Even if he had the power, he held that the delay between 2015 and 2019 meant that it was too late to exercise it, and that an assessment order would be disproportionate in any event.

HELD: Jurisdiction – The judge accepted the father’s argument that, for there to be an assessment order, s.43(1)(a) and s.43(1)(b) meant that the local authority had to have “reasonable cause to suspect” harm or a likelihood of harm, and an assessment had to be necessary to determine whether such harm or likelihood in fact existed. The argument went that because the local authority had made child protection plans, it must consider that harm, or the likelihood of it, actually existed. On that basis, it was argued, the test in s.43(1) was not satisfied: no assessment was required to determine whether harm or the likelihood of it existed, because the local authority already believed that it did (see paras 18-20 of judgment). However, the judge had erred in accepting that argument; he had the power to make the order. Section 43 had to be read in the context of the legislation as a whole. Child assessment orders formed part of the initial stages of investigation and assessment. The s.43(1)(a) requirement of suspicion was a threshold to be crossed, and the normal rule of statutory interpretation (that the greater included the lesser) applied. Once that threshold was crossed, the only restriction was that an assessment order could not be made if an emergency protection order should be made instead. Although s.43(1)(b) existed to ensure that an assessment could only be ordered if it was necessary, the judge’s narrow interpretation of that subsection limited the flexibility with which the powers under the Act should be exercised (paras 21-23).

Merits – The judge’s decision was not one that he could reasonably have reached. There was a clear basis for serious concern about the children’s welfare, and risk of the instant kind could not be regarded as “historic” until it was positively shown not to exist. The judge had given insufficient weight to the obvious risks inherent in the father’s views, which were magnified by the parents’ aligned position and withdrawal of co-operation. By contrast, he had given disproportionate weight to his critical view of the local authority’s approach. The proportionality exercise had gone awry. High-performing, law-abiding children were not immune from the lure of extremism, and social workers and intervention providers were not threats from whom children had to be protected (para.32). An argument by the father that s.43 did not permit assessment of the children’s religious faith because it was not a facet of their health, development or treatment by their parents was unsound. It was not the children’s religious faith that was being assessed, but their vulnerability and resilience in the face of extremist propaganda. The function of a child assessment order was to provide a range of information to identify whether harm, or the likelihood of it, might exist; describe the nature and extent of any harm; and determine whether further action was necessary. It was part of the information-gathering process designed to ensure that child protection measures could be appropriately calibrated, it was the least interventionist of the court’s child protection powers, and it might be particularly apt where the suspected harm was long-term and cumulative. While the views of an older child were an important consideration, the fact that such a child might oppose an order did not necessarily mean that one was unlikely to be made, Q (A Child) (Interim Care Order: Jurisdiction), Re [2019] EWHC 512 (Fam) considered. The instant matter was a paradigm example of a case for which s.43 was intended, and the evidence clearly pointed to the making of a child assessment order (paras 33-37).

Appeal allowed

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