Re M (A Minor) (Care Orders: Threshold Conditions)
| Jurisdiction | England & Wales |
| Judgment Date | 1994 |
| Year | 1994 |
| Date | 1994 |
| Court | Court of Appeal (Civil Division) |
BALCORNBE, ROSE, AND PETER GIBSON, L JJ
Care proceedings – threshold conditions for order – interpretation of "is suffering"significant harm – use of present tense – applicable to position at date of hearing – meaning of "likely to suffer significant harm" – s 31(2) of the Children Act 1989.
Child – care proceedings – threshold conditions for order – interpretation of "is suffering"significant harm – applicable to position at date of hearing – meaning of "likely to suffer significant harm" – s 31(2) of the Children Act 1989.
The mother had four children. The three elder children were a boy born in 1984 and twins born in 1987. The father of the twins was not the father of the boy. Neither father retained contact with the children. In 1990 the mother married another man ("the father") and they had a child, a boy, who was born in June 1991. In October 1991 the father murdered the mother. Place of safety orders were obtained and (in October 1991) the local authority placed the three elder children with the mother's cousin, Mrs W, and in August 1992 a residence order in respect of those three children was made in her favour. Mrs W was unable to look after the youngest child at first because of his tender age and because of the attention the elder children required. Consequently, the youngest child was placed with a short-term foster-parent and in May 1992 the local authority commenced proceedings for a care order.
In June 1992 the father was sentenced to life imprisonment with a recommendation that he be deported to Nigeria on his release.
The local authority's application for a care order came before Bracewell, J in February 1993. By that time, the youngest child was no longer able to stay with the short-term foster-parent, but Mrs W felt that she could cope with him and applied for a residence order. At the hearing the local authority supported Mrs W's application for a residence order. The father and the guardian ad litem both supported the making of a care order with a view to the placement of the child outside his natural family.
By s 31(2) of the Children Act a care order may only be made if the court 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 ... 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 him ..."
The Judge held that the relevant time for the words "is suffering" in s 31(2)(a) was the period immediately before the process of protecting the child was put into motion. She further held that if a care order were not made the child was "likely to suffer harm" in that he was a small child with special needs, had no permanent home, and the only person with parental responsibility was the father who could not exercise it appropriately as he was serving a life sentence with an order of deportation on release. Consequently, the Judge held that the "threshold conditions" in s 31(2) were satisfied on the facts and she made a care order and dismissed Mrs W's application for a residence order.
Mrs W appealed.
Held– allowing the appeal: The use of the present tense in the phrase "is suffering significant harm" in s 31(2)(a) of the Children Act 1989 made it clear that the harm must be being suffered at the time at which the court was considering whether or not to make a care order. The words "is suffering" were in the continuous present. In deciding whether the child was suffering significant harm at the date of hearing the court would have to be satisfied that the relevant state of affairs causing the harm had existed in the past and there was a likelihood that it would continue into the future. It was not enough that something had happened in the past which caused the child to suffer harm of the relevant kind if before the hearing the child had ceased to suffer such harm. However, it would remain open to the court to be satisfied that the child "is likely to suffer" significant harm. In the present case the Judge had erred in finding that the words "is suffering" related to the period irnmediately before the process of protecting the child was first put into motion. There was no evidence to justify a finding that the child was suffering significant harm of the relevant kind at the date of the hearing. Further, the evidence did not justify a finding that the child was likely to suffer significant harm if a care order were not made. Although the child could no longer stay with the short-term foster-parent, the family home offered by Mrs W was available to him; and if the child went to live with Mrs W there was nothing to suggest that he would suffer significant harm attributable to the care likely to be given to him by Mrs W if the care order were not made, not being what it would be reasonable to expect a parent to give him. Accordingly, the care order would be set aside and a residence order made in favour of Mrs W.
Re D (A Minor) [1987] AC 317 considered.
M v Westminster City Council [1985] FLR 325 distinguished.
Northamptonshire County Council v S[1993] 1 FCR 351 overruled.
Decision of Bracewell, J reversed.
Statutory provisions referred to:Children Act 1989, s 31(2).
Children and Young Persons Act 1969, ss 1 and 28.
Cases referred to in judgment:D (A Minor), (1987) 151 JP 313; Re [1987] AC 317; [1986] 3 WLR 1080; [1987] 1 All ER 20.
M v Westminster City Council [1985] FLR 325.
Northamptonshire County Council v S[1993] 1 FCR 351; [1993] Fam 136; [1992] 3
WLR 1010.
W (An Infant), Re [1971] AC 682; [1971] 2 WLR 1011; [1971] 2 A11 ER 49.
Rodger Hayward-Smith, QC and Laura Harris for Mrs W.
Elizabeth Anne Gumbel for the father.
Joanna Dodson, QC and Mhairi McNab for the guardian ad litem.
Sandra Graham for the local authority.
LORD JUSTICE BALCOMBE.On 30 July 1993 we allowed an appeal from a care order made on 12 February 1993 by Bracewell, J under s 31 of the Children Act 1989 saying we would give our reasons later. This we now do and this is the Judgment of...
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