CASE NO: RG16C00346
THE FAMILY COURT SITTING AT READING
5th October 2016 
Before 
Her Honour Judge Owens
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WBC v A
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Mr Leong, Counsel, for WBC
Ms Myerscough, Solicitor, for the First Respondent Mother, CA
Mr Robertson, Solicitor, for the Second Respondent Father, KA
Ms Cox, Legal Executive, for the Third Respondent, RA, acting through his Children’s Guardian

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JUDGMENT
Introduction
I am dealing with public law proceedings in relation to RA, who will shortly turn 15 years old.  RA was adopted by CA and KA in 2008.  RA was removed from his birth family during public law proceedings in 2005 in Essex.  The reason for his removal was that he was found to have been suffering significant emotional and physical abuse, as well as neglect whilst living with his birth family.  It later came to light as a result of disclosures from RA that he is likely to have suffered sexual harm in the care of his birth family as well.  Prior to his adoption, RA spent two years in foster care.  The initial care plan for him had been one of long term foster care with his foster carers but sadly the foster carer concerned was diagnosed with a terminal illness.  The care plan changed to one of adoption and a placement order was granted in May 2007, leading to his adoption in 2008.  The application for a care order which I am dealing with was made on 23rd March 2016.

As the social worker notes in her first evidential statement dated 16th March 2016 (C7) “as a result of his early experiences RA has significant attachment difficulties and emotional and behavioural issues.  In recent years, RA has become increasingly verbally and physically aggressive in all settings, most prominently in relation to his mother.  RA has also increasingly engaged in sexual behaviours”.  In addition to these issues, RA has complex cognitive issues and presents with sensory processing difficulties and has ADHD, Cranio Syntosis, epilepsy and potentially Saethre-Chotzen syndrome.  He also has learning disabilities resulting in his functioning being significantly below his chronological age.

In September 2013, RA started attending MGS with support provided to address his challenging behaviours.  Despite this, RA’s behaviours became increasingly difficult to manage.  This culminated in a referral in October 2014 to Children’s Services by MGS, with the agreement of the parents, and which led to attempts by Education and Children’s Services to ensure that an appropriate package of therapy, education and respite was in place for RA.  Despite this, there were two deeply troubling incidents in early 2015 of inappropriate behaviour by RA towards firstly a female peer at Mencap after school club and secondly towards his mother.

Incidents of concern in relation to RA’s behaviour continued and this culminated in his moving from MGS to SPECIALISED UNIT for education in September 2015.  It was noted that the parents demonstrated “a very high level of resilience and commitment” and that they “ were working closely and successfully with agencies demonstrating a strong understanding of RA’s needs and accepting advice and support to manage risks and meet his therapeutic needs”  (C10).  In October 2015 it appears that SPECIALISED UNIT expressed concern about the sustainability of arrangements and KA and CA indicated that they did not think that SPECIALISED UNIT was meeting his needs and that they could manage the risks he posed.  Children’s Services were of the opinion that RA’s behaviour posed significant risks and that these were no longer manageable in the home and unsustainable in the community.  In consequence, they convened a Child Protection Conference on 12th January 2016.  This resulted in RA being made subject to a Child Protection Plan under the category of neglect.  

In the course of these proceedings, there have been assessments conducted by two experts.  Dr Bourne, a Child and Adolescent Psychiatrist, and Dr Allen, an Educational Psychologist, prepared and filed reports in August of this year (E22 and E77).   They made very clear recommendations about what RA and his parents would require in terms of a support package.  This led to a professionals meeting taking place on 7th September.  Earlier in these proceedings it had been noted that RA should have been provided with an Education Health and Care Plan but one had not yet been done.  At the professionals meeting it became apparent that his EHCP had already been prepared and agreed by the parents before that meeting.  However, many of the recommendations of Dr Allen had been incorporated and the plan was disclosed to the parties to these proceedings.

The result of the above was that a care plan was formulated, as well as an updated EHCP, and all parties are in agreement with the provisions of the final care plan and that there should be no order in this case.

The remaining issue for me to determine in this case relates to threshold.  As a result of my indicating that a more succinct threshold document could and should be prepared, and in light of concessions made by the parents in relation to the facts pleaded in terms of threshold, the Local Authority prepared a final threshold document which can be found in the bundle at A33-34.  This contains 4 factual findings and 2 relating to attribution as follows:

“At the time of the instigation of protective measures (12th January 2016) RA (DOB) was suffering and likely to suffer significant harm, and that harm was attributable to his being beyond parental control (within the meaning of section 31(2)(b)(ii) of the Act) in that:
1) On 24th February 2015, 22nd March 2015, 3rd June 2015 and 12th August 2015, and notwithstanding close supervision, RA sexually assaulted numerous children;
2) On 22nd March 2015, RA sexually assaulted his mother;
3) On 20th November 2015 RA caused his mother to fear for her safety in light of his persistent and aggressive attempts to initiate sexual contact with her;
4)  On 23rd November 2015 RA gave a detailed account to his school of participating in a variety of sexual acts with his mother thereby revealing sexual fantasies involving her and upon which he had already acted or attempted to act, placing her at further risk of sexual assault(s);
5) Whilst it is not asserted that his parents are in any way the cause of his sexually deviant and abusive behaviours and fantasies, the causes of and motivations for RA’s behaviours were neither understood nor regulated at the time of the commencement of protective procedures;
6) That being so, and in light of the opportunistic nature of RA’s sexual misconduct, he was at risk of significant harm as well as being a risk of significant harm to others, including his mother in particular”
All of the factual findings have been conceded by either one parent or the other.  The only issue raised is by Ms Myerscough on behalf of the mother.  She submitted that her client took exception to the use of the word “numerous” in the paragraph 1 of threshold.  This objection is not on a factual basis that the incidents referred to did not happen.  It is on the basis that CA feels that this implies a qualitative assessment of the numbers of assaults rather than simply a quantitative assessment.  The Local Authority accept that their intent was a quantitative rather than qualitative indication.  The second threshold issue raised by Ms Myerscough on behalf of the mother relates to the end of paragraph 4.  Specifically she takes issue with the necessity of having the end of the sentence from after the words “sexual fantasies” because she thinks it is not sufficiently clear that much of what RA disclosed was not real or acted upon.  Ms Myerscough accepts that this is a small point overall.  

The main issue relates to attribution.  The Local Authority contend that a Court must consider whether or not threshold is made out in order to go on to consider the welfare stage of the proceedings, even where all parties agree that the appropriate welfare disposal is no order.  Mr Leong for the Local Authority has submitted a detailed skeleton argument in support of this contention, and arguing that the parents’ advocates have misread section 31(2) of the Children Act 1989.  He submits that the Local Authority do not need to prove that there has been any deficit in parenting and that this is responsible for the child’s being beyond parental control.

The position of the parents is quite simply that they do not accept that the threshold criteria in this case are made out.  In summary, they both argue that the Local Authority need to show a causal link between RA’s being beyond parental control and the harm suffered as well as between the actions of the parents and the child being beyond parental control.  I have also had detailed skeleton arguments from both advocates for the parents addressing this.

The Guardian submits that the case law in relation to this aspect is not clear (though all advocates accept that there is very little case law on the subject at all).  The Guardian’s advocate submits that the case law in contradictory in terms of whether there has to be parental culpability in relation to the section 31(2)(b)(ii) criteria.  Pragmatically, the Guardian questions the benefit to RA of establishing threshold, pointing out that the services and support which are essential in terms of meeting RA’s welfare needs will be provided by way of a Child in Need Plan, his EHCP and the SPECIALISED UNIT support plan.  His parents have indicated that they will continue to work with the Local Authority and the Guardian points out that there will be no practical difference to RA whether no order is made or the proceedings are withdrawn. On balance, the Guardian accepts that any threshold document may well travel with RA into adulthood and this, coupled with the positions of the parents, leads to the Guardian suggesting RA may be better served by the Local Authority seeking to withdraw proceedings. 

Conclusions

I have considered carefully the written and oral submissions made to me in this case, as well as the written evidence in the bundle. 

The first issue I find necessary to determine relates to whether or not I have to consider threshold at all where all parties agree that there should be no order.  The Local Authority submit that the case of Oxfordshire CCC v DP, RS & BS [2005] EWHC 1593 (Fam) is clear authority for a court having to consider whether threshold is met even where no party is seeking an order at the welfare stage of the proceedings.  I have also been referred by Mr Robertson for KA and Ms Cox for the Guardian to the cases of In Re P (Permission of withdraw care proceedings) [2016] EWFC B2 before HHJ Redgrave and Re K (Children with disabilities: Wardship) [2012] 2 FLR 745, as well as Redbridge London Borough Council v B and C and A (By his Children’s Guardian) and Re J, A, M and X (Children) [2014] EWHC 4648 (Fam).

It seems to me that the advocates in this case are largely in agreement as to the legal position generally in relation to consideration of threshold, although they have approached it from different starting points.  I think I can summarise the legal position as follows:

1.	In public law proceedings, the determination of public law proceedings involves a two stage test, threshold followed by welfare.  This is clear from the case of Re S-B (Children) (Non-Accidental Injury) [2009] UKSC 17, reiterated again in the later case of Re J (Children)(Non-Accidental Injury: Past possible perpetrator in new family) [2013] UKSC9.  These cases make clear that the threshold must be crossed before state intervention to protect a child can be justified.

2.	Unless the applicant Local Authority seeks permission to withdraw proceedings (pursuant to rule 29.4 FPR 2010) without the need for determination of threshold, stage one is to consider the threshold criteria under section 31.

3.	If the Local Authority cannot prove threshold at this point (taking into account the burden and standard of proof as required by Re A (A Child) [2015] EWFC 11), the decisions in the cases of Redbridge London Borough Council v B and C and A (By his Children’s Guardian) and Re J, A, M and X (Children) [2014] EWHC 4648 (Fam) are clear authority that the Court must dismiss the application.  Even without these authorities, it seems to me that this would be the logical conclusion to be reached since this is the necessary precursor which must be met before the Court can go on to consider whether or not an order is in the welfare interests of the child concerned.  

4.	At this point the Court is not considering the welfare checklist set out in section 1(3) of the Children Act 1989.

5.	If the threshold criteria are established at this point then a second stage must be considered. The extent of the Court’s investigative responsibility in care proceedings where the parties were agreed as to the outcome was considered in Re G (A Minor) (Care Order: Threshold Conditions) [1995] Fam 16 and Oxfordshire CCC v DP, RS & BS [2005] EWHC 1593 (Fam).  The key points of these two cases is that even where all parties agree that threshold is met, the Court has a duty to satisfy itself about this.  Clearly, applying the overriding objective and duty to manage cases in rules 1 and 2 of the FPR 2010, the Court has a duty to deal with cases expeditiously and fairly but also dealing with them in ways which are proportionate to the nature of the case.  Therefore a Court presented with parties who do not dispute that threshold is met on the written evidence may limit its consideration to whether or not the uncontested written evidence supports such a finding.  Equally, in a case such as this, where the factual evidence is not in dispute but the issue is a question of law concerning threshold, the Court may deal with the case on submissions.  As a matter of good practice this is more likely to be article 6 compliant if all parties agree to this course of action in advance, I would suggest.  Good practice and the application rules 1 and 2 of the FPR 2010 would also be to allow parties to submit written skeleton arguments in advance of the hearing as I have done in this case. 

6.	Prior to consideration of the second stage, it is open to the applicant to seek permission to withdraw (again, pursuant to rule 29.4 FPR 2010).  Several of the cases cited in the course of the advocate’s submissions to me in this case deal with permission to withdraw.  Mr Leong for the Local Authority submitted that I should be careful to differentiate between such applications and the situation in this case where the Local Authority seek threshold findings but no order. I do agree that different considerations apply if a Court is being asked to grant permission to an applicant to withdraw their application.  In the absence of such a request, the Court has to go through the two stage decision making process I have already mentioned.  Having considered threshold and found it crossed, it must go on to consider whether the welfare of the child (by application of the welfare checklist in section 1(3) of the Children Act 1989) requires a particular order.  This consideration of a particular order also enables the Court to consider making no order by virtue of section 1(5).  As part of this welfare stage, the Court must also consider what is necessary and proportionate, given that the article 8 rights of the child and their family are engaged.

In light of the above, and given that the Local Authority in this case have not sought permission to withdraw proceedings prior to consideration of threshold, I find that I have to consider whether or not the threshold criteria are met in this case.  As I have noted earlier, threshold in this case is pleaded under section 31(2)(b)(ii).  The factual basis is largely agreed, save for the reservations I have noted on behalf of the mother.  The undisputed evidence in this case (primarily the initial social work statement at C1 to 38, though there is also the final social work statement which confirms that RA has been the subject of a Youth Conditional Caution as a disposal in relation to criminal proceedings relating to sexual touching – C152) is clear that RA sexually assaulted children on the four occasions cited in paragraph 1 and did so notwithstanding close supervision.  I can understand the concerns of CA about the use of the word numerous, even though I do not find that it was intended to be used in a qualitative way by the Local Authority.  It seems to me that a better word to use would be several.  That more accurately covers the finding sought as it literally means more than two but not many.  I will therefore find as follows: 1) On 24th February 2015, 22nd March 2015, 3rd June 2015 and 12th August 2015, and notwithstanding close supervision, RA sexually assaulted several children;”

In relation to the other point raised on behalf of mother, I do find that this is such a minor point as to be irrelevant to the overall issue of whether or not the facts are made out.  Both parents accept the written evidence that RA gave the detailed account of his fantasies to his school on 23rd November 2015, and that this revealed fantasies involving his mother and upon which he had already acted (notably the 22nd March 2015 assault upon her) or attempted to act (the 20th November 2015 incident for example).  This also clearly placed CA at further risk of sexual assault(s).  The written evidence in relation to this is at F14 of the Bundle.  As I have said it is not disputed that RA made these disclosures and that the record of those disclosures is accurate.  Nor is it disputed that RA sexually assaulted his mother as set out in paragraph 2 and caused her for fear for her safety in paragraph 3.  Accordingly I do make the threshold findings sought at paragraphs 2, 3 and 4.

In relation to the last two threshold findings sought, paragraphs 5 and 6, again these are not disputed by the parents in terms of the written evidence before me.  It is abundantly clear to me on the papers in the Bundle that at the time of the commencement of protective measures, the causes and motivations for RA’s sexually deviant and abusive behaviours and fantasies were neither understood nor regulated.  It is equally clear to me that there is no evidence that his parents are in any way the cause of these behaviours and fantasies.  Accordingly as a matter of fact I find this fifth paragraph proven on the basis of the written evidence before me.

The final threshold paragraph relates specifically to RA being at risk of significant harm in light of the previous findings and in light of the “opportunistic nature of RA’s sexual misconduct”, as well as him being a risk of significant harm to others, including his mother in particular.  Again, this is not in dispute in terms of pure fact and I agree that the written evidence allows me to make this finding.

The next issue which falls to be considered relates to the interpretation of section 31(2)(b)(ii) and specifically the question of attribution.  The case which both parents pray in aid of their arguments about attribution is Lancashire County Council v B [2000] 1 FLR 583 and specifically Lord Nicholls consideration of the attribution element of threshold as follows:

“Before identifying the issue I should mention two preliminary points which attracted little, if any, controversy between the parties. First, the phrase ‘attributable to’ in s 31(2)(b) connotes a causal connection between the harm or likelihood of harm on the one hand and the care or likely care or the child’s being beyond parental control on the other hand. Echoing the language of Donaldson J in a different context (in Walsh v Rother District Council [1978] 3 All ER 881), the connection need not be that of a sole or dominant or direct cause and effect; a contributory causal connection suffices. For instance, if a parent entrusts a child to a third party without taking the precautionary steps a reasonable parent would take to check the suitability of the third party, and subsequently the third party injures or sexually abuses the child, the harm suffered by the child may be regarded as attributable to the inadequate care of the parent as well as the third party. 

The second preliminary point is that to be within s 31(2)(b)(i) the care given or likely to be given must fall below an objectively acceptable level. That level is the care a reasonable parent would provide for the child concerned. Thus an absence of a reasonable standard of parental care need not imply that the parents are at fault. It may be, for instance, that for reasons beyond their control the parents are not able to provide a reasonable standard of care for the child.

This case of course relates primarily to cases where the court needs to adjudicate between different persons within a pool of perpetrators and pre dates Re B and the binary approach now accepted as the way forward in such cases. The comments are clearly obiter and were not apparently the subject of argument. However, it is submitted on this test where it is conceded that there is no failure, on an objective basis, in the standard of parenting the attribution test cannot be satisfied.’

Ms Myerscough follows this quote in her skeleton argument with the submission that “On behalf of Mother it is submitted that there must be a causal link between the actions of the parents and being beyond parental control. If this link cannot be established as in this case then it is not appropriate for the threshold to be found. In effect there has to be some fault on the part of the parents, or at least some historic actions on their part that have brought about the circumstances of the child being beyond parental control.”

Mr Robertson for the father sets out his case slightly differently.  He argues “where it is conceded that there is no failure, on an objective basis, in the standard or parenting, the attribution test cannot be satisfied”.

With the greatest of respect of both advocates, who have immense experience in public law proceedings, it does seem to me that they have both misread the provisions of section 31(2) and Lord Nicholls’ comments in the Lancashire case.  Section 31(2) reads as follows: “A court may only make a care order or supervision order if it is satisfied— 

(a)that the child concerned is suffering, or is likely to suffer, significant harm; and 

(b)that the harm, or likelihood of harm, is attributable to— 

(i)the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or 

(ii)the child’s being beyond parental control.”
I have added the bold text and highlight to the word “or” between the two subsections.  The effect of the punctuation in the section is to create two alternative grounds for a child to be found to be suffering or likely to suffer significant harm.  Those alternative grounds are either arising from the care given or likely to be given to the child not being what it would be reasonable to expect a parent to give him, or from the child being beyond parental control.  To make it even clearer, the effect of the punctuation in terms of the threshold I have to consider in this case is as follows:  
“(a)that the child concerned is suffering, or is likely to suffer, significant harm; and 

(b)that the harm, or likelihood of harm, is attributable to— 

(ii)the child’s being beyond parental control.”

Lord Nicholls in the Lancashire case considered two aspects of threshold.  Firstly, he was very clear that the phrase ‘attributable to’ in section 31(2)(b) “denotes a causal connection between the harm or likelihood of harm on the one hand and the care or likely care or the child’s being beyond parental control on the other hand”.  Secondly, and perhaps less importantly for the case I am considering, he set out that to be within section 31(2)(b)(i) the care given or likely to be given must fall below an objectively acceptable level.  Lord Nicholls was dealing with a case where threshold was under section 31(2)(b)(i) and specifically he was considering cases where the Court needed to adjudicate between different persons within a pool of potential perpetrators in a non-accidental injury case.  As he noted at page 587 the case he was considering was not concerned with the child’s being beyond parental control.  His quoting of Lord Mackay LC at the committee stage of the legislation at 588 (prayed in aid of the father’s case by Mr Robertson this morning) must therefore be read in light of this.  It therefore seems to me that the Lancashire case is not helpful in resolving the issue of whether or not there has to be shown to be some element of the parenting a child has received causing the child being beyond parental control.

The case advanced by the parent’s advocates to me is that there has to be some causal linkage between the parenting provided by these parents and RA’s being beyond parental control.  In particular they rely upon the case of Re P (Permission to withdraw care proceedings) [2016] EWFC B2 before HHJ Redgrave.  Leaving aside the issues that this case is at best only persuasive authority as it is a County Court decision and that it was considering permission to withdraw, HHJ Redgrave reached the conclusion that it was appropriate to grant the Local Authority permission to withdraw on the basis that it was unlikely to be able to prove threshold.  She also found (though I have to say that I did not find her reasoning very clear) that she disagreed with HHJ Bellamy in the case of Re K (Post Adoption Placement Breakdown) 2013 1FLR.  In the latter case, which was before HHJ Bellamy sitting in the High Court, he concluded that if a child suffered significant harm as a result of a disorder which affected her behaviour and as a result of that behaviour the parent is unable to control the child, that lack of control was at the very least, a contributory cause of the likelihood of future harm.  She also referred to the cases of Re:O [a minor] (care proceedings: education) 1992 4 All ER 905 and M v Birmingham City Council [1994] 2 FLR 141, stating that she had read the cases and took from them the proposition that lack of control involved parental culpability and that the learned judges in both of those cases assumed this proposition to be the case.  As Mr Leong correctly points out, this is not in fact what those two cases held.  The former was concerned with whether failure on the part of a child to regularly attend school was capable of amounting to significant harm and the latter with the relevant date for the purposes of section 31.  It seems to me that I am not assisted by the case of Re P because it concerns permission to withdraw an application, does not seem to have had the right facts in relation to the case law considered and does not set out the reasons for the Court departing from the decision taken by HHJ Bellamy in the Re K case.

I do find assistance in the case of Re L (a minor), unreported 18th March 1997, however, and which Mr Leong and Ms Cox for the Guardian referred to in their skeleton arguments.  That case was dealing with a situation where a mother sought to argue that threshold criteria were not met because the child’s challenging and difficult behaviour could not be attributable to any parenting misfeasance on the part of the parents.  Butler-Sloss LJ (as she then was) stated in her judgement: “It is suggested most attractively by Mr Jubb in a long, careful, comprehensive skeleton argument and short, succinct oral argument to us that in order to show that a child is beyond parental control you must show some misfeasance by the parents. There is almost no authority on the phrase "beyond parental control" and certainly no authority to support the proposition, bold proposition as Mr Jubb is prepared to accept it as, that he makes to us today.”
Her Ladyship went on to consider the 1991 Guidance to the Children Act 1989 and stated: “That seems to me to be a useful summary of how those who put the Act together saw the use of what is a long-standing part of the previous child legislation of "beyond parental control".”

This guidance has since been updated in 2008 in relation to section 31(2)(b)(ii) and now reads as follows:

“3.40	The second limb requires the court to be satisfied either that the harm, or likelihood of harm, is “attributable to the care given, or likely to be given, to the child not being what it would be reasonable for a parent to give to the child” or that the child is “beyond parental control”. If the issue is the adequacy of parenting, there must be a direct connection between the harm suffered (or likely to be suffered) by the child and the care given by the parent. Harm caused solely by a third party is not therefore relevant, unless the parent could have been expected to intervene to prevent it and, unreasonably, did not do so. The quality of care given to the child will be compared with what it would be reasonable to expect a parent, having regard to the child’s needs, to give the child. ‘Care’ is not defined but in the context is interpreted as including responsibility for making proper provision for the child’s health and welfare (including promoting his physical, intellectual, emotional, social and behavioural development) and not just meeting basic survival needs.
3.41	If the child is determined by the court as being beyond parental control, this means that, whatever the standard of care provided by the parents, the child is suffering or is likely to suffer significant harm because of lack of parental control. This requires the court to determine whether as a matter of fact, the child is beyond control: it is immaterial who, if anyone, is to blame. ...”

Her Ladyship went on to say in the Re L case:

“Quite simply this child is beyond the control of his parents. It is extremely sad. It is not a case of apportioning blame. It is a case of recognising a very worrying situation and one would have hoped, trying to work together, to make something of this child.
...
In Mr Jubb pursuing these fascinating but arid arguments as to what is meant by "beyond parental control", so far as I am concerned the Court of Appeal would not gain any benefit from the way in which this Act is to be interpreted by such a description and would be, in my view, more likely to look at it and say on the broad and sensible approach, "Look at what has happened to this child. The evidence is really undisputed and the law to be applied is that that evidence shows that he is beyond parental control and, as a matter of law, he is beyond parental control".

It may be that there will be other cases when it is necessary to look at what is meant by "beyond parental control", but, for my part, this is an absolutely straightforward case of a child who is beyond everybody, it seems to me, except one or two dedicated people and so far from the parents being opposed to what is going on they should be grateful that those with greater knowledge are trying to do something for the future of their child. Consequently, in my view, there is not a flicker of an argument that the threshold conditions have been met.”

The approach adopted by Butler-Sloss LJ is precisely the one which HHJ Bellamy adopted in the Re K case.  He did not find any culpability on the part of the adoptive parents but held that the child’s behaviours justified a finding that she was beyond parental control and that threshold was satisfied on that basis. The combination these authorities and the Guidance seems to me to be clear that there is no requirement on the part of an applicant Local Authority to show that there is a causal link between the parenting the child has received and the child being beyond parental control for the purposes of section 31(2)(b)(ii).  Mr Robertson made mention of the positon as it stood under the Children and Young Persons Act 1969 whereby being beyond parental control alone was sufficient for the Court to make an order.  He submitted that the intention of Parliament was to ensure that there was a threshold which had to be crossed before the state could intervene.  I don’t think anyone disputes that this was the case.  What is in issue is his submission that there not only has to be a causal link between the child being beyond parental control and suffering or being likely to suffer significant harm but that there also has to be a failure in parenting on the part of the parents involved in these proceedings and that failure in parenting is what has led RA to be beyond parental control.  I find that this is stretching the relevant authorities and the legislation beyond the point of reasonable interpretation.  The legislation seems very clearly worded to me as it simply requires the Local Authority to show that at the relevant date RA was suffering or likely to suffer significant harm and that that significant harm was attributable to his being beyond parental control.   As Mr Leong outlined, if the law were to require a Local Authority to prove that a child’s being beyond parental control was directly attributable to the parenting the child had been receiving at the relevant date, this could create very difficulties in cases where the child had either no living parents or none in the jurisdiction but was nonetheless beyond parental control and suffering or likely to suffer significant harm as a result.  

Both Mr Robertson and Ms Myerscough seek to persuade me that RA’s welfare demands that I do not find threshold met in this case.  The Guardian also submitted that it may have been better for RA if the Local Authority had sought permission to withdraw the application before seeking threshold findings.  I cannot see that the legal positon as I have found it to be allows me to conflate the two stage decision making process so as to elide threshold and welfare checklist considerations. Ms Cox and Ms Myerscough also made submissions about their clients’ concerns regarding the impact on RA of having threshold findings made which follow him throughout the rest of his life.  As Mr Leong correctly pointed out, RA already has a criminal disposal from the Youth Court in relation to sexual touching.  Given the level of risk which RA clearly poses in terms of sexual harm if his behaviours are not appropriately addressed and his parents not provided with adequate support (looking in particular at the report of Dr Bourne but also at the social work evidence), I find that it is important not to downplay the significance of this (see particularly E73).   I also find that I cannot force a Local Authority to seek to withdraw an application.  Whilst Ms Myerscough struggled to see the benefits of the course of action taken by the Local Authority in pursuing threshold findings but seeking no order, I can see the both the legal necessity of doing so if the Local Authority do not seek permission to withdraw before this point, as well as the practical effect of having a clear factual matrix to base support upon, as Mr Leong persuasively submitted.   It also, as Ms Myerscough accepted, does have the advantage in this case of my being able to make a clear finding that the parenting of these parents did not in any way cause RA to be beyond parental control.

It is not disputed in this case that at the relevant date RA was beyond parental control.  Mr Robertson and Ms Myerscough make that abundantly clear in their skeleton arguments.  It is also not really in dispute that at the relevant date RA was clearly suffering significant harm.  In light of this, and having considered the written evidence in this case, I am satisfied on balance of probabilities that threshold under section 31(2)(b)(ii) is met in this case and as set out in my threshold findings above.

The next stage I have to consider is the welfare issue and to what extent RA’s welfare is met by the proposed care plan which is for no order but for support to be provided under a Child in Need Plan.  It is here, I find, that the extent to which the parents are capable of parenting RA is relevant.  This is, after all, one of the headings in the welfare checklist set out in section 1(3) (specifically subsection (3)(f).  It is abundantly clear to me that his parents are capable of meeting RA’s needs with the extensive support outlined in the care plan, but that without such support they would struggle. Applying the other relevant welfare checklist headings RA clearly wants to remain in the care of his parents and the plan allows for just this.  RA has very extensive and challenging physical, educational and emotional needs.  No change of circumstances is envisaged by the proposed care plan.  He is likely to suffer further significant harm arising from his extremely challenging behaviours if he and his parents are not provided with the extensive support package outlined in the plan.  

Applying the range of powers available to me, I could either make a supervision order or make no order.  A supervision order would require the Local Authority to advise, assist and befriend RA as the supervised child (section 36 Children Act 1989).  It would also, however, entail a greater level of potential interference with RA’s private and family life because it does entail a greater degree of statutory monitoring over and above a Child in Need Plan.  I also have to consider proportionality and I find that a supervision order would be disproportionate in circumstances where the required support can be provided through a Child in Need Plan and where the parents and Local Authority are able to work positively with each other in RA’s best interests.  I will therefore make no order in this case.