Care orders – Interim orders – Likelihood of significant harm – Weight of evidence

Re MGR (a child) sub nom Calderdale Metropolitan Borough Council v (1) JD (2) JR (3) RD (4) MGR (by her guardian): CA (Civ Div) (Lords Justice Wilson, Sullivan): 9 September 2009

The appellant local authority appealed against a decision refusing to find that the threshold for making a care order in relation to a child (M) set by section 31(2) of the Children Act 1989 had been crossed.

M was an eight-month-old girl. She had been taken into interim care just after her birth. She had an older half-sister (S) who was also the subject of care proceedings. S was two years old. The girls shared the same mother but had different fathers. S had been taken into interim care when she was about two months old. The proceedings in respect of the children were consolidated. The mother conceded in the case of S that the threshold for the making of a care order had been crossed on the basis that S was likely to suffer significant physical and emotional harm. The parents made no such concession in the case of M. The care plans for the girls were that they should be placed for adoption. The judge decided that, in respect of M, the threshold was not crossed, with the result that she should return to the parental home. In relation to S, he held that the parents had made such progress in stabilising their lives since S’s removal that, on a trial basis, she should be restored to their care under the auspices of a care order. He adjourned the hearing in relation to S for the local authority to consider amending her care plan to provide for rehabilitation.

Held: (1) It was not impossible for the court to find the threshold crossed in relation to one child of the mother but not in relation to another. In the instant case the dates at which the threshold was required to be crossed were different. Nevertheless, it was unusual for a court to reach opposite conclusions about the threshold in relation to two half-siblings in circumstances in which the evidence showed such gross parenting deficits as were shown in relation to S when she was removed from the mother and in which the date relevant to the enquiry in M’s case was only 14 months later.

(2) The judge’s conclusion that the changes in the parents since S’s removal were sufficient to justify her attempted rehabilitation into their home was not a conclusion shared by any of the four professionals who gave evidence. Their evidence was that the changes were too insubstantial to warrant rehabilitation. That was therefore evidence suggesting that at the relevant date M had been likely to suffer significant harm. The likelihood of significant harm for the purposes of section 31(2) of the Children Act 1989 did not mean that it had to be more probable than not, only that it had to be a real possibility or one that could not sensibly be ignored, Re H (minors) (sexual abuse: standard of proof) [1996] AC 563 HL followed. Although it had to be established on the balance of probabilities that there were facts from which a real risk of significant harm could be inferred, the judge’s explanation of his conclusion indicated that he had wrongly equated likelihood with probability, Re B (children) (sexual abuse: standard of proof) [2008] UKHL 35, (2009) 1 AC 11 considered. Furthermore, in his judgment the judge had referred to the placement of both children with the parents for a trial period of six months and the need for the submission of amended care plans. That indicated that he had forgotten the effect of his conclusion in relation to the threshold in M’s case and that he considered that the safety of M, as well as of S, required a degree of continuing local authority control following what should be only a trial placement with the parents. That conclusion of the judge and the unanimous professional opinion that it was too dangerous to restore either of the children to the parents at all were consistent only with a conclusion that in the case of M there was a likelihood that she would suffer significant harm if placed with the parents otherwise than under a care order.

(3) The weight of the evidence led to the conclusion that the threshold was crossed in M’s case. The judge’s decision was set aside and an interim care order made.

Appeal allowed.

Michael Harrison QC, Joanna Cross (instructed by in-house solicitor) for the appellant; Sarah Singleton QC, Catherine Mason (instructed by Baker Brown (Halifax)) for the first respondent: Roger Bickerdike (instructed by Willscroft (Bradford)) for the second respondent: Sally Beaumont (instructed by Makin Dixon (Halifax)) for the third respondent; John Hayes (instructed by Finn Gledhill (Halifax)) for the fourth respondent.