FC & Anor, R (on the application of) v Bristol City Council

THE HON. MR JUSTICE DEXTER DIAS Table of Contents I. Introduction2 II. The impugned decision3 III. Permission, grounds, issues7 IV. Evolution of the Working Together guidance9 GROUND 110 V: Issue 1 (significant harm)10 VI. Issue 2 (child protection plans)27 VII. Issue 3 (emotional abuse)43 VIII. Conclusion: Ground 154 GROUND 255 IX. Approach to Convention rights55 X. Issue 4 (least intrusive measures)58 XI. Issue 5 (fair balance)60 XII. Conclusion: Ground 262 XIII. Disposal62 Mr Justice Dexter Dias :

1. This is the judgment of the court.

2. To assist the parties and the public to follow the main lines of the court’s reasoning, the text is divided into 13 sections, as set out in the table of contents above. The table is hyperlinked to aid swift navigation. I. Introduction

3. This is an application for judicial review. At the very heart of it are two children.

4. The children are the claimants in this case. At every point of this important and complex claim, I have had each of them and the difficulties of their parents at the forefront of my mind. However, this is a claim in the Administrative Court and not an application in the Family Division. Therefore, it is not the court’s task to make welfare decisions about the children as one would do in family proceedings.

5. The eldest child is SC and is now aged

12. He prefers to use the pronouns he/him, although the historical records may refer to him differently. If reference in this judgment is made to those records using the previously used pronoun, it is not intended to be disrespectful but accurately reflect the historical records. I may sometimes use the pronoun “they” when referring to SC in the records.

6. SC’s brother is FC, a boy aged

10. Both children live with a series of conditions and disabilities that are serious and debilitating, FC’s considerably more so. I will detail these shortly. The claimants are disabled children and both have Education, Health and Care Plans (‘EHCPs’), statutory plans reserved for children with complex special educational needs. They bring their claim through their mother and litigation friend LF, who has grave difficulties of her own. Their father is TF, and as may be readily understood, he has been worn down physically and emotionally trying his utmost to provide care and support for those he loves around him. The claimants are represented by Mr Broach KC and Ms Leydon of counsel.

7. The defendant is Bristol City Council. The children reside within the defendant’s area. The defendant is represented by Ms Hannett KC. The court is grateful to all counsel for their first-class assistance. I must also pay tribute to the parents who sat with respect, dignity and restraint during two days of court hearings where deeply personal and distressing details about the life of their family was discussed.

8. I should add that the interested party has not taken part in the proceedings. II. The impugned decision

9. The key decision taken by the defendant that is under challenge was taken on 15 December 2023 (“the impugned decision”). This requires explanation. On 7 August 2023 the defendant made each child subject to a child protection plan (“CPP”). On 17 November 2023 the defendant discontinued both plans. A mediation agreement between the claimants’ parents and the defendant dated 5 December 2023 was agreed, as relevant, in the following terms: “By 15 December 2023, the local authority will issue a written decision regarding the decision taken on 7 August 2023 to place SC and FC on CPPs. This decision will address the following: … b. Whether the local authority agrees that the child protection plans issued on 7 August 2023 were not lawful.”

10. By a decision dated 15 December 2023, the defendant confirmed its view that the CPPs were lawful. The decision was expressed in this way: “Bristol City council do not agree that the CP plan for SC and FC was unlawful. As set out below it was based on a s47 assessment, triggered by a multi-agency strategy. Multi-agency process was followed and the decision for threshold was based on a social work assessment under s47 which substantiated the significant harm.”

11. The claimants apply for judicial review of this decision. The defendant’s case is that the CPPs were needed because the defendant concluded after a statutory inquiry under section 47 of the Children Act 1989 (“the Act” or “the 1989 Act”) that the children had suffered significant harm and were likely to suffer significant harm. The claimants submit that the significant harm conclusion was irrational and unlawful. The risk to the children arose because of the defendant’s failure to provide support services. By virtue of section 2(4) of the Chronically Sick and Disabled Persons Act 1970 (“the CSDPA 1970”), the defendant has a duty to provide services to a disabled child to meet the child’s needs. The claimants submit that this has not happened.

12. Following important statutory guidance, the defendant then held a child protection conference (“CPC”) on 7 August 2023. The statutory guidance is the July 2018 version of Working Together to Safeguard Children: A guide to inter-agency working to safeguard and promote the welfare of children (“WT 2018”). This pivotal guidance did not appear out of the ether. It has undergone revision and reissue over the years as our understanding of child protection and welfare has developed. I provide a brief historical context in section IV of this judgment to give a necessary context to the rival arguments.

13. At trial, the claimants’ position was that if the court holds the defendant’s significant harm conclusion as not irrational, no challenge to the lawfulness of convening a protection conference would be made. As will be explained, the claimants had previously sought to separately challenge the CPC’s lawfulness, but that challenge is not maintained, nor credibly could be. The statutory guidance indicates that once the section 47 inquiry “substantiates” significant harm, a CPC should be held. This is what happened. However, it is the defendant’s next decision that is sharply contested: the making of a CPP for each child.

14. These CPPs were made following unanimous recommendation by the multi-agency professionals attending the conference. The prime concern was that the parents were failing to protect the children from significant harm. When the defendant reviewed this decision in December 2023, the defendant assigned the category of harm that the children were likely to suffer was “emotional abuse”. In this, the defendant followed the defendant’s local guidance, which says that the Chair “should” determine the category of harm. It is important to note that in WT 2018 there is no such requirement. WT 2018 marked a change from earlier versions of the statutory guidance that had similarly required the identification of a category of harm. That has gone, but Bristol continues the practice. I examine the significance of that shortly.

15. While the prime target of the judicial review is the December 2023 decision, the lawfulness of certain aspects of the defendant’s decision-making along the way is disputed. Particularly, the claimants submit that the defendant’s decision that the significant harm threshold was substantiated was irrational. Thus, while the decision to hold a CPC is not challenged as unlawful, the making of each CPP is said to be irrational, as was the December determination of category of harm as emotional abuse. The claimants’ case is that cause of the risks the children were facing came not from the parents. Their father puts it this way in his filed evidence: “The risk comes from a combination of the needs of [my wife], the children and the lack of adequate support to meet our needs.”

16. I later return in more detail to the complex constellation of needs in this case. For the moment, it suffices to summarise them. The mother LF has diagnoses of severe Attention Deficit Hyperactivity Disorder (“ADHD”), depression, anxiety and is on the autism assessment pathway. Most significantly for these purposes, she has a diagnosis of dissociative identity disorder (“DID”). DID is a chronic post-traumatic disorder which develops in response to overwhelming trauma in early childhood. LF is a survivor of childhood abuse. Her DID disorder has led to her developing multiple “alters” or identities. She relives her past trauma viscerally, sometimes screaming, including threatening to cut the throats of the children. Sometimes she is completely paralysed and unable to care for the children. It is vital to emphasise that no one suggests any of this is LF’s fault in the slightest.

17. The eldest child SC has diagnoses including Autism Spectrum Condition (“ASC”), ADHD, Sensory Processing Disorder, and generalised anxiety disorder with post-traumatic features. The youngest child FC has diagnoses of ASC, ADHD, Obsessive-Compulsive Disorder (“OCD”), Sensory Processing Disorder and a Severe Language Disorder associated with autism. The father TF is the family’s breadwinner, the mother having given up work in 2020 to look after the children. TF feels overwhelmed and is at risk of carer burn out.

18. With this complex range of needs, the parents have understandably and repeatedly asked for more support to care for the children and help with FC in particular. This led to LF in February 2023 requesting an updated assessment under section 17 of the Act, a “child in need assessment”. LF requested significantly more support with caring for FC. The defendant’s concerns led to a section 47 investigation to enquire into whether the children were suffering significant harm or likely to suffer it. That enquiry led to a CPC in August 2023 at which the challenged CPPs were made.

19. Having sketched a picture of the family, it is convenient here to extract the next sections of the impugned decision letter, now more intelligible with more context, as this illustrates key battlelines that follow (defendant’s original emphasis retained): “It is accepted that the threshold could have been made more explicit for the parents in the conference however the evidence for it was provided. In addition there appears to be a misunderstanding of the relationship between language of harm and emotional abuse in determining the category. The category of the plan was Emotional Abuse not Emotional Harm and is recorded as such in our record system for both children however emotional harm has been used in discussions with parents and in notes of the conference due to this being the basis for the category and the nature of the harm experienced by the children. Persistent emotional harm is Emotional Abuse – they are one and the same. […] Emotional abuse is described in Working Together 2018 as 'The persistent emotional maltreatment of a child such as to cause severe and persistent adverse effects on the child’s emotional development. It may involve conveying to a child that they are worthless or unloved, inadequate, or valued only insofar as they meet the needs of another person. It may include not giving the child opportunities to express their views, deliberately silencing them or ‘making fun’ of what they say or how they communicate. It may feature age or developmentally inappropriate expectations being imposed on children. These may include interactions that are beyond a child’s developmental capability, as well as overprotection and limitation of exploration and learning, or preventing the child participating in normal social interaction. It may involve seeing or hearing the ill-treatment of another. It may involve serious bullying (including cyber bullying), causing children frequently to feel frightened or in danger, or the exploitation or corruption of children. Some level of emotional abuse is involved in all types of maltreatment of a child, though it may occur alone. Harm is described in Working Together 2018 as 'A form of maltreatment of a child. Somebody may abuse or neglect a child by inflicting harm, or by failing to act to prevent harm. Harm can include ill treatment that is not physical as well as the impact of witnessing ill treatment of others. This can be particularly relevant, for example, in relation to the impact on children of all forms of domestic abuse. Children may be abused in a family or in an institutional or community setting by those known to them or, more rarely, by others. Abuse can take place wholly online, or technology may be used to facilitate offline abuse. Children may be abused by an adult or adults, or another child or children.' The Child Protection Plan was made on the basis of parents failing to act to prevent harm. […] I believe that attempts by professionals to try and recognise that it is not the parents' intentions to harm their children and thereby cause emotional abuse through failure to protect, in order to aid engagement and recognise the barriers and complicating factors have sadly done the opposite and caused greater confusion. However not intending to cause Emotional Abuse through failure to protect a child from emotional harm does not mitigate the harm or likely significant harm that a child is experiencing and may continue to experience. The Stage 1 complaint response clearly described how the emotional abuse and emotional harm are interlinked and have the same meaning. I appreciate this appears to have added confusion for the parents with a conflation of the type of harm and threshold/degree of harm and these two aspects could have been more clearly separate. […] both children were likely to suffer significant harm through failure to protect. That the parents love their children does not mitigate emotional abuse having occurred and the likelihood of further harm due to failure to protect their children.”

20. I add an extract of the response letter written to the parents following their complaint about the conduct and outcome of the key protection conference on 7 August 2023. The conference chair Dawn Andrews wrote on 19 September 2023: “No one has suggested that you would deliberately harm your children but that there were worries that due to your family situation, the worry is that unintentional emotional harm could be being experienced by SC and FC.”

21. Indeed, following a conference to review the protection plans held in November 2023, the defendant decided to end the plans. In the following two years, the children have not been made subject to further protection plans. Having provided now what is admittedly no more than a thumbnail overview, I turn to how permission was granted, the grounds before the court and the particularised sub-issues arising from them. III. Permission, grounds, issues

22. On 24 May 2024, His Honour Judge Keyser KC sitting as a Judge of the High Court refused permission on the papers. On 19 August 2024, His Honour Judge Jarman KC, sitting in a similar capacity, refused permission at an oral renewal hearing. Following an appeal by the claimants to the Court of Appeal, on 6 December 2024, without an oral hearing, Falk LJ granted permission to apply for judicial review and remitted the claim to the Administrative Court rather than the Court of Appeal hearing the appeal.

23. Two grounds are before this court: Ground 1: that the Decision is irrational Ground 2: that the Decision resulted in a breach of the claimants’ rights under article 8 of the European Convention on Human Rights (“ECHR”)

24. During the course of oral submissions, the issues contained within each ground were refined further. Therefore, the issues for determination by the court are as follows: Ground 1 • Issue 1: whether the decision that the children are suffering or are likely to suffer significant harm is irrational • Issue 2: whether the making of CPPs is irrational • Issue 3: whether the determination of the harm category as “emotional abuse” is irrational Ground 2 • Issue 4: whether the making of CPPs is the least intrusive measure necessary to achieve the legitimate aim of protecting the children from significant harm • Issue 5: whether a fair balance has been struck between the severity of the infringement of Convention rights and the importance of the legitimate aim

25. I make some preliminary observations to focus the analysis: (1) In rationality terms, the parties agree that the CPPs stand or fall together. There is no material difference between the substance of the decision-making in respect of each child. (2) Equally, in respect of ECHR article 8, there is no material distinction between the two children’s cases. (3) The parties also agree that the issue of relief should await the court’s decision on the two grounds. Therefore, the question of relief, about which a number of permutations may arise, was not addressed in oral submissions and is not dealt with in this judgment.

26. The claimants submit that the claim raises important questions about the lawfulness of placing disabled children on CPPs, when the risk of significant harm arises not from culpable acts or omissions by their parents, but the local authority’s delay in providing the services to the children as children in need.

27. The defendant disputes this characterisation. It submits that both grounds are misconceived and each of the five issues should be decided in its favour. Therefore, the claim should be dismissed and no question of relief arises. IV. Evolution of the Working Together guidance

28. I have found it important to understand where the vital statutory guidance in this case comes from and why it has evolved as it has. A historical context is provided by the 2006 version of Working Together (“WT 2006”). In the Executive Summary it says at (ix): “The statutory inquiry into the death of Victoria Climbié (2003), and the first joint Chief Inspectors’ report on safeguarding children (2002) highlighted the lack of priority status given to safeguarding. The Government response to these findings included the Green Paper Every Child Matters, and the provisions, in the Children Act 2004.”

29. WT 2006 continues at para 1.6: “1.6 Shortcomings when working to safeguard and promote children’s welfare were brought into the spotlight once again with the death of Victoria Climbié and the subsequent Inquiry. The Inquiry revealed themes identified by past inquiries which resulted in a failure to intervene early enough. These included: poor co-ordination; a failure to share information; the absence of anyone with a strong sense of accountability; and frontline workers trying to cope with staff vacancies, poor management and a lack of effective training (Cm 5860 p.5).”

30. The concern about poor coordination and the failure to share information resulted in strategies for more effective multi-agency work. The Climbié Inquiry found that, as WT 2006 says at para 1.7, “support services for children and families cannot be separated from services designed to investigate and protect children from deliberate harm.” The 2006 guidance then states at paras 1.13-14: “1.13 Effective measures to safeguard children are those which also promote their welfare. They should not be seen in isolation from the wider range of support and services already provided and available to meet the needs of children and families: • enquiries under section 47 of the Children Act 1989 may reveal significant unmet needs for support and services among children and families … 1.14 Safeguarding and promoting the welfare of children – and in particular protecting them from significant harm – depends upon effective joint working between agencies and professionals that have different roles and expertise.”

31. Therefore, the statutory guidance applicable in this case has developed from concerns about the lack of coordination between agencies and the failure to share information that creates risks about ineffective safeguarding. Further, the governmental response recognises the confluence of safeguarding and welfare concerns and how an assessment of one may reveal concerns about the other. These themes, prominent from the inception of the evolution of the statutory guidance, have relevance in this case. GROUND 1

32. Ground 1 has been divided into three issues. Viewed globally, the claimants submit that Ground 1 raises questions (as characterised by the claimants) about “whether a local authority can rationally conclude that emotional abuse (as defined in WT 2018) has been committed unintentionally, and/or by omission, by parents of disabled children who are unable alone (that is, without statutory support) to provide an adequate level of care to those children, as a result of the complexity of the children’s needs and/or the parents’ own needs”. The defendant submits that this framing by the claimants discloses fundamental errors in the proper approach to these questions. V: Issue 1 (significant harm)

33. At the CPC on 7 August 2023, the defendant concluded that the significant harm concerns were substantiated. The safety scale used by the defendant is as follows: “Safety scale: Where 0 = Danger, and 10 = Safety.”

34. As at the CPC, the scaling had increased in concern from 5 (earlier in 2023) to 2, and thus moving significantly away from safety and towards danger. The claimants’ case is that “it was unlawful to conclude that there was significant harm” as significant harm means abuse or neglect (which is said to be the “shorthand” for significant harm) and that is what the defendant should have looked for “as a starting-point”. It is absent. Therefore, the defendant’s decision was irrational.

35. The defendant’s case is the evidence before the conference on 7 August fully justified the conclusion that the significant harm concerns were substantiated. Therefore, the conclusion was reasonable and lawful. Discussion

36. I subdivide the discussion under six broad headings before providing the court’s conclusion.

37. First, I consider the picture of risk holistically. I received no distinct arguments from either party that distinguished between the making of plans in one of the claimants’ cases rather than the other. However, I emphasise that I have considered each of the claimants separately in asking myself whether the making of a CPP in their case is reasonable and rational.

38. Second, the test for this public law challenge. This is a rationality challenge. Both parties recognise that this presents the claimants with a high bar. However, it is not unreachable. There seems to me to be some force in the description by Hasan Dindjer that the true nature of reasonableness review in public law has occasionally been “obscured behind vivid but uninformative descriptions” (“What Makes an Administrative Decision Unreasonable?”, (2021) 84(2) Modern Law Review 265–296, 265). Of the various reformulations of the Wednesbury principle, it is unnecessary to go much farther than whether the decision lies outside the “range of reasonable decisions open to a decision-maker” (Boddington v British Transport Police [1999] 2 AC 143, 175, per Lord Steyn). I add that I have had cited to me and am grateful for the judgment of Chamberlain J in R (KP) v SSHD [2025] EWHC 370 (Admin). At paras 55 to 57, he said: “55. In most contexts, rationality is the standard by which the common law measures the conduct of a public decision-maker where there has been no infringement of a legal right, no misdirection of law and no procedural unfairness. It encompasses both the process of reasoning by which a decision is reached (sometimes referred to as ‘process rationality’) and the outcome (‘outcome rationality’): see e.g. R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin), [2019] 1 WLR 1649, [98] (Leggatt LJ and Carr J).

56. Process rationality includes the requirement that the decision maker must have regard to all mandatorily relevant considerations and no irrelevant ones, but is not limited to that. In addition, the process of reasoning should contain no logical error or critical gap. This is the type of irrationality Sedley J was describing when he spoke of a decision that ‘does not add up – in which, in other words, there is an error of reasoning which robs the decision of logic’: R v Parliamentary Commissioner for Administration ex p. Balchin [1998] 1 PLR 1, [13]. In similar vein, Saini J said that the court should ask, ‘does the conclusion follow from the evidence or is there an unexplained evidential gap or leap in reasoning which fails to justify the conclusion?’: R (Wells) v Parole Board [2019] EWHC 2710 (Admin), at [33].

57. Outcome rationality, on the other hand, is concerned with whether – even where the process of reasoning leading to the challenged decision is not materially flawed – the outcome is ‘so unreasonable that no reasonable authority could ever have come to it’ (Associated Wednesbury Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 233-4 ) or, in simpler and less question-begging terms, outside the ‘range of reasonable decisions open to a decision-maker’ (Boddington v British Transport Police [1999] 2 AC 143, 175).”

39. Third, the claimants submit that given the consequences of the defendant’s decisions for the children and their parents, the court should adopt an “anxious scrutiny” approach, commensurate with the gravity of any adverse effects on those affected by the decision. In R (King) v Secretary of State for Justice [2015] UKSC 54, Lord Reed explained at para 126: “This court has explained that the test of unreasonableness has to be applied with sensitivity to the context, including the nature of any interests engaged and the gravity of any adverse effects on those interests: see, for example, Pham v Secretary of State for the Home Department (Open Society Justice Initiative intervening) [2015] UKSC 19; [2015] 1 WLR 1591 [“Pham”].”

40. On Pham, see the further helpful observations at paras 60 (Lord Carnwath) and 112 and 114 (Lord Reed). I agree with the claimants that this should be the court’s approach to the scrutiny of all the decisions here challenged as irrational. The court’s supervisory role is to scrutinise whether the defendant’s decisions fall with the ambit of decisions reasonably open to it. A different standard applies for the Convention rights challenge. I come to that in Issues 4 and

5.

41. Fourth, the claimants’ stance. At the start of their submissions, the claimants submitted that even if there was significant harm, “it was unlawful to hold a CPC”. As the arguments developed before me, the claimants resiled from that position. They were right to. It is unsustainable. Once significant harm concerns are substantiated, it makes evident and obvious sense to convene a CPC to bring all the relevant professionals together to formulate the best way to address the harm identified in the section 47 inquiry. I mention this important change of position by the claimants to exemplify the difficulty of their challenge. Their challenge began as a very wide root and branch attack on the decisions the defendant had made. Ultimately, the claimants recognised that it was impossible to credibly contest that following significant harm substantiation a CPC should be held.

42. Fifth, I must emphasise that nothing in this should be interpreted as a criticism of the parents and LF in particular. The severity of her condition can be understood in her own words from para 28 of her witness statement: “It may also be useful to explain at the outset about my mental health conditions. I am diagnosed with Dissociative Identity Disorder (DID) (diagnosed on 12 February 2023), ADHD (diagnosed on 11 August 2020), anxiety and depression (diagnosed on 7 February 2007), and am on the Autism assessment pathway. DID is a chronic post-traumatic disorder that develops in response to overwhelming trauma in early childhood, and results in the non-integration of the personality. This means I do not have a cohesive sense of self but am instead made up of separate identity states – ‘parts’ – that influence or take over my thoughts and behaviour at different times, I experience functional neurological symptoms as a result of dissociation, including episodes of paralysis where I am unable to move from the waist down, and on occasion any part of my body, for an extended period of time – on average between two to three hours. These episodes occur frequently (up to several times a day) during times of stress, when parts of myself feel scared, threatened or emotionally overwhelmed; when things are more stable I may only experience paralysis once or twice a month. I am usually lucid during these episodes but can struggle to process what is happening around me, speak and construct coherent sentences due to dissociation and internal distress. Other symptoms of my condition include disruptions in memory and associated confusion, extreme avoidance of potentially stressful or triggering situations, detachment from reality, delusions and trauma flashbacks. During flashbacks I relive elements of past trauma, which can include intense emotional distress and physically feeling or vocalising things that were done or said to me. My symptoms are closely associated with stress and, as I explain below, have been significantly exacerbated by the difficulties we have faced trying to obtain adequate support from the Council to meet our family’s needs.”

43. Understanding questions of “attribution” is vital to a proper appreciation of this case. There are subtle and vital distinctions. In Part IV proceedings under the Act, the statutory threshold for the making of care or supervision orders is as follows: “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.”

44. It is notable that the harm or likelihood of harm must be “attributable” to the care provided by the caregiver (usually but not exclusively the parent) or lack of it. This should be contrasted with the test under section 47: “47 Local authority’s duty to investigate. (1) Where a local authority— (a) are informed that a child who lives, or is found, in their area— (i) is the subject of an emergency protection order; or (ii) is in police protection; … (iii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b) have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.”

45. This distinction has importance for the rival arguments. Section 31 falls under Part IV, entitled “Care and Supervision”. Part IV sets out the tests and procedures for care and supervision orders. Section 47 by contrast falls within Part V, labelled “Protection of Children”. Therefore, the focus in Part V is the significant harm the child is suffering or is likely to suffer. It is not concerned with attribution as section 31 is. Part V is a mechanism for the better protection of children. By way of illustration, for an emergency protection order (“EPO”) under section 44 of Part V (as mentioned in section 47), there is no requirement of attribution of risk to the caregiver. Under an EPO, a child may be removed to different accommodation irrespective of the sources of harm or risk in order to protect the child from the risk. The consequence of all this is that for a section 47 conclusion about significant harm under Part V, the inquiring local authority must provide a clear snapshot of the harm the child has suffered or is likely to suffer. It is not about attributing the harm, let alone pointing the finger of blame. Properly conducted, a section 47 inquiry is an objective harm assessment, a harm profile revealed by the statutory enquiry.

46. Many of the submissions I received on behalf of the claimants centred on the cause or attribution of risk. These submissions were grounded in the evidence provided by the parents. For example, LF said at para 12 of her witness statement: “[TF] and I have been consistently requesting additional support from the Council since 2021 to help us meet FC and SC’s needs. Each of the risks identified through the safeguarding and Child Protection processes were capable of being mitigated through the provision of additional care and support from the Council. Indeed the provision of care and support by the Council was the only way to mitigate those risks.”

47. Such evidence led to the submission that “the neglect is by the council not the family”. To my mind, accurate identification of the causes of risk of harm are of prime importance to answer a different question: what needs to be done, as section 47 states, “to safeguard or promote the child’s welfare”. Such identification of causes little alters the level of risk of harm the snapshot produces in a section 47 investigation. It is to this question that I turn.

48. The defendant’s concerns developed as it received a series of emails from LF. In an email to the defendant on 5 February 2023, LF stated: “… when I am overwhelmed I experience dissociative paralysis when I literally cannot move my body. This has happened several times while I have been in sole care of the children: on one occasion my son who has no sense of danger let himself out of the house and onto the street and I was unable to move to come and get him in”.

49. In LF’s email to the defendant dated 12 February 2023, she states: “First & foremost I would like services to acknowledge the fact that I have reported repeatedly now that I experience frequent episodes of psychogenic/dissociative paralysis when I cannot move, even when required to, and this is a safeguarding risk when I am home alone with the children, particularly FC who has no real sense of danger. I am confused as to why DCS don't appear overly concerned about what to me seems like a very real risk. I wonder if a more formal assessment were to take place the risk might be taken more seriously. Also if god forbid if anything bad were to happen due to my MH [mental health] challenges it would at least be on record that I tried to get help.”

50. She also said on 12 February 2023: “… My mental health has deteriorated (as predicted by the social worker in our S17). I've received a diagnosis of dissociative identity disorder and am now under NHS care with psychiatry, psychotherapy and a mental health worker support. I'm unable to reliably care for the children and as I have reported several times now they are at risk of harm when alone in my care. My mental health worker has raised a safeguarding concern about this.”

51. LF wrote to the defendant on 11 April 2023: “As a parent this is a horrible thing to have to keep having to repeat but I am sincerely concerned about the safety of the children when they are in my care, and in particular FC because of his impulsivity, need for constant 1-1 and limited speech + understanding. We have had a couple of close calls recently, eg FC was nearly hit by a car on Sunday because he ran into a busy street – I should have been holding his hand but wasn't because I was dissociating after a flashback and not thinking clearly. Last week FC climbed out of his bedroom window when I was in a paralysis. These incidents are tremendously scary and are only serving to make my mental health worse. In addition my struggles will be having a psychological impact on the children. On Easter Sunday, a few hours before FC ran into the road I had a two hour dissociative paralysis episode which included a flashback where I recounted details of a trauma in a strange voice and then screamed in terror for a minute straight. This was extremely distressing for the adults around me to witness; god knows what effect it had on the kids. Additionally, at one point in this episode FC jumped on me and one of my alters told him they would "cut his face". I immediately retracted this statement but this is not the only time an alter has made threats to FC or handled him roughly. I have also been unkind to SC, as well as being erratic and confusing around her, to the point I have had to explain to her what DID is, and what causes it, which is a heavy load for a 10 year old to bear. In addition I regularly have to call on her to support with me with my care, for example by physically moving my legs when I am paralysed, or offering emotional support when one of my child alters is anxious.”

52. The defendant’s response came on 17 April 2023 from Kate Markley, who wrote to LF on its behalf: “… I am aware that your allocated social worker, Becky, visited you on the 12 April 2023, along with the direct payment worker Sain, after receiving your email. I understand Becky talked through your email, and you and your husband both agreed an immediate safety plan so you are not alone with your children. I understand Becky explained the child protection process and you both agreed that convening a child protection conference would be a good idea as you are very worried. The child protection conference will be chaired by an independent person. At the child protection conference the professionals involved from children’s services, the mental health team, adult care professionals, and additionally all agencies involved in your children lives, will be present to understand what life is like for you and the children at home and how they can support you. You and your husband will be key participants at the meeting and will be asked for your views and to contribute to creating a plan. The plan can then be reviewed each month, which will have actions for professionals and yourself.”

53. It is clear from this that the parents did agree to a CPC. As it was first advanced to me, the submission was that the parents’ agreement to the conference is “not fatal to the claim” because it is always possible “to agree to something that is not lawful”. Two observations need to be made about this. First, and as noted, that the claimants later withdrew the submission that holding a CPC was unlawful. Second, the agreement of the parents to the conference is important: it is clear recognition by them of the real risks the children were being exposed to. Once more, for the challenge to the section 47 threshold decision, it is not the source of the risk that is important but the whether the significant harm concerns have been substantiated by the defendant. It is necessary to turn to the key document relied on by the defendant, the Child and Family Assessment (“C&F”, also referred to in argument as the “CIN” (Child in Need) assessment) completed on 20 April 2023. It was undertaken by Rebecca Smith, social worker in the defendant’s Disabled Children’s Specialist Service.

54. The immediate context is that on 19 April 2023 there was a strategy meeting conducted online by Teams and chaired by Linda Drew, the social work team manager. Various practitioners provided their assessment of the current situation. The minutes record that there had been incidents where FC was out of control and throwing furniture in the night and SC was “terrified and crying”. Ms Smith said that “matters had escalated”. She added, “I think the children are at significant risk of harm in the care of LF.” One of the difficulties is that FC’s behaviours “trigger” LF. The sequence is that when LF is under stress, there is a greater chance of an episode and paralysis or emergence of an alter or flashback to her childhood trauma, where she may distress the children or has no ability to care for them. Ms Smith said SC was “isolated in her bedroom a lot … SC is withdrawn and it is very disconnected in the home.” There was a general consensus on 19 April that the threshold for section 47 enquiries had been met. It should be recalled that this is not the same as a conclusion of significant harm, but that there were reasonable grounds to suspect significant harm.

55. In her CIN assessment completed on the next day, 20 April 2023, Ms Smith: • Described LF’s concerns about the safety of the children when in her care given her dissociative states or paralysis. This concern was particularly acute in relation to FC given his impulsivity, lack of danger awareness and his need for 1 to 1 supervision; • Set out LF’s statement that one of her alters had threatened to harm FC; • Recorded LF and TF’s acknowledgement that LF should not be alone with the children and noted the agreement of a safety plan to ensure that TF or a member of the family’s extended network would be present with her and the children. This was said to be necessary to ensure that “the children are not placed at direct or indirect risk of harm”; • Set out the social worker’s assessment of her concern as to the safety of FC and SC in the family home as being 2 (on a scale of 0 to 10 where 10 indicates no concerns); • Described the support sought by the family; • Recommended that a strategy meeting should be held to consider whether the threshold had been met for section 47 enquiries.

56. A record of the outcome of the section 47 enquiries was made by social worker Charlotte Pratt on 4 May 2023. She noted the reason for undertaking the section 47 enquiries as follows: “Initially a section 17 assessment was completed by previous social worker (Rebecca Smith). Through this process, parents and professionals raised concerns with regards to the safety of predominantly FC. This is due to a combination of FC's needs alongside LF's difficulties. For example, FC has impulsive behaviour, with limited danger awareness. LF has been managing Dissociative Identity Disorder, however there are times when this difficulty causes her to be physically paralysed from the waste [sic] down. In these moments, FC is at higher risk as LF is unable to keep him safe from harming himself. There were also concerns with regards to the impact of the family's circumstances on their eldest child SC.”

57. The CPC was held on 7 August 2023. There were four material changes in circumstances from what was found in the section 47 enquiry dated 12 May 2023. LF’s social worker Megan Prothero completed a report (dated 4 August 2023) for the conference. By that point, the claimants’ solicitors Rook Irwin Sweeney had sent the defendant a Pre-action Protocol (“PAP”) letter dated 26 June 2023. Ms Pratt provided an updated social worker’s report.

58. Rebecca Smith the previous social worker states in the report: “I have scaled a 2 because I am very concerned about how LF's current mental health is impacting on her care of her SC and FC. Both LF and [TF] have been open with professionals about their concerns around LF caring for the children. LF has described several incidents where FC was placed at risk of harm when solely in her care, due to LF experiencing a dissociative episode and not being able to be physically or emotionally present for the children. LF and TF have also described several times where LF experienced dissociative episodes, which would have been frightening for the children to witness. SC spends the majority of her time alone in her room and has very limited social interaction, I am concerned about the emotional impact the situation is having on SC.”

59. In the section on “What are they worried about?”, Ms Pratt records: “However, they have stated that TF, is reaching significant burn out and his protective parenting is at risk due to this. TF has been prescribed sertraline and signposted to therapy by the GP since the previous s.47 assessment. TF has never needed MH input before. The deterioration in TF's mental health has been significant enough for one of his employers giving him paid compassionate leave. LF's Mental health and daily functioning has deteriorated since the last s47, due to the stress the previous section 47 enquiries brought to her DID system, including feeling disappointed with the lack of support from DCS following this, and the legal action that has had to come about as a result. Many aspects of this process have paralleled aspects of her trauma, and thus has been retraumatising. Parents have shared that since the first s.47 FC has thrown scissors at one next door neighbour from the platform in their garden, and kicked the other neighbour in the street. LF says that she reported this to Helen during her visit to the family on 24/07/2023. FC has also pushed over a toddler whilst on a Respite Explorers session. Since Wednesday's s.47 (26/07/2023) he has screamed in the face of and kicked out at a 2-year-old girl in the park whilst under supervision of TF and Clement, and engaged in risky behaviour with animals. Parents have said that all of this shows that even without LF's own mental health needs, that it is incredibly difficult to look after FC with only one parent present – he requires very close supervision at all times which is very hard to provide 24 hours a day when you have 2 children.”

60. Like Ms Smith, Ms Pratt scaled the risk at 2, which is a material increase in risk level from the scaling of 5 at the previous assessment. Ms Pratt explained: “I have scaled at 2 because although parents are trying their best to protect their children, they are clearly telling professionals that this is not sustainable. This means that the children, particularly FC, is at risk of significant physical harm, if neither parent is available to protect him from his impulsive behaviour. Additionally, the impact on SC's emotional well-being of not having adequate quality time with her parents is a concern. Not only this, but SC also provides a caring role to LF when TF is unable to. This is a significant emotional task at such a young age. I have also not scaled higher as, although TF can be a protective factor, he is reaching burnout and is expressing that he cannot continue his caring role. TF has clearly expressed that he cannot continue his caring role at its current level without additional support, as it is neither financially nor mentally sustainable. Without the support of TF, neither children's needs, or LF's needs would be safely cared for. I have not scaled lower as the family are being support by Medgen agency staff twice a week throughout the summer holidays. This means that if/when FC has built a relationship with the worker, TF may be able to have a break and some protected time with SC. I have also not scaled lower as the family are being supported in the summer by the Brandon Trust (4hrs per week for SC), Respite Explorers (3 x 5-hr sessions for FC), and SC is continuing weekly online sessions with her school's psychotherapist.”

61. Under the “Harm” section, Ms Pratt concluded: “These concerns have remained the same since the previous s.47 dated 12/05/2023: The family have been known to children's social care in relation to their disabilities. Children's services are aware of several incidents in which SC and FC have been placed at direct risk of harm. There have been occasions where FC has stepped out into the road in front of moving traffic. In this incident TF and LF have explained that FC was fortunate enough that the driver noticed and was able to slow down in time. LF was unable to stop FC in this instance due to having an episode of paralysis. TF was present but caring for SC which limited his ability to notice and react to FC. Despite parents providing 1:1 care for their children the risk to FC was real in this incident. There is also a risk present if the children, FC in particular, was to be in the sole care of LF. This is due to LF's condition sometimes creating paralysis when she is experiencing a dissociative episode. Parents have highlighted that due to FC's needs and behaviour (hitting out/kicking SC and his parents) SC has had significantly less time and attention from them. They are concerned about the impact of this on SC wellbeing. LF has explained that in the past she has hit back at FC after he has repeatedly hit out at her. This has been through exhaustion. Parents have requested on 01/08/2023 that the following is included: FC has been physically aggressive towards SC in the past and as such she is instinctively fearful around him. When FC is home she prefers to stay in her room, ideally with the door locked. If LF is in paralysis and SC has not locked her door, FC can hit out at her. … – At present LF's mental health is unstable, this is not unusual given how recently she has been diagnosed, but will impact on the care she is able to provide for the children. Updated July 2023: Parents having clearly expressed to social care that using their network of friends does not provide consistent or sustainable safety for the children. LF and TF call on their friends and have been doing so as an emergency measure. However, this cannot be a long term plan which means that there would likely be times that LF would be in the care of the children alone. Adult social care have stated their support cannot provide safety for FC and SC. TF is no longer able to provide the high level of care he has been doing. TF is almost totally burned out and has recently been prescribed anti-depressant medication due to the toll that his caring role has taken on his emotional well-being. TF does not feel that he can continue providing the care he has been which reduces the protective element he brings to the children. LF has an ADHD diagnosis (which severely impacts her daily functioning). Danger/Worry statements: Children's services are worried that SC and FC may be placed at risk of significant harm should they be cared for solely by their mother LF. LF has recently been diagnosed with dissociative identity disorder and as such this is impacting on her ability to provide safe and appropriate care for the children.” Heads of harm

62. Sixth, it is convenient to set out the concerns the defendant harboured about the children under heads of harm available to the defendant at the CPC, while never forgetting that it is the overall picture that matters. By way of introduction, the outcome letter from the CPC Chair Dawn Andrews to the parents (undated) states: “ … you understand the worries the professionals have, and have been open and honest about what happens when you, LF have paralysis and disassociation; at those times FC does not understand the dangers and is at risk. I am worried about you LF, and your disassociation episodes, linked to the DID and also your complex needs including ADHD. I note you are also waiting for an ASC assessment and you are accessing support in relation to a neurological disorder too, and how this can impact you, resulting in incidents where you are having split personalities and paralysis. Although this is out of your control, and we have no concerns about your parenting outside of these episodes, it has been highlighted by you today and to the SW Unit, you are extremely concerned about your ability to safely care for your children, and the resulting harm that may happen during these episodes, this therefore brings us to threshold. This is compounded by the impact this has on SC and her emotional wellbeing and understanding of self, as well as the special needs of both SC and FC.”

63. In the heads of harm below, there is reference to the PAP letter from the claimants’ solicitors dated 26 June 2023. The defendant replied to the letter on 13 July 2023. In the response, the defendant said: “the content of your letter paints a significantly more severe and high-risk picture than the social worker had previously been led to believe when completing the section 47 review report.”

64. The claimants submit that there was nothing in the PAP letter that the defendant should not have known. It is not necessary to adjudicate on this dispute. All agree that the content of the PAP letter insofar as it details risk the children were exposed to is accurate and relevant. The heads of harm can be subdivided as follows: Evidence as to the risk of FC coming to harm when unsupervised • The dissociative paralysis detailed in LF’s email to the defendant on 5 February (see above); • The account from LF about FC climbing out of the window detailed in her email to the defendant on 11 April 2024; • The June 2023 PAP Letter further stated: “Whilst their house now has a top lock on the front door to try and prevent him escaping, [FC] can drag a chair down the corridor to climb up and undo it. With no front garden to their house, which opens straight onto the street located near a very busy main road, there is a clear safety risk inherent in every escape attempt”; • The PAP letter states that the family lives near to a “very busy main road” and accordingly, “there is a clear risk inherent in every escape attempt”. The PAP letter continues that “FC has run out into the road on more than one occasion”; • The PAP letter states that “FC has also climbed over the back wall of their house into the public cemetery behind, and LF had to leave their house and run around the cemetery in order to find him”; • The June 2023 PAP Letter described the risk of FC having accidents within the home itself: “… last Thursday [LF] entered the room to find [FC] balancing with one foot on the dining table and another on a folding chair, in an attempt to touch the ceiling. Subsequently, the chair collapsed and broke under him, resulting in him falling and hitting himself quite hard”. This example was not isolated as LF said that FC “had a number of accidents within the home from doing risky things”; • The PAP letter of June 2023 also states that “There are times when her DID causes LF to become physically paralysed from the waist down, leaving her unable to care for her children. In those moments, FC is at high risk as LF is unable to keep him safe from harming himself”; • The PAP letter provides an example of what happens when she is paralysed: “there are examples where FC has stepped out into the road to touch the wheels of a moving car, and he has also been in front of moving traffic when LF was unable to stop him due to having an episode of paralysis.” Evidence as to LF’s behaviour when suffering a dissociative state or paralysis • LF’s email dated 11 April 2023 describing the dissociative episode of trauma and screaming. • Some of LF’s dissociated identities (alters) do not identify as parents and one has threatened FC with violence on two occasions. • Some of her alters are children and do not have the practical skills to parent, and some of these children are distressed when they come out. • LF’s daughter SC has had to care for a child part of LF on several occasions recently, at one point spoon-feeding her breakfast as she could not move. • LF experiences what the PAP describes as “derealisation/depersonalisation”. It states that she experiences “detachment from reality, her family, home situation, thus leaving LF unable to properly engage with the children or assess safety”. • LF experiences trauma flashbacks. The PAP letter states “these can be terrifying to witness, as LF will find herself screaming, writhing in pain, talking in many voices, and repeating aspects of her trauma e.g., saying ‘I'll cut your throat’.” • While previously she used to only experience flashbacks to her childhood trauma when the children were not around, the PAP states that “this changed when the children were both at home full time, and she has now had [flashbacks] in front of the children on weekends and at school holidays.” • LF has to explain to SC what DID is. • The PAP letter states that FC can become “scared/confused when LF is in these states”. This is in the context, as the letter continues, that “FC needs a high level of supervision to keep him safe.” • The PAP letter states that “LF’s paralysis has increased over the last 6-7 months.” • In similar vein, in her email to the defendant on 11 June 2023, LF stated: “I have experienced a least one paralysis episode every day this week and have been feeling mentally unstable. My poor health impacts my whole family: SC has been having to care for me when I've been dissociative as TF is busy with FC, yesterday she spoon fed me my breakfast because I couldn't move my body below the neck. TF is still exhausted by his day to day caring duties + struggling to keep up with work, worrying about me is adding to his stress. I feel dreaTFul [sic] about being a burden to my family and have been experiencing harmful intrusive thoughts. I'm afraid I will do something extreme if our situation doesn't improve soon.” Evidence about FC’s behaviour to SC • In the record of outcome of section 47 enquiries, SC told the social worker that FC “does get stressed sometimes and can hit [SC].” • The June 2023 PAP Letter referred to FC having hit SC and that SC is cautious around him. The PAP letter states, “FC will hit out at others repeatedly. This can be emotionally and physically draining for TF (and the rest of the family). FC has hit SC and she is cautious around him.” This follows from the social care assessment which states, “LF said SC is “terrified” of FC and won’t spend time with him as he hits and slaps her.” • FC’s EHCP states, “FC can get very overwhelmed with something and is unable to explain this which leads to emotional (and frequently physical) outbursts.” • It is convenient to add here that LF had reported that when FC hits out at her, she has hit back at him, although her hitting back at him is “through exhaustion”. Evidence about the impact of family life on SC • The June 2023 PAP Letter stated that SC has “had to care for a child part of [LF] on several occasions recently, at one point spoon-feeding her breakfast as she could not move.” • That when FC is home, SC “prefers to stay in her room, ideally with the door locked. If LF is in paralysis and SC has not locked her door, FC can hit out at her.” The parents’ own assessment of risk and consequences • TF and LF themselves accepted that the children were at risk of harm on occasions when LF was unwell. • In the record of the section 47 outcome it is stated that SC receives “significantly less time and attention from [their] parents” and they are “concerned about the impact of this on [SC’s] well-being”. • The strategy meeting on 18 July 2023 recorded that TF was “not managing” and that the family was “in crisis”. Overview from PAP letter • The PAP letter records that “the family is, once again, rapidly reaching crisis point.” It continues that “There are times when her DID causes LF to become physically paralysed from the waist down, leaving her unable to care for her children. In those moments, FC is at high risk as LF is unable to keep him safe from harming himself.” Conclusion: Issue 1

65. First, I was not specifically addressed on the meaning of “significant” in the term significant harm. Section 31 of the Act defines “significant” for the purposes of that section in this way at section 31(10): “Where the question of whether harm suffered by a child is significant turns on the child’s health or development, his health or development shall be compared with that which could reasonably be expected of a similar child.”

66. This is a commonly applied definition of significant. One looks widely at the nature of the harm, its duration, degree and extent, its frequency. This is my approach. When one compares the life experiences of the claimant-children living with LF and her DID condition with the life of comparator child, the defendant was justified in having serious concerns about the physical and emotional harm the children were at risk of suffering in future. It seems to me that in light of the catalogue of incidents and risks that have been identified, it was entirely reasonable for the defendant to conclude that the harm the children had suffered was significant and/or in future was likely to be significant. LF, whom no one disputes is a loving and concerned mother, senses the concern. She stated in her email to the defendant dated 11 April 2023 that “my struggles will be having a psychological impact on the children.” This must be right. Indeed, in the section 17 assessment completed on 20 April 2023, just over a week after her email, the defendant concluded: “Childrens [sic] services are worried that SC and FC may be placed at risk of significant harm should they be cared for solely by their mother LF. LF has recently been diagnosed with dissociative identity disorder and as such this is impacting on her ability to provide safe and appropriate care for the children.”

67. Second, I find the emergent picture very clear. I judge that it was reasonably open to the defendant to conclude on all the evidence that the significant harm concerns that triggered the section 47 investigation were substantiated as at the CPC on 7 August 2023. This did not happen out of the blue. The defendant is right to submit that LF’s email of 11 April revealed a “significant escalation” of risk. LF had some weeks before voiced that she was “sincerely concerned about the safety of the children when in her care”. She would know. Further, at the strategy meeting following it on 19 April, Ms Smith said with obvious justification “it is not clear how long the safety plan can last”. On the day after the strategy meeting, Ms Smith closed the section 17 assessment and Ms Pratt began the section 47 assessment, which she concluded on 4 May. LF’s overall presentation deteriorated from April to the August CPC. It is important to note that the safety scaling appropriately reflected the markedly worsened position. I have not received any submission to challenge the change of scaling from 5 to

2. A principal flaw in the claimants’ submission is a confusion between the level of harm and its source. Source of harm is a matter of acute importance in deciding how to meet any risk facing a child, but is not the same as whether significant harm concerns were substantiated by the defendant – and in public law rationality terms, reasonably so. The conclusion that the children had suffered and were likely to suffer significant harm was unarguably reasonably open to the defendant on the evidence before the CPC on 7 August 2023. It is not for this court to substitute its view. However, the argument that no reasonable local authority could have concluded that significant harm concerns were substantiated as of the CPC on 7 August 2023 is misconceived. On all the available evidence, it was reasonable to conclude that the children were likely to suffer significant harm in future. Something needed to be done. The question is whether making the children subject to CPPs was a reasonable step. That is the focus of the next issue. On Issue 1, however, the claimants fall well short of reaching the demanding irrationality standard.

68. Therefore, the significant harm rationality challenge fails. VI. Issue 2 (child protection plans) Submissions

69. The claimants submit that it was unlawful to make the CPPs. Instead, the defendant should have put in place adequate services to support the complex needs of the whole family. It did not. If it had, CPPs would have been avoided. In any event, as at the CPC, there was still the opportunity to provide appropriate services and not make the children subject of protection plans. To take the CPP route was irrational. Further, the plans should specify what could be achieved through the child protection route that could not be achieved through the child in need route. The plans fail to address this. This is of especial importance given that a prime cause of such risk as the children were exposed to was the failure by the defendant to provide sufficient support services. These specific facts justified a departure from the statutory guidance “presumption” (as the claimants termed it) of making of protection plans once significant harm concerns had been substantiated. Departure was justified because “the parents were doing nothing wrong and there is nothing more they could do.” The failure to depart from the statutory guidance for those reasons was unreasonable and irrational in public law terms. The “elephant in the room” is the failure of the defendant to arrange section 17 support services as a reasonable and rational alternative to making CPPs.

70. The defendant’s case is that once significant harm was substantiated, it was plainly reasonable to make CPPs for the children. That was the requirement of the statutory guidance, which can only be departed from in “exceptional” circumstances as WT 2018 states in terms. The point of the plans was to address and reduce identified risks to the children’s safety. Hence the plans were reasonable and lawful. Discussion

71. There is much to discuss. To assist, I structure my analysis under nine headings and then provide the court’s conclusion.

72. First, the starting-point must be a full recognition that the claimants by reason of living with disabilities are children in need for the purposes of section 17(10)(c) of the Act. Every local authority has a duty to safeguard and promote the welfare of all children in need (and hence all disabled children) in their area. Further, and so far as is consistent with that duty, the local authority must promote the upbringing of such children by their families by providing a range and level of services appropriate to those children's needs (section 17(1)). As indicated, the local authority has a duty to provide services to disabled children where necessary to meet their needs (section 2(4) of the CSDPA 1970). In this regard, para 6 of schedule 2 of the 1989 Act provides: “Provision for disabled children 6 Every local authority shall provide services designed— (a) to minimise the effect on disabled children within their area of their disabilities; (b) to give such children the opportunity to lead lives which are as normal as possible; and (c) to assist individuals who provide care for such children to continue to do so, or to do so more effectively, by giving them breaks from caring.”

73. These services can be provided, and the duty discharged, under the CIN powers granted by section 17 of the Act.

74. Second, one must be alive to the legal basis for and effect of WT 2018. It was helpfully considered by Chamberlain J in R (ECPAT UK) v Kent CC, SSHD [2023] EWHC 1953 (Admin). He said at paras 43-44: “43. Section 7(1) of the Local Authority Social Services Act 1970 (" LASSA 1970 ") provides that local authorities must, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State. That provision was considered by Sedley J in R v Islington London Borough Council ex p. Rixon [1997] ELR 66 [“Rixon”]. He said this: “Parliament in enacting section 7(1) did not intend local authorities to whom ministerial guidance was given to be free, having considered it, to take it or leave it. Such a construction would put this kind of statutory guidance on a par with the many forms of non-statutory guidance issued by departments of state. While guidance and direction are semantically and legally different things, and while 'guidance does not compel any particular decision' (Laker Airways Ltd v Department of Trade [1967] QB 643, 714 per Roskill LJ), especially when prefaced by the word 'general', in my view Parliament by s.7(1) has required local authorities to follow the path charted by the Secretary of State's guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course.”

44. The Secretary of State has exercised the power conferred by s. 7(1) LASSA 1970 (among other powers) to issue statutory guidance on the performance by local authorities of their functions under the CA 1989 entitled Working Together to Safeguard Children (2018) […].”

75. Third, to situate the issue in public law terms, this is a rationality challenge. The question is whether no reasonable local authority following a lawful substantiation of significant harm following section 47 enquiries (Issue 1) could have made each child subject of a protection plan. While such a decision is not impregnable, irrationality is an exacting standard of challenge. That must be so because local authorities with their institutional experience can be taken to be adept at making such decisions about child safety. This court should be slow to intervene on rationality grounds, as are advanced here, but not hesitate to do so when required.

76. Fourth, the approach to decisions at conferences convened for child protection purposes was set out by Butler-Sloss LJ in R v Harrow Borough Council, ex parte D [1990] FLR 79, at 85, albeit in the context of placing a child who is victim of abuse on the register: “… Of its nature, the mechanism of the case conference leading to the decision to place names on the register, and the decision-making process, is unstructured and informal. … it is not a judicial process. It is part of a protection package for a child believed to have been the victim of abuse.”

77. Fifth, it is important to understand that CPPs have no statutory basis. Tracking through the process reveals this. The section 47 investigation is a statutory enquiry under the Act to enable the local authority to “decide whether they should take any action to safeguard or promote the child’s welfare”. If the concerns about significant harm are substantiated, the way in which the local authority acts depends on its assessment of what is necessary to best protect the child. This is because section 47(3) provides: “(3) The enquiries shall, in particular, be directed towards establishing— (a)whether the authority should— (i) make any application to court under this Act; (ii) exercise any of their other powers under this Act.”

78. An example of making an application under the Act would be applying for care or supervision orders under Part IV. Where Part IV orders are not deemed necessary, the local authority can look more widely under subsection 3(a)(ii) about how to effect the best protection for the child. Section 47(8) provides: “(8) Where, as a result of complying with this section, a local authority conclude that they should take action to safeguard or promote the child’s welfare they shall take that action (so far as it is both within their power and reasonably practicable for them to do so).”

79. When not making applications under the Act, the local authority will look not at statute but statutory guidance. This is an important categorical transition. The applicable guidance in this case is WT 2018. WT 2018 is directed at those practitioners whose duty it is to deal with children potentially at risk. Thus the guidance states at para 8: “Who is this guidance for?

8. This statutory guidance should be read and followed by strategic and senior leaders and frontline practitioners of all organisations and agencies as set out in chapter 2 of this document.”

80. The guidance states that it “should be complied with unless exceptional circumstances arise” (para 6). The defendant submits that this formulation is “very prescriptive’. The courts have frequently confirmed the principle in Rixon that statutory guidance the making of which derives from parliamentary enactment in its source should be followed unless “good reason” exists. The statutory guidance enshrined in WT 2018 contains the phrase “exceptional circumstances”. That is an extremely high test. The claimants invite the court to rule that part of the guidance unlawful. It seems to me disproportionate to engage in an analysis of the lawfulness of the guidance about which I received very little argument and no treatment whatsoever of the authorities around taking such a step. I make it clear that I approach the question on departure from the statutory guidance by asking the recognised Rixon question of whether there was good reason to depart (not exceptional circumstances). But that is getting ahead of the analysis. I return to how CPPs can be made under the statutory guidance.

81. The guidance states that where, following section 47 enquiries, concerns of harm are substantiated and the child is judged to be suffering or likely to suffer significant harm social workers “should convene an initial child protection conference” (page 45). The word “should” carries with it a strong normative steer. I have found that it was not irrational nor unlawful for the defendant to conclude that the concerns of significant harm had been substantiated. It will be remembered that the position of the claimants in respect of convening a CPC has changed and it is no longer challenged as unlawful. One proceeds then to the purpose of the conference. WT 2018 states at page 46: “Following section 47 enquiries, an initial child protection conference brings together family members (and the child where appropriate), with the supporters, advocates and practitioners most involved with the child and family, to make decisions about the child’s future safety, health and development. Purpose: To bring together and analyse, in an inter-agency setting, all relevant information and plan how best to safeguard and promote the welfare of the child. It is the responsibility of the conference to make recommendations on how organisations and agencies work together to safeguard the child in future. Conference tasks include: appointing a lead statutory body (either local authority children’s social care or NSPCC) and a lead social worker, who should be a qualified, experienced social worker and an employee of the lead statutory body identifying membership of the core group of practitioners and family members who will develop and implement the child protection plan establishing timescales for meetings of the core group, production of a child protection plan and for child protection review meetings agreeing an outline child protection plan, with clear actions and timescales, including a clear sense of how much improvement is needed, by when, so that success can be judged clearly.” This section of the guidance is central to the rival arguments placed before me. Before examining it, I add the corresponding passages in the local guidance (para 1.1): “The tasks for all conferences are to: … • Bring together and analyse, in an inter-agency setting, the information which has been obtained about the child's developmental needs, and the parents' capacity to respond to these needs to ensure the child's safety and promote the child's health and development within the context of their wider family and environment; • Consider the evidence presented to the conference and taking into account the child's present situation and information about their family history and present and past family functioning, to decide whether the child is at risk of significant harm; • Recommend what future action is required in order to safeguard and promote the welfare of the child, including the child becoming the subject of a child protection plan, what the planned developmental outcomes are for the child and how best to intervene to achieve these” (emphasis provided)

82. Sixth, the consequence of the statutory guidance is that once there is a substantiation of significant harm (in the way set out in section 47), a conference is convened at which there should be the “agreeing of an outline child protection plan” and this is why by the end of submissions the claimants accepted that “there is a policy presumption in favour of a making a plan”. Therefore, it was not disputed between the parties that once a CPC is lawfully convened, there is a presumption that a CPP will be made, but that course could be departed from if there was sufficient justification (which I take to be good reason) given the risks and needs in the case. This approach is confirmed by “flowchart 4” in the WT 2018 statutory guidance (page 41). It depicts visually how once it is substantiated that that a child is “likely to suffer significant harm” then at the conference the “child is subject of a child protection plan; outline plan prepared”. This is for all the practitioners “most involved with the child and family” to make decisions collectively about the child’s safety. The approach set down in the statutory guidance may be compared with the local guidance, where the “threshold” for a CPP is set out: “9.1 Threshold for a Child Protection Plan The conference should consider the following question when determining whether a child requires a multi-agency child protection plan: • Has the child suffered significant harm? and • Is the child likely to suffer significant harm in the future? The test for likelihood of suffering harm in the future should be that either: • The child can be shown to have suffered maltreatment or impairment of health or development as a result of neglect or physical, emotional or sexual abuse, and professional judgement is that further ill-treatment or impairment is likely; or • A professional judgement, substantiated by the findings of enquiries in this individual case or by research evidence, predicts that the child is likely to suffer maltreatment or the impairment of health and development as a result of neglect or physical, emotional or sexual abuse. If a child is likely to suffer significant harm, then they will require multi-agency help and intervention delivered through a formal child protection plan.”

83. The local guidance then outlines the purpose of a CPP: “The primary purposes of this plan are to: • Ensure the child is safe from harm and prevent them from suffering further harm; • Promote the child's health and development; and • Support the family and wider family members to safeguard and promote the welfare of their child, provided it is in the best interests of the child.”

84. One sees again, unsurprisingly and appropriately, the primacy of child safety.

85. Seventh, on the question of good reason to depart from the policy presumption of making a CPP, the key argument made by the claimants is that there was a different and better course open to the defendant: to treat each child as a child in need under section 17 of the Act. There are a number of elements to this argument. Each must be considered.

86. To begin the analysis, WT 2018 sets out the purpose of assessments under section 17 of the Act (page 35): “Where the local authority children’s social care decides to provide services, a multi-agency child in need plan should be developed which sets out which organisations and agencies will provide which services to the child and family. The plan should set clear measurable outcomes for the child and expectations for the parents. The plan should reflect the positive aspects of the family situation as well as the weaknesses.”

87. The purpose of assessments is said to be (ibid.): “Assessments should determine whether the child is in need, the nature of any services required and whether any specialist assessments should be undertaken to assist the local authority in its decision-making.”

88. To the submission made on behalf of the claimants that everything that could be achieved by CPP could be accomplished by a CIN plan, the defendant submits that the two types of plan are very different. Indeed, one is bound to ask what purpose exists for having child protection plans if a CIN plan could achieve everything that a CPP could. What is missing in the claimants’ analysis is a recognition of the reason two different processes exist. The assessments under the CIN pathway are to determine whether the child is in need. It is important to remember what that means. Section 17(10) of the Act provides: “(10) For the purposes of this Part [emphasis provided] a child shall be taken to be in need if— (a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part; (b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or (c) he is disabled, and “family”, in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.”

89. The claimants began their oral submissions by emphasising what is not in doubt: that the children are disabled children in need. The court fully recognises this. There needs to be proper assessment of the parents as carers as part of the child in need assessment (section 17ZD). The purpose, the claimants submit, is “to avoid child protection”. As noted, under schedule 2 of the Act, the will of Parliament is for the child to live “as normal a life as possible” (para 6) and the local authority should provide services to meet and minimise the effect of the child’s disabilities. Of significance is what “this Part” means in section 17(10). Section 17 falls under Part III of the Act. This is entitled “Support for children and families provided by local authorities in England”. Part III is about support and services that the local authority can provide directed at the child’s need and in particular the child’s health and development or disability. By contrast, section 47 falls under Part V which is concerned with the “protection of children”. The terms of section 17(1) are: “17 Provision of services for children in need, their families and others. (1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)— (a) to safeguard and promote the welfare of children within their area who are in need; and (b) so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children’s needs.”

90. It could be said that to “safeguard and promote the welfare” by providing services appropriate to the child’s needs is sufficiently broad to encompass protecting the child from significant harm. But if that is so, one wonders what the purpose of Part V is and why in the statutory guidance there is an unmistakable and deliberate distinction between children under Part III and Part V. The answer, to my mind, is clear: Part III is concerned with addressing the needs of a child; Part V is about protecting the child from significant harm and is concerned with child safety in a way Part III is not. These distinctions are vital. To provide services under Part III, there is no need for the substantiation of significant harm. Part III assessments examine the child’s specific needs and how best to address them with appropriate services provided by the local authority. Part V is about investigating whether a child is suffering or is likely to suffer significant harm – a very different concept. If substantiated, the statutory guidance states that a conference should be convened and there is a presumption under the guidance that a protection plan for the child is made. This makes obvious sense. The point of the protection plan is not simply to provide services to promote the child’s general welfare, although section 17 services may legitimately be provided as part of the CPP overall package of measures, especially if it reduces risk. Instead, a protection plan is aimed at developing an effective strategy – a plan – to protect the child from significant harm. Naturally, CIN assessments may lead onto child protection enquiries; section 47 assessments may reveal needs that should be supported. The statutory guidance makes this clear at page 35: “Where information gathered during [a CIN] assessment (which may be very brief) results in the social worker suspecting that the child is suffering or likely to suffer significant harm, the local authority should hold a strategy discussion to enable it to decide, with other agencies, whether it must initiate enquiries under section 47 of the Children Act 1989.”

91. Therefore, if the CIN pathway reveals concerns about significant harm, then there should be strategy discussion about whether matters should be escalated from the Part III pathway to the Part V child protection pathway. In broad terms, after LF asked for a further section 17 assessment, concerns were raised about the safety of the children. The (reasonable grounds for suspicion) threshold for section 47 enquiries was established and a section 47 investigation started. It was this statutory enquiry that led onto the CPC and CPPs. On page 48, WT 2018 states: “The aim of the child protection plan is to: ensure the child is safe from harm and prevent them from suffering further harm promote the child’s health and development support the family and wider family members to safeguard and promote the welfare of their child, provided it is in the best interests of the child.”

92. The focus on the safety of the child under the child protection pathway is also evident in the statutory guidance at page 44 where WT 2018 states: “If local authority children’s social care decides not to proceed with a child protection conference then other practitioners involved with the child and family have the right to request that local authority children’s social care convene a conference if they have serious concerns that a child’s welfare may not be adequately safeguarded. As a last resort, the safeguarding partners should have in place a quick and straightforward means of resolving differences of opinion.”

93. This illustrates the centrality and seriousness with which concerns about the safety of the child are regarded and rightly so. There is no requirement under the CIN pathway for the holding of a child protection conference. The guidance under WT 2018 makes clear that relevant agencies should provide input to the overall CIN assessment, but there is not an obligation to convene a formal conference as required in the child protection pathway with a conference following the substantiation of significant harm concerns. That child protection conference should involve all those practitioners “most involved” with the family and thus the child or children at risk. Once the child is made the subject of a CPP, a “core group” is established and must meet within 10 working days of the initial CPC at which the plan was made. After the conference, the social worker should “develop the outline child protection plan into a more detailed interagency plan and circulate to relevant practitioners (and family where appropriate)”. Here is sustained action with a clearly enunciated structure for progress. There are then timetables for formal reviews of the plan (initially within three months and then at a maximum of six-monthly intervals) and a requirement that the plan is updated to reflect changing circumstances. In the instant case, the arrangements made under the CPPs were that the Core Group meeting would be on 22 August 2023 via Teams with the review conference on 6 November 2023. It is apparent how the defendant followed the statutory guidance.

94. One then examines the content of the plans put in place. As the defendant recognises, some of these steps are steps or the provision of services that could take place under section

17. That is entirely permissible and envisaged in the child protection pathway given the need for joined-up action in the child’s best interests, an ethos reaching back all the way to the learning from the Victoria Climbié Inquiry. But, as the defendant correctly submitted, “there are other steps” beyond those under section

17. The action points of the CPPs recorded by Ms Wood the child protection notetaker include: “SC and FC to be made subject of a Child Protection Plan under the category of Emotional Harm "Charlotte Pratt is Case Coordinator. Charlotte to undertake fortnightly visits to the family– these visits are to be planned and unplanned and are to be undertaken within statutory guidelines. For the next CP Conference, parents have agreed that SC can meet with an advocate." "The Social Work Team to focus on the following work: The children to have their physical and emotional needs met by this multi-agency plan, which will include safety planning. For SC, considering 1:1 work with her, and a family meeting to build safety for her and to allow her voice to be heard. SC to continue to be supported within her educational setting and for there to be updates to them about the outcome of the meeting. Any work undertaken with SC will be in consultation with the parents and also the psychiatrist who supports SC. A session between Charlotte and parents to look at their life experiences, which will be with Anna. Any safety planning must be undertaken to address the concerns around LF's DID and when she has an episode which means she is not able to protect or address FC's needs. Additionally taking on board support the parents will need, including for their own individual needs.”

95. One sees the focus on the safety of the children and it is this emphasis the distinguishes the child protection pathway from that under the child in need. However, a key argument advanced by the claimants is based on the situation as at May 2023. At that point, and as recorded in the minutes of the section 47 outcome (4 May 2023): “Children's services have agreed with both LF and [TF] that LF should not be unsupervised with the children. The current safety plan involves [TF] or another member of their network being present at all times. This plan should remain in place until support by adult care is in place and children's social care can review services with the family.”

96. Here it is said that the need for further support services is clearly set out. Those services were not provided before the CPPs were made. This, it is submitted, demonstrates that as at the CPC, even if significant harm was substantiated, there was a rational choice open to the defendant to implement what was outlined in May 2023 – greater provision of support services. The defendant’s failure to provide what it identified as needed demonstrates that its decision to make CPPs rather than to pursue a section 17 CIN route was unnecessary and irrational.

97. This is a serious argument. But it seems to me to be flawed. This is because the situation continued to deteriorate. By the 7 August 2023 CPC, there was further information about risk. The picture was clearer and fuller. The safety scaling had deteriorated from 5 to

2. I cannot but think that this marked escalation of risk towards “danger” levels on the applicable scale points strongly towards the need for collective institutional action directed at child safety.

98. Eighth, I address the claimants’ additional submission that making the children subject to CPPs was a “punitive” or coercive intervention. In R (AB, CD) v London Borough of Haringey [2013] EWHC 416 (Admin), HHJ Thornton helpfully identified the negative consequences of parents becoming involved in section 47 investigations. He said at para 11: “A section 47 enquiry has in recent years become very damaging for the life, career and family relationships of many who are parenting or caring for the child being assessed…involvement in a section 47 enquiry may often result in the ending of a career involving contact with children… there will rarely be a means for those unfairly marked out by involvement in a section 47 enquiry to eradicate that stain on their professional and personal reputation.”

99. The argument is that the making of CPPs represents an unnecessary escalation since if the plans are breached, they expose the parents to the risk that Part IV proceedings may be taken. As it was submitted, “if the parents can do nothing different, why should there be CPPs”. This ties in to the core complaint that the source of the risk to the children has been the lack of provision of services by the defendant. This submission fails to engage with the purpose of protection plans. They are not to point the finger of blame. They are directed at how to make the child safe. The claimants’ supplement their submission by stating that the “improvement needed” under a CPP is “usually improvement by the parents”. Here, however, “the only people who can do things different are the defendant”. This fails to appreciate that the improvement required under the plans is an improvement – a reduction – in the level of risk the child is exposed to. That is not simply a demand that the parents “improve” their behaviour or mend their ways. The conduct of the parents has not been criticised by the defendant. In a case such as this, the aetiology of risk is far more complex and nuanced.

100. However, the lack of fault on the part of the parents does not mean that the children are not likely to suffer harm or significant harm because of the totality of circumstances around them. The plans are directed towards the reduction or elimination of this risk. Some of the action points identified in the plan are specifically aimed at safety planning specifically “to address the concerns around LF's DID and when she has an episode which means she is not able to protect or address FC’s needs”. This had to be combined with “the support the parents will need”, including “their own needs”. We see how the focus is, quite properly, on child safety and the factors that may affect it and how those risk factors arising from the parents’ own needs considered holistically, without blaming the parents, can be addressed through support. For example: “LF to be supported with her mental health through the Adult Mental Health Team” “TF to receive support around his own emotional wellbeing via the Social Worker, and the GP.”

101. All this is tied into child safety and protection and not simply wider welfare concerns. Against this, the claimants submit that the “acid test” is that once the services were “on stream” the CPPs were ended in November 2023. They point out that as part of the mediation, FC was attending a residential school under section

17. As submitted, “there is no reason why that could not be done before”. The claimants emphasise that the adult social worker Ms Prothero pointed out that more support services were needed. This is supported by Ms Prothero’s later observation at the core group meeting (undated minutes, but possibly 27 August 2023) that “the Child Protection Plan would not have been necessary if a proper package of care for the children had been put in place.” The claimants submit that Ms Prothero’s support for CPPs can be read as only ever “equivocal”. In similar vein, in her witness statement, LF states at para 12: “[TF] and I have been consistently requesting additional support from the Council since 2021 to help us meet FC and SC’s needs. Each of the risks identified through the safeguarding and Child Protection processes were capable of being mitigated through the provision of additional care and support from the Council. Indeed the provision of care and support by the Council was the only way to mitigate those risks.”

102. The form used by Ms Prothero to complete her report for the CPC asked for reasons justifying why the threshold for a CPP was met. She stated that “without adequate support for the parents to manage their caring role, there is a risk to the whole family’s wellbeing”. The claimants submit that this is another instance whereby support services could have been provided under section 17 rather than a CPP. However, against this is the unarguable fact that such support services can be provided as part of a CPP package, although the making of a CPP in itself does not grant the power, the authority for support services deriving from statute.

103. As to Ms Prothero’s “equivocal” or tepid support for making CPPs, at the conference in August, the practitioners were unanimously in favour of making the children subject to protection plans. At the time of the 7 August CPC, once significant harm concerns had been substantiated, it was imperative to find the most effective way to protect the children in future. Whether or not the provision of services could have avoided the necessity to make CPPs as of August 2023 is speculative. The question before the August conference was different: how best to protect the children in future.

104. It is certainly the case that once the CPPs were made in August 2023, the situation seems to have improved. There had been a multi-agency conference with the chief item of business being child protection. The plans made were subject to a review in November and the action points identified in the plans were to be actively reviewed then. It seems to me arguable, as the defendant submits, that the reduction of risk indicates the effectiveness of making the plans. Following a sustained multi-agency institutional focus, there was a reduction of the risk of harm the children were exposed to. On the claimants’ case, this sequence is coincidental as nothing was done to contribute to that reduction. It is very difficult to pick apart with precision in such a complex and shifting situation with so many contributing (and confounding) factors what did or did not work to reduce risk. The question for this court on this issue remains whether as at 7 August 2023 it was reasonably open to the defendant to make the plans. The claimants further argue that the short duration of the plans – made on 7 August, terminated on 9 November – reveals their irrationality. For similar reasons, this may equally be viewed as a signpost pointing towards their effectiveness and proportionality (the second issue being considered later).

105. Nineth, I note the content of TF’s filed witness statement at para 17: “In fact, after the first section 47 enquiries the Council reduced the respite care available to us. I believe that it is telling that when we showed the CPP to Charlotte Pratt, FC’s social worker, who did not attend the meeting, she stated that each of the action points ought to be set out in a child in need plan, and there was no reason that they needed to be on a CPP.”

106. I observe that there is no evidence from Ms Pratt to refute what TF said in his statement at para

17. I raised this point with the defendant at the hearing. Having taken instructions, the defendant stated that Ms Pratt had no recollection of ever saying anything like that to TF or in those terms. However, an account based on instructions proffered at a hearing through counsel is no substitute for evidence. The defendant had every opportunity to meet TF’s evidence about Ms Pratt’s views and failed to do so. Therefore, I add his evidence about what Ms Pratt said to him into the overall assessment about the reasonableness of the defendant’s decision-making. However, what he recollects Ms Pratt as saying, I am bound to note, runs contrary to the thrust of her reports and interventions. She was clear that CPPs should be made at the August 2023 CPC (although she could not attend being on annual leave, having her views supplied by her manager in attendance). I place limited weight on this evidence in the context of the case as a whole, but certainly do not disregard it. Conclusion: Issue 2

107. The making of a CPP does not in itself confer powers on the local authority. A CPP is non-statutory. But the CPP produces a sustained institutional focus directed not just at promoting child welfare through the provision of services, but multi-agency meetings and work to ensure child safety which is its underlying rationale. As the local guidance says in terms, once significant harm concerns have been substantiated, the child “will require multi-agency help and intervention delivered through a formal child protection plan”. One sees here the plan as a delivery mechanism, a point of focus and collaborative organisation between agencies and those frontline practitioners “most involved” with the family and child. One can trace the importance of the active coordination between the most closely involved practitioners from the inception of the original statutory guidance following the inquiry into the death of Victoria Climbié. Where clear safeguarding risks have been identified, a CPP provides the organisational mechanism under statutory guidance for the coordination and information sharing between the agencies as a fulcrum for the necessary multi-agency response. I am not persuaded by the submission that because there could be planning meetings under a CIN plan, a CPP is unnecessary. The point is that in the statutory guidance the precondition for a protection plan of significant harm substantiation has been met. The statutory guidance reaching back all the way back to the origins of our collective response to serious safeguarding failures such as occurred in Victoria Climbié’s death is that the coordination of agencies and professionals is needed. A protection plan is the institutional structure for the monitoring of risk of harm and coordinated multi-agency action. The defendant is obliged to have regard to the guidance and follow it unless there is sufficient justification to “deviate”, as Sedley LJ termed it. To repeat, LASSA 1970 as enabling statute provides at section 7 that the local authority “shall … act under the general guidance of the Secretary of State.” WT 2018 is that general guidance.

108. Therefore, the availability of other pathways does not render a CPP valueless. The question is what is most appropriate following the substantiation of significant harm concerns. The fact that some of its action points may be achieved under statutory powers under the CIN pathway does not denude the protection plan of purpose. The statutory guidance has carefully laid out the general child protection guidance the defendant is obliged to have regard to. What is essential and to be achieved through making a protection plan is a structured, sustained and effective multi-agency institutional monitoring of the risk the child is exposed to. This is different in nature, focus and emphasis to the CIN pathway; the focus is different because a CPP can only follow a substantiation of concerns about significant harm. Therefore, the two routes are different for a reason: with the child protection route, the central issue is child safety. The CPP operates as a form of alert. It identifies the child’s status differently, not as in need but as in need of protection. That is a material difference. Therefore, I cannot accept the submission that a CPP adds nothing that a CIN plan could not do. It plainly does and is designed to. In the glossary of WT 2018, the guidance about the meaning of the term child protection is given: “Child protection: Part of safeguarding and promoting welfare. This refers to the activity that is undertaken to protect specific children who are suffering, or are likely to suffer, significant harm.”

109. Here one sees child protection as a specific aspect of the wider ambition of WT 2018, which is to safeguard and promote the welfare of the child with a child protection priority in cases where questions about significant harm arise. One must return to the nature of these proceedings in judicial review. This is not a judicial review challenging the failure to provide support services. That would be a different claim. Instead, the targeted decision on this issue is the making of CPPs. Given the substantiation of significant harm, which I find is lawful, I reject the submission that no reasonable authority would have made a protection plan for each child. In essence, the task for the claimants is to establish that no reasonable local authority would have followed the statutory guidance. Such submission is misconceived. I find here no good reason to depart from the statutory guidance and sound and compelling reasons to follow it. This is because of the complex array of serious and interlocking risks the children had been exposed to and the significant harm they were likely to suffer as lawfully identified by the section 47 enquiries. By the time of the conference, the safety level had deteriorated from a scaling of 5 to

2. In the response to the parents’ complaint about the CPPs, the child protection manager Verity Felles wrote: “The threshold for making a child protection plan is around children experiencing harm and abuse. We recognise this is not always intentional harm. In the conference for your children, threshold for a child protection plan was discussed and it was determined that SC and FC had suffered significant harm and were likely to suffer significant harm in the future if nothing changed.”

110. It was entirely reasonable to make protection plans to address the identified safety risks. Put more simply: it was reasonable to make a safety plan to protect each child in light of substantiated concerns about their safety. I can accept the claimants’ submission that the change of safety scaling from 5 to 2 does not automatically mean that a plan is necessary. But the question is whether it was reasonable. The point of each plan was to reduce the safety risks the children were exposed to. In this, I judge that the defendant’s approach and decision-making had the hallmarks of reasonableness. A further indicator of the balance and flexibly fact-sensitive nature of the defendant’s approach can be seen by the termination of the plans in November 2023 when the scaling reverted to 5, that is, to pre-plan levels.

111. While it is conceivable that some local authorities may have not made CPPs and continued to pursue the section 17 service-provision route, that is not the test in public law. This is not an appeal. It is a rationality challenge with the demanding threshold that entails. The argument that no reasonable local authority could have made protection plans for these children in light of the high degree of risk they faced and the significant harm they were likely to suffer as a result is unsustainable. It is entirely unsurprising on the facts that no frontline professional attending the CPC dissented from the making of the protection plans. The practitioner unanimity reached was reasonable and rational. The plans were not punitive in ambition or design but appropriately protective.

112. Therefore, the challenge that the making of CPPs was irrational fails. VII. Issue 3 (emotional abuse)

113. The key question on this issue is whether the conclusion that the CPPs should be placed under the heading of emotional abuse is irrational. The reason that a category of harm was determined arises from the defendant’s local guidance at 9.2: “9.2 Decision that a Child needs a Child Protection Plan If a decision is taken that the child has suffered, or is likely to suffer Significant Harm and hence in need of a Child Protection Plan, the Chair should determine which category of abuse or neglect the child has suffered or is likely to suffer. The category used (that is physical, emotional, sexual abuse or neglect, see Recognising Abuse and Neglect Procedure for definitions) will indicate to those consulting the child's social care record the primary presenting concerns at the time the child became the subject of a Child Protection Plan.”

114. This guidance follows the approach in the earlier version of the statutory guidance found in WT 2010 (March 2010). The definition of emotional abuse in dispute in this case comes in the glossary to the WT 2018 statutory guidance. It states: “Emotional abuse The persistent emotional maltreatment of a child such as to cause severe and persistent adverse effects on the child’s emotional development. It may involve conveying to a child that they are worthless or unloved, inadequate, or valued only insofar as they meets the needs of another person. It may include not giving the child opportunities to express their views, deliberately silencing them or ‘making fun’ of what they say or how they communicate. It may feature age or developmentally inappropriate expectations being imposed on children. These may include interactions that are beyond a child’s developmental capability, as well as overprotection and limitation of exploration and learning, or preventing the child participating in normal social interaction. It may involve seeing or hearing the ill-treatment of another. It may involve serious bullying (including cyber bullying), causing children frequently to feel frightened or in danger, or the exploitation or corruption of children. Some level of emotional abuse is involved in all types of maltreatment of a child, though it may occur alone.”

115. It must be emphasised this issue arises in an unconventional way. There is not a requirement under WT 2018 to determine a category of harm the child which expresses the primary presenting concern. The claimants submit that this “is a distinction without a difference”. The defendant chose to make such a categorisation. Therefore, the claimants submit that it is open to the court to decide whether the category choice was irrational. Marking the category of harm for the claimants’ protection plans as “emotional abuse” seems to me to be a relevant and important decision made by a public authority. It has importance and potentially adverse consequences. Therefore, simply because it was not a determination or finding the defendant was obliged to make, is beside the point. Once the defendant elected to ascribe the emotional abuse category, that decision is susceptible to challenge in public law terms and I accept the claimants’ argument on that.

116. The claimants submit that the determination of category at the December 2023 review as emotional abuse is plainly unjustified and irrational. As TF states in his statement at para 8: “LF and I were very conscious going into the ICPC [7 August 2023 CPC] of what the 4 categories were for implementing a CPP (neglect, emotional abuse, physical abuse, sexual abuse), and we felt confident that they would not find us in need of a CPP because it seemed very clear that none of those categories applied to our situation, and we expected the Council to agree with that.”

117. TF said at para 17: “17. In summary, I strongly refute the finding that we have caused emotional abuse to our children, a finding which has no basis in the evidence. The only blame I can identify, and the only thing that could have been different to help the situation, was that the Council failed to provide adequate support to meet our family’s needs, in particular FC’s needs, in a timely way or at all.”

118. The defendant submits that categories of harm are not “hermetically sealed”. They are illustrative only, being broad guidance for frontline practitioners. They are nothing more than that and should not be “pored over” or applied in a “tick box way”. It makes no sense to require that every element of a broad glossary definition is met.

119. I observe at the outset that when the CPPs were made the term used was emotional harm. That is not a designated category of harm in either WT 2018 or the local guidance. I am not impressed with the point that it was probably used as “softer language” to protect the feelings of the parents. If this was the case, it was a misstep. It has only generated unnecessary confusion. These are serious decisions that should be taken seriously and with the conviction to speak plainly. If the defendant’s assessment was that the best descriptor category was emotional abuse, that should have been declared from the start. Nevertheless, the question for the court is whether it was irrational to choose emotional abuse as the harm category when the question was reconsidered in December 2023. That is what the parties agreed should happen during the mediation, with the defendant given a further opportunity to consider what the best category descriptor was. I must examine whether the emotional abuse category determination was irrational. The proper approach

120. I make five preliminary points before turning to the meaning of emotional abuse.

121. First, it should be noted that the question is not whether the defendant made an irrational “finding” of emotional abuse. The defendant was not engaged in a fact-finding. It was making a decision about the best way forward to safeguard the children in future and part of the process was to identify the primary presenting concern. The claimants accept that to frame the exercise as a fact-finding would be to impose a degree of formality that is inappropriate. A CPC is not a form of litigation or a step in legal proceedings. It is part of the process of child protection.

122. Second, as noted by Singh J (as he then was) in R (O) v Peterborough City Council [2016] EWHC 2717 (“Peterborough”)at para 52: “the reasons of a public authority which are set out in the sort of document under consideration in this case, such as the minutes of the meeting of 11 March 2015, should not be read as if they were a statute or a contract. As has been emphasised in other administrative contexts such as planning, they should not be read as if, for example, a public authority was sitting an examination. They need to be read in a commonsense and fair way and read as a whole.”

123. I take from this that while the December decision to determine the harm category as emotional abuse may be the legitimate target of a rationality challenge, the court should be slow to minutely scrutinise every comment or recorded thought in the documents.

124. Third, the term emotional abuse is not mentioned, let alone defined, in any relevant statute. Its source is a glossary to statutory guidance. There is no requirement to make a finding of emotional abuse or any other type of abuse before a CPP can be made. This is important. Emotional abuse is not a precondition to the making of a CPP. The local guidance puts it this way at para 9.2: “If a child is likely to suffer significant harm, then they will require multi-agency help and intervention delivered through a formal child protection plan.” Therefore, the CPP is a delivery mechanism to deliver the help the child requires. This does not necessitate a prior finding of emotional abuse.

125. Fourth, the content of the statutory guidance changed. In earlier versions of WT, there was a need to assign a category of harm to a plan. In WT 2018, however, the requirement to settle on a category of harm was removed. Therefore, a CPP without assigning a harm category is not unlawful. In fact, such an approach is in accordance with the applicable statutory guidance. The lack of statutory guidance requirement of category determination casts some light on the rigour with which local guidance needs to be applied. I can see that if the assignment of category were mandated under statutory guidance, then the approach to the definition may be different. I have concluded that the decision based on the local guidance must still be rational and certainly cannot be arbitrary or plainly illogical. But not being a mandated step is one relevant context for the rigour with which the glossary definition should be applied.

126. Fifth, the legal implications of assigning a harm category to a plan that is not justified by the evidence and thus irrational will be considered, if necessary, at any relief stage that follows this judgment. The parties agree that I should not decide the relief question now. What I am invited to do, and am prepared to do, is decide whether the determination of the category of harm as “emotional abuse” was irrational. Before turning to rationality, I consider what emotional abuse means. Meaning of emotional abuse

127. The claimants submit that the meaning of emotional abuse is clear and must entail maltreatment. In turn, maltreatment involves “the infliction of harm” as opposed to neglect or an omission or failure. In support of this submission, they point to the definitions of harm and abuse in the glossary: “Harm A form of maltreatment of a child. Somebody may abuse or neglect a child by inflicting harm, or by failing to act to prevent harm. Abuse A form of maltreatment of a child. Somebody may abuse or neglect a child by inflicting harm, or by failing to act to prevent harm.”

128. They submit that the comma in each of the second sentences is significant. The comma is said to draw the distinction between abuse through infliction as opposed to neglect through failure to prevent. The submission is that “the guidance says abuse is inflicting harm and neglect is failing to prevent harm.” The significance in this case is said to be that since the harm is said to arise through the parents’ failure or inability to prevent harm, that is (if anything) neglect not abuse. There is no “infliction”. There is at most a failure to protect or prevent, but that is also disputed as the true failure lay with the defendant’s failure to provide the support services the family needed.

129. The defendant contests this interpretation. The glossary categories are general guidance and porous. Discussion

130. Before examining the claimants’ submissions, I repeat the important caveat that one should not interpret statutory guidance as if it were a statute. Micro-analysing every word cuts directly across the proper approach to the interpretation of statutory guidance as guidance. This is particularly so when the statutory guidance requires no categorisation decision to be made about the definition. Therefore, the submission that one should extract significance from the positioning of a comma is to me inconsistent with the proper approach.

131. Further, the submission that “maltreatment must involve infliction of harm” has a number of difficulties. First, one considers the natural and ordinary meaning of maltreatment. There are many dictionary definitions. Purely by way of illustration, the court circulated the Cambridge Dictionary definition and the parties considered it. The claimants stated that they were content with the definition. The dictionary offered, as often happens, a series of examples of the word in question. For “maltreatment” the following was set down: “Emotional maltreatment accounted for fully half of the increase in serious abuse cases. He had a long list of grievances which included prisoner maltreatment.”

132. The claimants submit, “you cannot have an abusive failure to protect children, it is a non-sequitur.” At first, the claimants submitted that maltreatment must include some element of “fault”. However, this submission was withdrawn in light of the example of a carer with cognitive difficulties who harmed a child or exposed the child to risk without any culpability. Therefore, that interpretation cannot stand and was withdrawn. Looking at the dictionary examples, it is obviously possible to maltreat prisoners by failing to give them food or water. Of course, the failure to act could amount to neglect. This illustrates the obvious overlap between maltreatment and neglect.

133. This point is reinforced by the glossary definition. It includes “not giving the child opportunities to express their views”. This may be viewed as a failure and a form of neglect. However, it is provided by the statutory guidance as an illustrative example of emotional abuse. Another glossary example is “preventing the child participating in normal social interaction”. On the facts of any particular case such action may be an active prohibition (say, forbidding a girl from playing football) or more of a failure to provide opportunities for normal social interaction by, for example, isolating the child. The isolation may be a positive act; it may be a failure to let the child develop normal age-appropriate friendships and relationships. A further example comes from the glossary definition of neglect. It includes as part of the definition that “Neglect may occur during pregnancy as a result of maternal substance abuse.” The harmful act does not here appear to be a failure, but the positive act of consuming toxic substances or chemicals. This might be seen as the infliction of harm on the foetus. On the other hand, it might be viewed as a failure to attend to the foetus’ needs to develop safely. Here is another example of definitional difficulty and the clear overlap between categories. This seems to me to highlight both the difficulty and artificiality of drawing sharp distinctions between inflicted abuse and neglectful failure.

134. The perils of insisting on distinct categories is reinforced by the last sentence in the glossary definition: “Some level of emotional abuse is involved in all types of maltreatment of a child, though it may occur alone.” I cannot see how it can credibly be maintained that if neglect causes emotional harm that is not emotionally harmful and possibly abusive as well as neglectful. I do not see why it cannot be both or categorised as either. The subtitle to WT 2018 states that it is “A guide to inter-agency working to safeguard and promote the welfare of children”. Guidance about the meaning of that phrase is provided in the glossary: “Safeguarding and promoting the welfare of children Defined for the purposes of this guidance as: a. protecting children from maltreatment b. preventing impairment of children's health or development c. ensuring that children are growing up in circumstances consistent with the provision of safe and effective care d. taking action to enable all children to have the best outcomes”

135. There is no mention of neglect. Yet the objectives include protecting children from maltreatment. It is tolerably clear that here maltreatment is wide enough to encompass both abuse (whether emotional or physical) and neglect. You maltreat a child by treating her or him badly. That must sensibly include both the infliction of harm and the failure to prevent harm.

136. While the claimants submit that neglect is the persistent failure to meet the child’s basic needs, in fairness to the claimants the court pointed out to counsel the definition of neglect in the glossary includes the following: “b. protect a child from physical and emotional harm or danger”. One sees again the obvious and perhaps inevitable overlap between categories of harm. If this is correct, one enters the realms of the “best fit” argument about whether the identified harms the children were at risk of should be categorised as emotional abuse or neglect. I consider this question in the analysis of rationality. But I return to a key change in WT 2018: harm categorisation is no longer required. These problems illustrate why.

137. The problem with the claimants’ insistent and strict adhering to the glossary definition is further exemplified by a case where the emotional abuse is severe but intermittent as opposed to persistent. Persistent is the glossary word used in the first sentence. On a strict definitional approach to emotional abuse, such conduct does not fit the glossary definition. But it surely cannot be right that severe but intermittent emotional maltreatment cannot be thought of as emotional abuse. To this example, the claimants submitted that in such a case one would have good reason to depart from the definition in the statutory guidance and categorise the maltreatment of the child as emotional abuse despite not fitting the glossary definition. Once more, this approach seems to me to reveal the flaw in the claimants’ approach. The glossary provides broad guidance not a strict test. The better approach is to have regard to the glossary definition, as relevant, and then make a holistic evaluation about the primary presenting concern with good sense and by being sensitive to the particular facts of the case.

138. The claimants further submit that the words “such as to cause” in the first sentence of the glossary definition should be read to mean “which causes” or similar. It is submitted that it means that adverse effects are part of the definition of persistent emotional maltreatment, and by extension emotional abuse. Accordingly, the court should reject the interpretation that “such as to cause” offers the severe and persistent adverse effects as a mere illustration of how persistent emotional maltreatment may be established. It is not an illustration but a requirement of the glossary definition of emotional abuse, so runs the claimants’ argument.

139. The submission is that for emotional abuse there must be “severe adverse effects”. That consequence of abuse is a constituent part of the definition under the statutory guidance. Those severe effects are absent in this case, it is submitted. This submission has limited value. The claimants recognised that if there was a “resilient child”, there may be persistent acts of maltreatment that did not result in severe adverse consequences. This example shows that the attempt to apply the definition within the glossary strictly is likely to result in obvious exceptions that show that the text of the glossary should not be interpreted literally or formulaically.

140. To my mind, they also illustrate the perils of seeking to do precisely what should not be done: seeking to construe the glossary definition as if it were law. The glossary in the statutory guidance is a glossary of terms mentioned in the body of the guidance, not a schedule of strict statutory definitions. The definitions in the glossary do not enunciate any legal test, but offer examples of what might amount to the concept in question, such as sexual abuse, harm or emotional abuse.

141. I judge that it unnecessary for all the elements of the glossary definition to be satisfied before a category determination can be made. The claimants’ submission to the contrary is not in accordance with sound child protection practice. What one needs to ensure is that the broad definitions – and their interpretation – are flexible and sensitive enough to ensure that a child at risk does not slip between definitional cracks and as a result is not properly protected. It seems to me that the definitions provided in the glossary are indicative but not definitive. They are offered as useful indicators of harm to assist frontline practitioners. A strict and prescriptive legal test about any particular category of harm will do nothing to help protect at-risk children or assist the professionals tasked to help them. The categories of harm cannot and should not be sequestered into impermeable silos. They must retain a practical working flexibility. It may be that these complexities of human experience and the overlapping of categories of harm are in part why the need to determine a harm category was removed from WT 2018. Conclusion

142. In conclusion, I note that in WT 2006, the statutory guidance states at the beginning of the glossary (page xxvii): “Terminology in this area is both complex and changing as services are reshaped. This glossary sets out what is meant in the document by some key terms.”

143. It is also of interest that it states: “Abuse and neglect: Forms of maltreatment of a child”

144. This makes intuitive and logical sense. The notion that maltreatment requires infliction of harm as opposed to failure to prevent it is unconvincing, and to my mind wrong. The glossary definition of emotional abuse operates as broad general guidance and not a strict legal or other test. I move on to considering whether placing the plan under the emotional abuse category was irrational. Rationality of categorisation

145. I do not discern a conflict between the statutory guidance and the local guidance as much as a difference. WT 2018 does not prohibit the determination of category, and the local guidance simply adds such categorisation as an additional step that the Chair “should take”. Guidance is not law and the local guidance is not on a statutory footing. In any event, it is not unreasonable for the defendant to have followed it.

146. Some preliminary points. There is no test or degree of harm required before the category descriptor is determined under the local guidance. I cannot accept the claimants’ submission that before a category is assigned the level of harm falling solely under that category must reach the level of significant harm. That submission finds no support in statute or guidance.

147. Next, there is force in the defendant’s submission that the category chosen should be the “best fit”, a shorthand for the text in the local guidance which asks for identification of the primary presenting concerns at the time of the making of the plan. In other words, the category that best reflects the presenting safety risk facing the child. This makes logical sense. If the purpose of the category is to provide frontline practitioners with a compressed overview of the chief safety issue, then the “best fit” approach makes sense. Such an approach is consistent with the notion that different types of harm may cumulatively substantiate the significant harm concerns to move into the child protection pathway in the statutory guidance. Out of those various heads of harm, it makes sense that if the defendant chooses under local guidance to assign a category, it should choose the most appropriate head of harm.

148. It seems to me that reasonable local authorities could reasonably reach different judgements about which category of harm to assign to the claimants’ CPPs. For the rationality challenge to succeed, the claimants must establish that no reasonable local authority could have determined that the best descriptor of the harm category is emotional abuse. The heads of harm identified at the CPC in August 2023 include examples of what is likely to have caused emotional abuse directly and other actions which, as emphasised in the glossary, may cause emotional abuse indirectly and thus share or contribute an element of emotional abuse. I set these out now. Direct emotional abuse

149. An example of direct emotional abuse is SC having to spoon-feed their mother when LF is experiencing her child alter. This is plainly placing an inappropriate emotional burden on a child and asking the child to perform a role, as the glossary has it, beyond the child’s “developmental capabilities”. This has happened “on several occasions”. LF’s presentation has led to her having to explain to SC about her DID condition. This is a further emotional load for a child to bear. Further examples of emotional harm that contribute to the emotional abuse determination include LF having “flashbacks” in front of the children. LF has screamed at the children when she was reliving her childhood trauma. LF writhes in pain and talks in many voices. She has threatened to cut throats and threatened FC with violence on two occasions. This carries obvious risks of emotional harm. It is understandable that FC can become scared or confused when he witnesses his mother in these altered states. When LF’s “child” alters emerge, these emergent “children” are themselves distressed and this is undoubtedly distressing for LF’s children. As Ms Smith wrote for the section 17 assessment dated 20 April 2023, LF’s dissociative episodes “would have been frightening for the children to witness”. Indirect abuse

150. As to indirect abuse, when LF is in paralysis, SC stays in their room with the door locked as they are fearful of their brother assaulting them. SC must appreciate that their mother is unable to provide protection from FC’s physical violence at such times, with the consequences that entails about the child’s perception of their mother’s ability to care for them. SC has said that they (SC) are “terrified” of FC. Further, by “spending the majority of her time in her room”, as Ms Smith wrote in her section 17 assessment in April 2023, Ms Smith was right to harbour concerns that SC has “very limited social interaction”, which plainly risks resulting in emotional harm through limited social and emotional development. Ms Smith was rightly “concerned about the emotional impact the situation is having on SC.”

151. FC has had a number of accidents at home when his mother has been unable to protect him due to her paralysis. The frequency of LF’s paralysis had increased over the previous six to seven months. There is the obvious risk that such incidents, including his escaping the house and wandering unsupervised in the main road outside the house in front of moving traffic could cause emotional as well as physical harm to the child. For all these reasons, it is unsurprising that the parents accepted that the children were at risk of harm when LF was unwell. That harm may result in direct emotional harm or other forms of harm that carries the risk of indirect emotional harm, as set out. The question then is whether all these forms of direct and indirect emotional harm can amount to emotional abuse for the purposes of the glossary definition under WT 2018. Conclusion: Issue 3

152. I certainly accept that there was no meaningful discussion of emotional abuse at the CPC in August 2023. Further, the descriptor used at the meeting of “emotional harm” is not one of the four categories in the local guidance. However, that is not the end of it.

153. I have fully in mind what Singh J said in Peterborough: the point is not to mark the December categorisation decision as if it were an examination answer. The defendant asked itself the right question in December 2023: whether emotional abuse was the best descriptor of primary presenting concerns in August 2023. As indicated, the claimants’ submission that to determine such a descriptor that specific head of harm on its own must reach the significant harm level is wrong. The question of categorisation must be examined in the round using good sense and a sense of realism. If it is clear that due to a multiplicity of aggregated harms, “significant harm” has been substantiated, but no individual head of harm attains the significant level, it cannot be right that the primary presenting concern can never be identified. Further, I cannot accept the submission, to the extent it is maintained, that if the category chosen is wrong the plan is unlawful as it has been “shoehorned” into an irrational category. The issues under Ground 1 have been parsed out for good reason: the claim that it was irrational to conclude that significant harm concerns were substantiated was considered under Issue 1 and rejected; the claim that it was irrational to make CPPs was considered in Issue 2 and rejected. But the question of category of harm is a distinct matter. A plan may survive an irrational category label if a rational basis for making the plan exists. This is why the issues have been considered separately.

154. For my part, the claimants’ understanding of term emotional abuse in WT 2018 has been flawed. Contrary to the way the argument was originally advanced by the claimants, emotional abuse can arise unintentionally; it does not require “fault”; it can result from omission and does not require positive “infliction”. I cannot accept the submission that “it is logically impossible to passively maltreat a child, or to maltreat a child by omission. Any such failing would plainly properly be characterised as neglect.” It critically depends on all the circumstances as there is unquestionably an overlap between abuse and neglect and both are examples of maltreatment more broadly understood. Such harms may indeed overlap and mutually reinforce or deepen. An act of neglect by failing to protect may result in emotional harm and ultimately emotional abuse. Against this, the claimants’ submissions rest on an overly strict element-by-element analysis of what is provided in the glossary as broad general guidance. The analysis commended to the court includes the significance of a comma in the definition. I cannot think that this is how general guidance should be interpreted, especially when no category determination is mandated by the statutory guidance.

155. The submission in the claimants’ skeleton argument (para 57) that no reasonable local authority “could conclude that the parents emotionally abused their children” does not engage with what in fact is asked by the category classification: whether emotional abuse is the best descriptor of the primary presenting concern at the time of the making of the plans viewed in the round having regard to all the life circumstances surrounding the children. SC was being given inappropriate caring responsibilities for their mother. FC was at risk of significant physical harm which would very likely have substantial associated emotional harm consequences (as the glossary definition of emotional abuse envisages). SC was becoming isolated and was withdrawing. SC was “terrified” of FC’s violent conduct when it manifested. The children were exposed and continued to be at risk of being exposed in future to their mother in a state of paralysis or writhing in pain, screaming, assuming alters including distressed children, reliving childhood trauma, and threatening violence including the cutting of throats. At times, LF hit back at FC when he was hitting her. LF’s episodes of paralysis were becoming more frequent. There was a clear escalation of risk to the children’s safety and no surprise the safety scaling elevated from 5 to

2. In these circumstances, the defendant did the right thing and stood back and assessed overall which category descriptor best reflected the primary presenting concerns at the time of the making of the plans on 7 August 2025. I cannot think it sustainable that no reasonable local authority could have used the emotional abuse descriptor. Some local authorities may see the primary concern as neglect. But to suggest that no reasonable local authority could determine that emotional abuse was the best category of harm descriptor is misconceived in public law terms, given that this is not an appeal and this court should not substitute its own view.

156. The cause or causes of the harm these children suffered and were likely to continue to suffer were plainly complex, overlapping and interacting. The fact that a key cause of the risk was LF’s condition does not mean that neglect is the category of harm that all reasonable local authorities would select above emotional abuse (if they chose a category at all). As seen, while some of the risks arise from LF’s paralysis, others are the result of the actions of her alters. I emphasise that this cannot be deemed as LF’s fault. But when an alter manifests and acts in a way that is plainly emotionally distressing and harmful to her children, it is reasonably open to the defendant not to describe that as neglect. Further, those risks created by LF’s failures from an inability to care for the children due to paralysis are likely to result in indirect emotional harm as set out in the glossary.

157. We see in all this the difficulty in condensing complex situations into a single descriptor. There is obvious sense in the jettisoning of this requirement in WT 2018. Nevertheless, the defendant chose to determine a category. The claimants have failed to establish that the defendant’s determining the primary presenting concern as emotional abuse was irrational.

158. This element of the claim fails. VIII. Conclusion: Ground 1

159. Contained within Ground 1 are the three rationality challenges made by the claimants. I have scrutinised the defendant’s decisions by examining both process and outcome. I note what Lord Sumption said in Pham at para 107: “It is for the court to assess how broad the range of rational decisions is in the circumstances of any given case. That must necessarily depend on the significance of the right interfered with, the degree of interference involved, and notably the extent to which, even on a statutory appeal, the court is competent to reassess the balance which the decision-maker was called on to make given the subject matter. The differences pointed out by Lord Steyn may in practice be more or less significant depending on the answers to these questions. In some cases, the range of rational decisions is so narrow as to determine the outcome.”

160. I consider in detail the question of the degree of interference with Convention rights in the proportionality challenge under Ground

2. However, I am alive to the “significance”, as Lord Sumption puts it, of how the defendant’s decisions affect and “interfere” with the children’s life. To borrow from Lord Sumption, I do not consider in this case that the range of rational decisions is “so narrow” that the outcome is effectively determined. I have no difficulty in concluding that almost all reasonable local authorities would have concluded that significant harm concerns had been substantiated. Thus, on Issue 1, the claimants are very far from mounting an effective challenge. On Issue 2, there were compelling reasons for following the statutory guidance and although I recognise a “liberty to deviate”, as Sedley LJ put it in Rixon, the claimants have not established good reasons to depart from the clear presumption within the statutory guidance. Put another way: the defendant’s decision to make CPPs was entirely rational and reasonable and well within the range of rationality. Protection plans have a distinct purpose and are the vehicle for the monitoring of risk and coordinated multi-agency action to meet and reduce it to protect the child following substantiation of significant harm risk. On Issue 3, I recognise that some local authorities may have opted for neglect as the category of harm, should they have elected to nominate one. But that is not the test in public law. The defendant’s decision to determine emotional abuse as the primary presenting concern was within the set of options open to it. The decision had a rational basis and fell comfortably within the range of reasonable decisions.

161. All three rationality challenges contained within Ground 1 fail. Ground 1 must therefore fail. GROUND 2 IX. Approach to Convention rights

162. My approach to the Convention rights challenges is common to Issues 4 and 5 and I set it out here, emphasising its applicability to both issues.

163. The claimants appropriately directed the court to the judgment of the Supreme Court in Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs; Dalston Projects Limited v Secretary of State for Transport [2025] UKSC 30 (“Shvidler”). In it, the Supreme Court examined the approach to the assessment of proportionality. While the facts of the cases in Shvidler engaged the operation of the sanctions regime following Russia’s invasion of Ukraine, it repays to cite fully from the relevant passage of the judgment of Lord Sales and Lady Rose at paras 120-21: “7. The approach to assessment of proportionality (a) The court's task is to assess proportionality for itself 120 The Court of Appeal stated the law in relation to assessment of proportionality correctly. It is well established that the court has to make its own assessment whether a measure is proportionate to a legitimate aim. If a measure is not proportionate to a legitimate aim, it will be incompatible with the relevant Convention right and its adoption by the relevant public authority will be unlawful as contrary to section 6(1) of the HRA. The question of whether the action taken by the public authority is lawful or not is what the court has to decide on a challenge. As Singh LJ put it in his judgment (para 11), citing Belfast City Council v Miss Behavin' Ltd [2007] 1 WLR 1420 (“Miss Behavin' Ltd”), paras 13—15, the question whether an act is incompatible with a Convention right is a question of substance for the court itself to decide; the court’s function is not the conventional one in public law of reviewing the process by which a public authority reached its decision. As Lord Hoffmann explained in Miss Behavin' Ltd (para 15), the question is whether there has actually been a violation of Convention rights “and not whether the decision-maker properly considered the question of whether [the applicant’s] rights would be violated or not”. Other recent authorities which make this point include R (Begum) v Special Immigration Appeals Commission [2021] AC 765, para 69, and R (AAA (Syria)) v Secretary of State for the Home Department [2023] 1 WLR 4433 (“AAA (Syria)”), paras 56—57 and

71. In this sense, it can be said that the court’s function is not merely a secondary, reviewing, function dependent on establishing that the primary decision-maker misdirected itself or acted irrationally or was guilty of procedural impropriety. 121 However, in a challenge based on Convention rights under the HRA to action by a public authority, it is not accurate to say that the court becomes the primary decision-maker in the full sense of that term: see R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 (“Daly”), paras 26—28; Huang, para 13 (“although the Convention calls for a more exacting standard of review, it remains the case that the judge is not the primary decision-maker”); Bank Mellat para 21 (Lord Sumption JSC) and paras 70—71 (Lord Reed JSC: “The intensity of review varies considerably according to the right in issue and the context in which the question arises”); R (Lord Carlile of Berriew) v Secretary of State for the Home Department [2015] AC 945 (“Lord Carlile”), paras 20, 22, 31 and 34 (Lord Sumption JSC: “no review, however intense, can entitle the court to substitute its own decision for that of the constitutional decision-maker”; “a court of review does not usurp the function of the decision-maker, even when Convention rights are engaged”). The court’s role is to assess the lawfulness of the authority’s action against the substantive legal criteria which are inherent in the Convention rights, including the criterion of proportionality. The public authority decides on the action it will take, and hence is the primary decision-maker; but the court makes its own assessment whether such action is proportionate, and hence lawful, or not.”

164. This court is bound by the Supreme Court decision in Shvidler in its assessment of proportionality. Therefore, I examine proportionality, not to usurp the decision-making duty conferred on the defendant, but to assess whether any relevant decision made is proportionate and thus lawful. Here, in fine distinction to Issues 1-3, I am concerned not whether the defendant’s decisions were reasonable. Questions of proportionality are not classic review decisions. Rather I am concerned with whether on the evidence the Convention rights of the claimants were “violated”, as Lord Hoffmann put it, in a way that is disproportionate using the now widely recognised tests. I begin with Lord Reed’s formulation in Bank Mellat v HM Treasury (No. 2) [2013] UKSC 39 (“Bank Mellat”) at para 74: “it is necessary to determine (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter … In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure.”

165. A similar formulation was provided by Lady Hale in R (Tigere) v Secretary of State for BIS [2015] UKSC 57 (“Tigere”) at para 33: “a. does the measure have a legitimate aim; b. is the measure rationally connected to that aim; c. could a less intrusive measure have been used; and d. bearing in mind the severity of the consequences, the importance of the aim and the extent to which the measure will contribute to that aim, has a fair balance been struck between the rights of the individual and the interests of the community?”

166. The principles applicable to a rationality challenge are so well traversed in authority that it is unnecessary to belabour them by further extensive citation. Now the burden shifts. It is on the defendant to establish each of the four steps of the proportionality test. Put shortly, that the protection plans had a legitimate aim; were rationally connected to that legitimate aim; were the least intrusive measure that could be used to achieve that aim; and that a fair balance (in the Tigere sense) was struck.

167. As to step (1), the “objective” of making the CPPs is to protect the child against future significant harm. No one disputes but that this is a legitimate aim and of sufficient importance to justify interference with Convention rights in principle. However, there is a dispute about nature of the interference that I will determine shortly.

168. On step (2), I received no argument against the suggestion that the protection plans were rationally connected to the objective. By that I mean they make the achievement of the legitimate aim more likely and thus are rationally connected to it. I note that this appeared to be a line of argument in the claimants’ skeleton argument (para 81), but was subsumed under step (3) submissions and it was clarified in the skeleton argument and in oral submission that the only challenges were under steps (3) and (4).

169. Issue 4 is a challenge to step (3). The question is whether the making of CPPs was the least “intrusive measure” consistent with achieving the legitimate aim. Issue 5 is concerned with a step (4) challenge: whether a fair balance has been struck between degree or severity of interference with Convention rights and the extent that the plan would contribute to protecting the children from significant harm. Interference

170. I deal first with a dispute about the nature and scope of interference with Convention rights and which rights.

171. The claimants’ case is that making the children subject to CPPs is an “obvious” interference with their article 8 rights. First, the creation and storage of a plan containing sensitive personal information amounts to such an interference (S and Marper v UK (2009) 48 EHRR 50). Second, the plans authorised certain actions which the family was obliged to accept, including regular social worker visits. This is an interference with the family’s article 8 rights and certainly those of the children.

172. The defendant draws the distinction between the two elements of article 8, family life and private life. It is a legitimate distinction to make. The defendant accepts the “data” basis of article 8 interference with private life. However, the defendant submits that the CPPs do not require the claimants (as opposed to their parents) to do anything. It does not change, limit or prevent their interaction or relationship with their parents. Accordingly, the defendant denies that the claimants’ right to respect to family life is interfered with. However, should the court take a different view, any interference is “modest” in nature.

173. I do take a different view. In my judgment, the measures set out in the CPPs do clearly interfere with family life as we understand article

8. Social workers were to visit the home. They were to speak to the children and the parents about their family life, difficulties and emotions, about how they are coping or not with LF’s traumatic flashbacks or FC’s aggressive outbursts. This is plainly an intrusion into the life of this family and interference with it. Of course, the defendant maintains that such intervention is directed at the legitimate aim of protecting the children from significant harm. That is a different argument from whether each plan interferes with article 8 respect for family life. It does.

174. Therefore, I proceed to an analysis of Issues 4 and 5 on the basis that the CPPs amount to interference with both the family and private life of the children. X. Issue 4 (least intrusive measures)

175. The question is whether the CPPs were the least intrusive measures that could have been used without, to adopt Lord Reed’s formulation, “unacceptably compromising” the achievement of protecting the children from future significant harm. The claimants submit that less intrusive measures were available. This is where the status of the children as disabled children under the Act is significant, it is submitted. The defendant had a duty to provide the children with services aimed at supporting them in their disability and to lead as full and “normal” lives as could be achieved. Indeed, the recommended outcome of the section 47 enquiries in May 2023 was “provision of services (s17)”. The submission is that “the defendant got it right in May and wrong in August”. What followed was “a decrease in terms of the hours of support available … instead increasing the ratio of support to 2:1, without an increase the overall quantum of allocated hours.” FC could have been accommodated elsewhere in a supported and tailored environment. Ultimately, he later was to be so accommodated for several days a week. This could have happened instead of a CPP being made. The services that were contained in the terms of the CPP could all have been provided by a CIN plan. Therefore, making a protection plan was unnecessary. In step (3) terms, a protection plan was not the least intrusive interference.

176. Against this, the defendant contends that such analysis is misconceived. It fails to understand the purpose of CPPs. The making of protection plans was the least intrusive measure available as at August 2023 to protect the claimants. Discussion

177. I have reviewed the purpose of making a protection plan at Issue

2. What is missing from the claimants’ analysis on Issue 4 is that CPPs can only follow from the substantiation of significant harm. It is likely future risk of significant harm that is critical.

178. The situation had materially changed from May 2023. What the defendant may have “got right” in May cannot be simply read across to August if, as here, the circumstances have changed. The change was a deterioration in LF and a significant increase in the risk of significant harm. I have found on Issue 1 that the defendant made a rational decision that the significant harm concerns had been substantiated as at the CPC in August 2023. TF’s mental health was more precarious with the higher risk of carer burn out, entirely understandably given the deteriorations around him and the cumulative strain of his caring activities. LF’s mental health had materially deteriorated. FC’s levels of aggression had increased. SC was terrified of FC’s outbursts and violent conduct. The family was “in crisis”. The safety scaling had significantly increased from a mid-range level of 5 to a scaling of 2, far closer to the zenith of zero which is “danger” zone.

179. The purpose of the plan is to monitor the risk of harm in a structured, sustained and institutionally collective way. It operates as a multi-agency alert. It is clear that, as section 47(3) states, one of the questions the defendant must ask itself is whether it should “exercise any of their [the local authority’s] other powers under this Act”. This includes both section 17 services and accommodation under section

20. To repeat: a CPP itself carries with it no inherent powers. It is not a creature of statute, nor clothed in statutory powers. It exists through statutory guidance. Therefore, whenever a protection plan is made, a local authority must always look to other powers available to it from sources in statute. The use of those other powers, including those deriving from section 17 of the Act does not necessarily render a protection plan an unwarranted intrusion. Conclusion: Issue 4

180. A CIN plan does not come with the built-in necessity for the sustained multi-agency focus on child safety that a CPP does. While it may be suggested that one could have a CIN plan with the addition of formation of a core group with structured meetings and review to assess child safety, that is what a protection plan is, and why it exists. Thus, I am persuaded by the defendant that a CPP was the least intrusive measure that would not unacceptably compromise the achievement of the legitimate aim of protecting the claimants from future significant harm.

181. Therefore, the claimants’ step (3) proportionality challenge fails. XI. Issue 5 (fair balance)

182. The question is whether a fair balance has been struck. To examine that, it will help to assess the elements in the Tigere formulation by Lady Hale: “the severity of the consequences, the importance of the aim and the extent to which the measure will contribute to that aim.”

183. The importance of the aim, its legitimacy, is clear. Following the substantiation of significant harm concerns, the safety of the children and their protection from significant harm had to be of the highest concern to the defendant. There is nothing I have read in the extensive body of material filed in this case by the parties that suggests that the defendant did anything as at August 2023 except treat the safety of these two children as a matter of the gravest importance. They were right to. There were clear, serious and escalating risks to the safety of the children in the latter part of summer 2023.

184. The next question is the extent to which the making of the plans “will [would] contribute” to the effective protection of the children. On this, the claimants submit that the defendant cannot show that being the subject of CPPs “had any benefit for the Claimants whatsoever”. This is because “Nothing was done differently in a way which benefitted the Claimants as a result of their being on CPPs, in particular nothing that was not available to them under the child in need framework.” Against this, the defendant submits that when conducting a fair balance assessment, “the overriding concern must be the need to safeguard and promote the welfare of FC and SC”. That was achieved through a focus on the children’s safety through the making of the plans. On this question of contribution, I am satisfied that the measure of making the protection plans, following the convening of a protection conference, with the formation of the core group and agreement of a range of identified actions, including those under section 17, is a step that would contribute to the protection of the claimants from future significant harm.

185. On the question of severity of consequences, the claimants submit that the making of the plans has adversely impacted LF’s mental health and this has had a knock-on negative impact on her children, inevitably. As a survivor of abuse, it affected LF greatly that a protection plan has been made for each of her children with the initial category of “emotional harm” (August 2023 category, changed in December to emotional abuse). The claimants have filed evidence that after the 7 August conference, LF was highly distressed and taken to A&E, where she was seen by the mental health crisis team. She needed to stay away from home for 48 hours.

186. The defendant submits that there is no “actual harm” caused by the making of the plans that has been established by the claimants. The children were not aware the plans had been made. Discussion

187. The claimants’ key submission on this issue is marked by a failure to engage with the purpose of making a CPP. To the suggestion that nothing was “done differently”, there is an immediate answer: following the convening of a child protection conference, there were multi-agency contributions to the question of the safety of the children, and with the making of the CPPs, the identification of measures to reduce the risk of harm to the claimants and the structured monitoring of that risk, all this was indeed something “done differently”. The plans were the delivery and organisational mechanism for a vital institutional response to the objective substantiation of significant harm concerns.

188. I do not minimise the impact of the making of the plan has had on LF and the associated impact on the claimants, although the children obviously did not know about the plans. I can readily understand that LF was deeply distressed by the making of the plans. However, such negative consequences must be weighed against the benefit of the plans as providing the necessary institutional focus on reducing the identified risk of future significant harm. This is an objective of the highest importance.

189. I find it helpful to reconsider Lord Reed’s codicil to the essential question arising in step (4): “whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure.” The plans materially contributed to the legitimate aim of protecting the children by providing multi-agency focus on this essential question and then structured and necessary monitoring and review of the risks the children were exposed to. Meaningful and fact-sensitive review of risk took place. It is telling that the safety scaling reduced significantly by the November 2023 CPP review from an obviously concerning peak of 2 back to a midlevel figure of

5. It was right at that point to end the plans and that is what the defendant did, further evidence of the reasonableness and responsiveness of the defendant’s approach.

190. I find that the defendant has established that the making of a protection plan in all these circumstances struck the right and fair balance. That is because there are significant and obvious concerns that without the collective institutional structure and focus, which is the essential purpose of the child protection pathway, the objective of protecting the children from significant harm would be unacceptably and unnecessarily compromised. These were not just children in need, but children in need of immediate protection from the risk of significant harm. Conclusion: Issue 5

191. I conclude that the defendant has established that the balance struck was fair. The benefits, the protective effects of the plans, materially outweigh the negative consequences. XII. Conclusion: Ground 2

192. The defendant has established that the making of the plans was the least intrusive measure and the balance struck fair. Therefore, the two challenges to the proportionality of the measure fail. Given that the first two steps of the proportionality analysis are not disputed, the overall article 8 proportionality challenge fails. I have assessed proportionality myself in the sense Shvidler requires. I find that the defendant’s making of each protection plan was a proportionate measure to achieve a legitimate aim of the highest importance. XIII. Disposal

193. I began this judgment with the children and end it with them. Although this litigation has not proceeded in the Family Division, the welfare of these children has been a matter of grave concern to all parties and the court. It is not for me to make welfare decisions. I cannot substitute my view for the view of those charged with safeguarding the children. My task is strictly confined to examining the lawfulness of the defendant’s decisions. No more, no less. I now summarise my conclusions on the issues: Ground 1 • Issue 1: whether the decision that the children are suffering or are likely to suffer significant harm is irrational. Not irrational • Issue 2: whether the making of CPPs is irrational. Not irrational • Issue 3: whether the determination of the harm category as “emotional abuse” is irrational. Not irrational Ground 2 • Issue 1: whether the making of CPPs is the least intrusive measure necessary to achieve the legitimate aim of protecting the children from harm. Each CPP was the least intrusive measure • Issue 2: whether a fair balance has been struck between the severity of the infringement of Convention rights and the importance of the legitimate aim. Fair balance struck

194. Ground 1 fails. Ground 2 fails. Therefore, the claim is dismissed. I will receive submissions on any necessary consequential orders.

195. This judgment has dealt with events that for growing children are already significantly in the past. May I end, therefore, by providing a brief update on the children. The relevant details have been agreed between the parties, for which I am grateful to them.

196. FC attends a residential special school from Monday to Thursday, coming home at weekends and for school holidays. A substantial care package, as agreed at mediation, is in place to support him at weekends and holidays. He has experienced improvements in communication, accessing the community and family life. He is happier and more settled. FC and SC’s relationship as siblings has improved significantly. SC has come out as transgender which has made him feel more comfortable in himself and more confident socially. He has developed new strong friendships and has settled into his specialist school placement.