Gavin Howe
Significant harm is a term used in child protection law to describe the threshold that justifies compulsory intervention in family life in the best interests of children. The Children Act 1989 introduced the concept of significant harm, which includes physical abuse, sexual abuse, emotional abuse, and neglect. Section 31(9) of the Act defines 'harm' as the ill-treatment or impairment of health and development, but it does not define what constitutes 'significant' harm. Case law has provided further guidance on this matter, with courts grappling with the issue of future emotional harm and the difficulty of predicting future risk. The Supreme Court decision in re B in 2013 is an example of a significant harm case law, where the court had to decide on the risk of future emotional harm to a child.
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What You'll Learn
Definition of 'significant harm'
The Children Act of 1989 introduced the concept of "significant harm" as a threshold that justifies compulsory intervention in family life in the best interests of children. This threshold is defined in Section 31 of the Act, which allows a Local Authority (LA) or an authorised person (currently only the NSPCC) to apply to the court for an order to place a child in the care or supervision of an LA.
The term "significant harm" refers to situations where a child is suffering or is likely to suffer harm due to "bad" parenting or circumstances beyond parental control. The harm can be in the form of ill-treatment or impairment of health and development, including physical, mental, intellectual, emotional, social, and behavioural aspects. Minor shortcomings or deficits in these areas do not necessarily constitute significant harm unless they are having or are likely to have serious and lasting effects on the child.
The inclusion of the phrase "is likely to suffer" in the Children Act was an important innovation, allowing authorities to take pre-emptive steps to protect children from future harm. This is particularly relevant in cases where a child has not yet suffered any harm, but the court is concerned about the potential risk. In such cases, the court must identify the nature of the harm the child is likely to suffer and determine if the statutory threshold has been crossed.
It is important to note that the decision to remove a child from their family is not taken lightly. The court must be satisfied that there is sufficient evidence ("threshold criteria") proving on the balance of probabilities that the child is suffering or is likely to suffer significant harm. This decision is made by a judge or magistrate, who considers the evidence presented and determines if the harm meets the threshold criteria.
Additionally, each school, local borough and county council, NHS trust, and government department has a safeguarding policy that provides a pathway to recognise and act on suspected significant harm. This ensures that concerns are addressed and that the child's best interests are prioritised.
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Threshold for 'significant harm'
The Children Act 1989 introduced the concept of "significant harm" as the threshold that justifies compulsory intervention in family life in the best interests of children. The Act defines harm as the "ill-treatment or impairment of health and development". This includes physical, sexual, and emotional abuse, as well as neglect.
While the Act provides a definition of harm, it does not define what constitutes "significant". Guidance from the Department of Health states that minor shortcomings in healthcare or minor deficits in physical, psychological, or social development should not require compulsory intervention unless they are cumulatively having or are likely to have serious and lasting effects on the child.
The threshold for significant harm is crucial in determining when to intervene in family life. Section 31 of the Children Act allows local authorities or authorised persons, such as the NSPCC, to apply to the court for an order to place a child in their care or supervision. The court must be satisfied that there is evidence, or "threshold criteria", proving on the balance of probabilities that the child is suffering or is likely to suffer significant harm. This harm must be a result of either "bad" parenting or the child being beyond parental control.
Determining whether the threshold has been met can be challenging, especially in cases where the child has not yet suffered any harm but there is a risk of future harm. In such cases, the court must consider the nature of the potential harm and whether it is likely to occur. The court's task is not to improve on nature but to ensure that the statutory threshold has been crossed and that the child's best interests are served.
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Parental alienation and emotional harm
Parental alienation is a form of child abuse that involves a child aligning with one parent and rejecting the other without valid reasons. This often occurs when the alienating parent manipulates the child by providing false or exaggerated information, causing the child to turn away from the targeted parent. While the term is controversial in legal contexts, experts are advocating for its inclusion in the Diagnostic and Statistical Manual of Mental Disorders (DSM) due to its hidden prevalence and the need to educate clinicians on effective treatment methods.
The impact of parental alienation on the mental health of children and adults has been well-documented. Research has identified various themes, including mental health difficulties, substance use, emotional pain, and coping and resilience. Specifically, participants in studies have reported experiencing anxiety, depression, ADHD, self-harm, eating disorders, body image issues, PTSD, and suicidal ideation. The feelings of grief and loss associated with parental alienation are particularly prominent, as alienated children suffer the loss of their relationship with one parent, their childhood innocence, and their sense of self.
The long-term effects of parental alienation can be detrimental to both the alienated child and the targeted parent. Children may struggle with learning and focusing in school, affecting their academic potential. Additionally, they may experience confusion, low self-esteem, and a sense of guilt and anger. The targeted parent, on the other hand, may feel emotionally harmed, inadequate, and suffer from the anxiety and fear associated with losing their child.
In terms of case law, the Children Act 1989 introduced the concept of "significant harm" as the threshold for compulsory intervention in family life, where harm is defined as the ill-treatment or impairment of health and development. This was further clarified in the Adoption and Children Act 2002, which included emotional abuse as a form of significant harm. While the law previously required proof of existing harm, the Children Act now allows for pre-emptive action to protect children from future harm, including emotional harm. This evolution in legislation acknowledges the complexity of family dynamics and the need for flexibility in addressing frailties and potential risks.
However, there is a concern that authorities and clinicians may not always recognize parental alienation and take appropriate action. Studies have found negligence in outpatient reunification therapy, with clinicians failing to address the underlying causes of alienation. This can result in further harm to both the child and the targeted parent, emphasizing the importance of proper recognition and treatment of parental alienation to ensure the well-being of all involved.
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Categories of 'significant harm'
The Children Act 1989 introduced "significant harm" as the threshold that justifies compulsory intervention in family life in the best interests of children. Physical abuse, sexual abuse, emotional abuse, and neglect are all categories of significant harm. Harm is defined as the ill-treatment or impairment of health and development.
Physical Abuse
Physical abuse may involve hitting, shaking, throwing, poisoning, burning or scalding, drowning, suffocating, or otherwise causing physical harm to a child. Physical harm may also be caused when a parent or carer fabricates the symptoms of, or deliberately induces illness in a child.
Sexual Abuse
Sexual abuse is included in the definition of "ill-treatment" and is a form of non-physical harm. In many cases of sexual abuse, there may be no physical sign or evidence of the abuse. Pregnancy can be a result of sexual abuse.
Emotional Abuse
Emotional abuse is the persistent emotional maltreatment of a child that causes severe and persistent adverse effects on the child's emotional development. It may involve conveying to children that they are worthless, unloved, or valued only insofar as they meet the needs of another person. It may also involve imposing age-inappropriate expectations on children, such as interactions beyond their developmental capability, as well as overprotection and limitations on exploration and learning.
Neglect
Neglect is a criminal offence under the Children and Young Persons Act 1933, defined as a failure to provide adequate food, clothing, medical aid, or lodging for a child. The civil definition of neglect, used in child and family law, is set out in the Children Act 1989 as part of the test of significant harm to a child. This includes emotional neglect, which can cause serious and lasting effects on a child's health and development.
It is important to note that the presence of risk factors, such as family stress, poverty, or racism, does not necessarily indicate significant harm. However, they can impact a child's health, development, and well-being, particularly when there is no other significant adult to respond to the child's needs.
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Recognising and acting on 'significant harm'
Recognising and acting on significant harm is a crucial aspect of safeguarding vulnerable children and their families. The Children Act 1989 introduced the concept of "significant harm" as a threshold to justify compulsory intervention in family life, always acting in the best interests of the child. This threshold ensures that minor shortcomings or deficits in a child's health, psychological or social development do not trigger unnecessary state interference, as protected by Article 8 of the European Convention on Human Rights.
Significant harm is defined as the ill-treatment or impairment of health and development, encompassing physical, sexual, and emotional abuse, as well as neglect. It is important to note that physical abuse, while not explicitly mentioned in the legislation, is inherently understood as a form of ill-treatment. Furthermore, an amendment to the Act recognises that witnessing or hearing the ill-treatment of another can also cause significant harm to a child.
Recognising significant harm can be challenging, especially in cases where the child has not yet suffered any harm but is at risk of future harm. In such situations, the court must decide whether the statutory threshold has been crossed and identify the precise nature of the harm the child is suffering or is likely to suffer. This decision is not made lightly, as it involves balancing the need to protect the child with the rights of parents and the integrity of the family unit.
Acting on significant harm involves following established pathways, policies, and procedures. Each school, local borough and county council, NHS trust, and government department has a safeguarding policy that provides a framework for recognising and responding to suspected significant harm. Social workers play a crucial role in this process, making initial enquiries, organising strategy meetings, and, if necessary, taking steps towards compulsory intervention, such as applying for a Care or Supervision Order. Ultimately, the decision to place a child under the care or supervision of a Local Authority rests with a judge or magistrate, who must be satisfied that there is sufficient evidence of significant harm resulting from "bad" parenting or the child being beyond parental control.
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Frequently asked questions
Significant harm is defined as the ill treatment or impairment of health and development. This covers all forms of abuse, including physical, sexual, and emotional abuse, as well as neglect.
The Children Act 1989 introduced Significant Harm as the threshold that justifies compulsory intervention in family life in the best interests of children.
Factors such as physical abuse, sexual abuse, emotional abuse, and neglect are all considered categories of Significant Harm. Racism and racial harassment can also cause significant harm but are not considered a category of child abuse.
In the UK, a Local Authority (LA) or an 'authorised person' (currently only the NSPCC) can apply to the court for an order to put a child in the care of a Local Authority or under their supervision. The decision is made by a judge or magistrate, who must be satisfied that there is evidence ('threshold criteria') proving that significant harm will occur.
These cases are considered the most difficult. Prior to the Children Act 1989, the law required proof of existing harm, but the Act now includes the element of "is likely to suffer," allowing for pre-emptive steps to protect a child from apprehended harm.
