Ensuring Equal Protection for Siblings

26 APR 2010

JOHN HAYES, Barrister, Zenith Chambers, Leeds

In circumstances where a child has suffered significant harm attributable to a lack of reasonable care, it is vital that the law permits legal measures to protect not only that injured child but also any uninjured sibling. That, seemingly incontrovertible, proposition is the foundation stone of this article. Protection for the siblings is readily achievable as an objective in circumstances in which the court is able to identify which parent was responsible for causing the harm to the injured child. But what of the situation where the court cannot decide which parent was the perpetrator of the harm? What if there is an unharmed sibling in the household at the time that the injured child suffers harm and the parents then separate? Or what if the parents separate after one child has suffered significant harm and a baby is born after the separation? This article contends that overcoming the threshold test for an unharmed sibling under s 31 of the Children Act 1989 is permissible in such circumstances and that such an understanding of the law is fully supported by the House of Lords' ruling in the conjoined appeals of Re O and N; Re B [2003] UKHL 18, [2003] 1 FLR 1169. But the state of the law in this complex field has been thrown into doubt by para [49] of the Supreme Court's ruling in Re SB (Children) [2009] UKSC 17, [2010] 1 FLR (forthcoming) which states that (absent other grounds for intervention) the threshold in s 31 of the Children Act 1989 will not be crossed in respect of the unharmed sibling if the court has been unable to say which parent was the perpetrator and the parents have separated.

To read the rest of this article, see May [2010] Family Law journal. To log on to Family Law journal Online or to request a free trial click here.

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