Child law update
Date: 30 October 2009
Authors: Dorothea Gartland
Issue: Vol 159, Issue 7391
Categories: Features, Child law
The decision of the Court of Appeal in MA, SA, HA (Children by their Childrens’ Guardian) v MA, HA & The City and Council of Swansea [2009] EWCA Civ 853, [2009] All ER (D) 354 (Jul) will be of particular interest to practitioners in regard to the concept of significant harm under the Children Act 1989 (ChA 1989).
As Ward LJ explains in his judgment: “This is, as I understand it, the first time this Court has had to consider when the dividing line between harm and significant harm is established.” The majority decision was to dismiss the appeal by the children’s guardian against the findings of the trial judge that the threshold had not been crossed in care proceedings and the subsequent dismissal of the care proceedings.
The facts
The parents were both from Pakistan and had arrived in the UK and sought asylum. Their claims had been refused.
While in the UK, the mother had three children and at the time of the appeal in June 2009, the eldest daughter M was four years old, her younger brother was 20 months old and the youngest boy was four months old. The care proceedings began when the father had attended at Lunar House in Croydon to obtain identity documents for a child, A, who he said was variously his daughter or niece.
The father was arrested for child trafficking and A was taken into care and made allegations of ill treatment over the six-month period in which she was said to have been living with the family. Over the course of the separate proceedings concerning A, the threshold was found to have been crossed in respect of the significant harm suffered by her and the parents did not seek the return of A to their care.
The identity of A remained unknown, although DNA testing revealed her to be the probable niece of the father.
The local authority invited the court to find that the threshold was met in respect of the parents’ biological children on the basis that all three children were likely to suffer significant emotional and physical harm.
The children were the subject of an accommodation agreement with the local authority pursuant to ChA 1989, s 20 and had been in foster care throughout the proceedings.
At the end of the fact-finding hearing, the judge invited the parties to prepare submissions upon the issue of whether, given the facts, that he had found the criteria of ChA 1989, s 31 in respect of threshold had been crossed.
The judge concluded that it had not been crossed. On that basis the care proceedings were dismissed. The children’s guardian appealed against the decision that the threshold had not been crossed, saying that the judge’s decision was irrational.
The position pending hearing of the appeal
The first point of interest to practitioners is the means by which the children remained accommodated by the local authority, pending the appeal. Wilson LJ explains at para 6 of the judgment that he was phoned by the solicitor advocate for the children for an order holding the children in their foster home, pending his proposed appeal.
The parents were on their way to the foster home to collect the children. As practitioners are aware, the court in this position where interim care orders are in place may make an order under ChA 1989, s 40(1) for a care order to endure until the hearing of the appeal.
Wilson LJ explains that it was not open to him under the High Court’s inherent jurisdiction to require the children to be placed in the care of the local authority or to be accommodated by them by virtue of ChA 1989, s 100(2). In the event he made an injunction against the removal of the children from the foster home.
The parents were persuaded “on good advice, to observe my injunction without pressing their request for an opportunity to challenge its vires” (para 7). The parents’ representatives suggested that the judge could have stayed the proceedings pending hearing of the appeal and could have considered the proceedings on the papers and have found the interim threshold criteria to have been made out and have made an interim care order on that basis.
Lord Wilson LJ states at para 7 that he doubts whether it would have been proper for him to have done that in the circumstances and that “this conundrum must await the court’s resolution on another day”.
The outcome of the appeal
The trial judge had found that the parents’ treatment of A was “shocking”. The judge accepted the contention of the local authority that the parents’ own elder children had been exposed to this ill treatment but did not find that this amounted to significant emotional harm. The judge found that the eldest daughter had been physically abused by both her father and mother but did not find that this amounted to significant harm.
Ward LJ concluded that this was “a paradigm case where this court has to respect the findings and conclusions of an experienced judge and uphold his decision”. (para 63). This view was shared by Hallett LJ.
Wisdom
Wilson LJ expressed his respect for the wisdom of the judge who had heard the case but came to a different view and this is set out at para 35: “For me, the conclusion inexorably driven by the combination of the gross ill-treatment of A and of the ill-treatment of M is that all three children were likely to suffer significant emotional and physical harm.”
Recommendation
Paras 48 to 63 of Ward LJ’s judgment sets out the background to the concept of “significant harm” and, in particular, the view expressed by him at para 54 that: “Given the underlying philosophy of the Act, the harm must, in my judgment, be significant enough to justify the intervention of the State and disturb the autonomy of the parents to bring up their children by themselves in the way they choose.” He also considers the judgment of Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050 —in particular the citing in it from Lord Nicholls in Re H and others [1996] AC 592 [1996] 4 All ER 28.
Endorsement
Ward LJ states that he endorses the judgment of Hedley J, which includes the oft cited passage: “…society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent…It means that some children will experience disadvantage and harm, while other flourish in atmospheres of loving security and emotional stability.” (para 50).
Ward LJ states further that he has come to the conclusion “that Hedley J was wrong to suggest that the threshold of significant harm may be comparatively low” (para 51) before explaining at para 52: “When Lord Nicholls spoke of the threshold being comparatively low, it was having to show no more than a real possibility of harm (as opposed to proving a balance of probability) that made the threshold a low one. But it still has to be a possibility of significant harm.”
Calderdale
This is a useful and interesting case which considers the concept of significant harm. I recommend reading it alongside the more recent decision of RE MGR (A Child) sub nom Calderdale Metropolitan Borough Council v JD, JR, RD & MGR (by her Guardian) [2009] EWCA Civ 942, [2009] All ER (D) 51 (Sep).
In Calderdale the Court of Appeal found that the threshold for likelihood of significant harm had been crossed and the judge’s decision was set aside.
A key factual difference between the two cases is that the Swansea case centred on the difference between the parents treatment of their biological children and their treatment of child A.
The judge in Swansea held that there was a real distinction in the way that the parents treated their own children and the way in which they had treated child A. The view of the majority of the Court of Appeal was that the judge’s conclusions should not be interfered with.
In Calderdale the threshold was found to have been crossed in respect of the mother’s elder child and all of the professional evidence suggested that threshold was crossed in respect of the parents’ younger child on the basis of likelihood of significant harm.
The Court of Appeal stated at para 9: “It is of course by no means theoretically impossible for the court to find the threshold crossed in relation to one child of the mother but not in relation to another…Nevertheless it is accepted by counsel to be unusual for a court to reach opposite conclusions about the threshold in relation to two half siblings in circumstances where the evidence showed such gross parenting deficits as were shown in relation to O as at November 2007 and in circumstances in which the date relevant to the enquiry referable to M was only 14 months later.”
Guidance
These two recent decisions give useful guidance on how to: pursue an appeal where care proceedings have been dismissed and the children are not subject to interim care orders pending appeal; approach the issue of threshold and in particular the concept of significant harm; and decide whether or not threshold for establishing likelihood of harm under ChA 1989, s 31(2) is satisfied.
Dorothea Gartland of 4 Paper Buildings. Website: www.4pb.com.
E-mail: DG2@4pb.com
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