Re G (Children) (Care Order: Threshold Criteria)
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE HALE,LORD JUSTICE JONATHAN PARKER,LORD JUSTICE ALDOUS |
| Judgment Date | 22 June 2001 |
| Neutral Citation | [2001] EWCA Civ 968 |
| Docket Number | Case No: B1/2001/1031 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 June 2001 |
[2001] EWCA Civ 968
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM GUILDFORD COUNTY COURT
HIS HONOUR JUDGE COOK
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Aldous
Lady Justice Hale and
Lord Justice Jonathan Parker
Case No: B1/2001/1031
Ms L Davis (instructed by Local Authority) for the Appellants
Mr P McCormick (instructed by Messrs Clearey's & Co) for the 1 st Respondent (Mother)
Mr A Ailes (instructed by Messrs Hawke & Co) for the 1 st Respondent (Mother) and 2 nd Respondent (Father)
Mr B Kennedy (instructed by Messrs Groves Coggan) for the 3 rd Respondents by their Guardian ad Litem
This appeal raises an issue of some practical importance in proceedings for care and supervision orders under the Children Act 1989: what have the local authority to be in a position to prove at the time when they make the application? To what extent can they rely upon evidence, which emerges, or events, which take place between the date of the application and the final hearing?
These proceedings concern two children: D, born 16 April 1997, now aged four; and E, born 28 June 2000, now nearly a year old. The case was heard over eight days in January and February by His Honour Judge Cook in the Guildford County Court sitting at Staines County Court. On 26 April 2001 he declined to make care orders in respect of either child. In relation to D he found that the threshold criteria for making either a care or a supervision order set out in section 31(2) of the Children Act 1989 had not been proved. In relation to E, he found that the threshold criteria were made out, but made a supervision order instead of a care order. The local authority appeal, with the permission of the trial judge, on the point of law; they also appeal, with the permission of Thorpe LJ, on the merits. E's parents apply for permission to cross appeal against the finding that the threshold was made out in her case.
The mother of both children is KG. D's father was her second husband, DG, who died in May 2000. Hampshire County Council has been involved with the family for some time. The mother has a moderate learning disability and needs their help and support in caring for her children. D was particularly vulnerable as he was born prematurely and ill. He was placed on the Child Protection Register shortly after he suffered a cigarette burn inflicted by his father in January 1998. The father was prosecuted and excluded from the home as a condition of bail. These proceedings were not brought until 14 June 1999. The mother was then living with another partner, BA, but the local authority did not seek to remove D from home. The Guardian ad Litem advised that an interim care order was unnecessary. An interim care order was eventually obtained from the Family Proceedings Court on 22 September 1999. Even so, D was not removed from home until 26 October 1999 after an altercation when BA found the mother in bed with another man, MO. D has been in foster care ever since, with regular (supervised) contact with his mother.
During those proceedings, while pregnant with E, the mother moved from Hampshire to Surrey. E's father was originally assumed to be BA but later turned out to be MO. Surrey County Council held a pre-birth case conference and applied to the court the day after E was born. An interim care order was granted on 5 July 2000. She was discharged from hospital into foster care (with different foster parents) on 8 July 2000, with contact four times a week with her mother.
The two proceedings were consolidated and transferred to the county court. The two local authorities share the same representation. Surprisingly, however, the parents do not. The solicitors acting for the mother in D's case no longer have their franchise to act in these proceedings. The mother not surprisingly wanted them to continue to act for her. The Community Legal Service permitted them to do so, but not to act for her and the father in E's case. Fortunately the children share the same Guardian ad Litem.
When the case came on for final hearing, the authorities' care plan for both children was adoption, and it was hoped that they would be placed together. The guardian in his report considered adoption appropriate if the threshold criteria were made out. The court heard evidence from a clinical psychologist, Mr Crowther, a consultant child psychiatrist, Dr Tylden, and Ms Cooper on behalf of Reading Safer Families, as well as from the social worker, parents and guardian. It is to be inferred that the oral evidence put a somewhat different complexion on matters because by the end of the hearing the guardian was making no recommendation as to the orders should the threshold be proved. Furthermore he now supports the judge's refusal to make the care orders sought.
The Threshold
Section 31(2) of the Children Act 1989 provides:
'A court may only make a care order or a supervision order if it is satisfied -
(a) that the child concerned is suffering, or is likely to suffer,
significant harm; and (b) that the harm, or likelihood of harm, is
attributable to
(i) the care given to the child, or likely to be given to him if the
order were not made, not being what it would be reasonable to
expect a parent to give to him; or
(ii) the child's being beyond parental control.'
The purpose of the threshold is to prevent the state interfering in the upbringing of children simply on the basis that it could do better than the parents. The Review of Child Care Law (1985, HMSO) put it this way, at para 2.13:
' … "the child is not the child of the state" and it is important in a free society to maintain the rich diversity of lifestyles, which is secured by permitting families a large measure of autonomy in the way in which they bring up their children. This is so even, or perhaps, particularly, in those families who through force of circumstances are in need of help from social services or other agencies. Only where their children are put at unacceptable risk should it be possible compulsorily to intervene. Once such a risk of harm to the child has been shown, however, his interests must clearly predominate.'
Once the threshold is crossed, the court has to decide what order, if any, to make. In doing so, section 1 of the 1989 Act applies: the child's welfare is the paramount consideration (s 1(1)), a checklist of factors is to be considered in determining his welfare, including the options available to the court (s 1(3)), and the court is not to make any order unless to do so will be better for the child than making none (s 1(5)). It is common ground that the court can take into account all the information available at the date of the hearing in deciding what order to make if the threshold has been crossed: the order is clearly looking to future, and it would be contrary to child's best interests to turn a blind eye to relevant matters occurring after the proceedings began.
Equally, however, it is common ground that the date at which the threshold has to be crossed is when the local authority first intervened to protect the child: that is, either the date of the application or, if child protection measures (police protection or an emergency protection order) have been continuously in place since before then, the date when those began: see Re M (A Minor)(Care Order: Threshold Conditions) [1994] 2 AC 424. In that case, the child's father had murdered the mother. The trial judge found that at the time when the protection process began the child was suffering significant harm, 'in that he has suffered ill-treatment by being permanently deprived of the love and care of his mother when she was murdered in his presence … I am also satisfied that if an order were not made the child would be likely to suffer significant harm in that he is a small child with special needs, has no permanent home, and the only person with parental responsibility is the father who is unable to exercise it appropriately … ' The Court of Appeal held that the appropriate date was the date of the hearing. By then the child had been in foster care for 16 months and there was nothing to indicate that he was still suffering significant harm or that he was likely to do so as there was a suitable home available with his mother's cousin. The House of Lords allowed the appeal. Lord Templeman put the matter thus, at p 440B to D:
'Restrictions on the right of a local authority to apply for a care order were imposed by section 31 to prevent a local authority interfering too readily with the rights and responsibilities of parents. A local authority cannot apply for a care order unless at the date of the application the child is suffering or is likely to suffer significant harm. Once the local authority has ground for making the application the court has jurisdiction to grant that application. If between the date of the application and the date of the judgment of the court, circumstances arise which make a care order unnecessary or undesirable, the local authority can withdraw its application for a care order or the court can refuse to make a care order.'
Re M was concerned with both the actual and likely harm limbs of section 31(2)(a). Although much of the discussion was directed at when the condition that the child 'is suffering' significant harm must be met, the case also raised the problem of likely harm: by the time of the hearing his father was serving his sentence but alternative loving homes were available with the foster mother or with his mother's cousin. It would be odd indeed if actual and likely harm had to be judged at different dates. Further, the policy...
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