Section 31 (2) Children Act 1989, and the meaning of ‘Significant harm‘
S 31 of the Children Act 1989 says this:
“31 Care and Supervision
(1) On the application of any local authority or authorised person, the court may make an order—
(a) placing the child with respect to whom the application is made in the care of a designated local authority; or
(b) putting him under the supervision of a designated local authority . . ..
(2) 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.”
Firstly, why is this provision of interest to TPs?
Well, if we can show that the harm our child is suffering from PA is “significant”, the local authority could take our child into care. Obviously (to us at least) our child is suffering this harm, and it is significant. But, how significant would that harm have to be for us to be prepared to allow our children to go into local authority care? In the care of a narcissist or in the care of a local authority…not a great choice…perhaps we could call it ‘the evil of two lessers’.
But, maybe if we could get the child moved to local authority care, that could be used as a stepping stone to moving the child into our care. It’s not a great solution, but at least the child would be removed from the AP. And courts have used this kind of device where a child was so alienated (by the time the courts had got to grips with the case) that he would not move directly into the TPs home, so was moved into local authority care as a temporary measure. (Re M (Intractable Contact Dispute)  2 FLR 636)
In: W (A Child)  EWCA Civ 772
Lord Justice Ryder noted that
“The mother’s conduct, even if explicable as a consequence of a psychological or behavioural condition, was inexcusable and highly damaging to the child [STOPPA comments: So, the AP must be censured, whether ‘mad’ or ‘bad’]. The judge’s finding that the mother was “bent on manipulation [STOPPA comments: this shows a ‘guilty mind – a positive intention] and encouraging false allegations” was a finding of huge adverse significance in relation to her capability to care for her child. The child had been encouraged by the mother to make allegations against her father despite the child’s own delight in seeing her father in the process of which she had obtained an unhealthy knowledge of sexual issues. On any basis, the risk of further significant harm to the child had to be addressed by the court. Given the prevalence of false allegations made by parents against each other in private law proceedings, conduct at this level by a parent should be understood to be serious child abuse that will usually necessitate intervention by a court. [Our emphasis]” [STOPPA comments: Surely this means that psychological abuse of this severity should be regarded as “significant” for the purpose of S 31(2) and can and should be seen as equivalent harm to that caused by sexual or violent abuse, and can and should trigger intervention by the Local Authority]
Indeed, Ryder LJ goes on to say:
“There can be no question that the court’s jurisdiction to make orders under sections 37 and 38 CA 1989 was engaged on the facts of this case [STOPPA’S emphasis]. The interim threshold for the making of an interim care order was clearly satisfied and there was jurisdiction to make that order.”
So…It is possible for PA to trigger transfer of care of a child to a Local Authority. In theory. In practice, we as TPs are going to have a lengthy uphill battle to get this done…