Orders in family proceedings - Care order - Threshold criteria

Re H-W (Children): Court of Appeal, Civil Division (Lords Justice Ward, Black): 16 September 2011

J, a child, had been born in March 2010 with a 'lobulated mass with multiple bleeding points' at the back of her throat. In March 2010, she had two episodes of bleeding from her nose and throat. It was discovered by x-ray that she also had a fracture to the left clavicle.

After investigation was carried out by medical staff, it was alleged that the parents, or at least the father, had caused the bleeding to occur. At trial, the judge found that, on the evidence available, the bleeding had been caused by the father, in whose care J had been on each of the three occasions when it had occurred.

The local authority put its case on the basis that the throat injury had been caused when the father inserted a finger into J's mouth in a misguided attempt to dislodge mucus from her throat. The father submitted that he had put a finger into J's mouth, but not her throat. It was found at a fact-finding hearing that the father had handled J roughly in the first week of her life, that he, in a state of anxiety and panic, had acted in a dangerous, disproportionate and unreasonable manner, and that his conduct therefore met the threshold criteria of section 31 of the Children Act 1989 for the making of a care or supervision order. The mother sought permission to appeal.

She submitted that the injury to J's throat had not been caused by the father at all. She further submitted that the judge's findings in relation to J's throat were not capable of founding a finding that the threshold criteria had been satisfied in relation to J, and that significant harm had not been established on the facts. They contended that the judge had erred in looking not at the harm itself but at the actions of the father, and that those actions could not found a conclusion that J was likely to suffer significant emotional harm. The application would be allowed.

On the evidence, the mother's arguments as to whether the threshold was satisfied on the basis of the findings that the court had ultimately made would have a real prospect of success on appeal. The matter might also be susceptible to consideration regarding the requirement that the harm or the likelihood of it being attributable to the care given or likely to be given to the child were the order not made not being what it would have been reasonable to expect a parent to give.

The medical evidence was sufficiently complex and uncertain so as to suggest that, in the circumstances, permission ought to be given to appeal against the conclusion that trauma caused by the father was responsible for the throat bleeding. Not all of the unusual symptoms could be explained by a unified diagnosis of something done by the father (see [13]-[15] of the judgment). Permission to appeal would be given on all grounds (see [16] of the judgment).

Kate Branigan QC for the mother. The father did not appear and was not represented.