Re M (A Minor) (Care Proceedings: Appeal)
| Jurisdiction | England & Wales |
| Judgment Date | 1995 |
| Year | 1995 |
| Date | 1995 |
| Court | Court of Appeal (Civil Division) |
NOURSE AND WAITE, L JJ
Care proceedings – serious allegations of ill-treatment rejected by the court – threshold criteria met on other grounds – whether Judge applied correct test in deciding what order should be made.
Care proceedings – threshold criteria proved – local authority seeking care order – Judge making residence order in favour of mother – whether Judge correct to do so.
The local authority brought care proceedings in respect of a child, now aged 6, who had been admitted to hospital for emergency treatment. She was underweight, emaciated, severely dehydrated, and there was multiple bruising on her body. She suffered renal failure and a duodenal haematoma. The local authority alleged that this was caused by a punch from the mother's cohabitee. The mother and cohabitee suggested that it was caused by a fall. The final hearing lasted 25 days with the local authority seeking a care order, the maternal grandparents (supported by the guardian ad litem) seeking a residence order, and the mother seeking a residence order for the child to live with her.
The Judge rejected the most serious allegations concerning ill-treatment but found the threshold criteria met on the basis of the mother's failure to call in the doctor at an earlier stage and the cumulative concerns about the child's welfare. The Judge declined to make a care order and in order to give the mother and her cohabitee a chance as parents, he made a residence order in favour of the mother on condition that she continued to live with the cohabitee's parents. The local authority, guardian ad litem, and the maternal grandparents appealed.
Held – dismissing the appeal: The local authority and those who supported them had to establish the primary facts of past harm on the balance of probabilities. But the more serious the allegation the more convincing was the evidence needed to tip the balance in respect of it. The Judge had correctly directed himself in every respect and he had applied those tests correctly. He was entitled on the evidence to find that the more serious allegations were not proved and having done so he had then gone on to consider not only the mother's failure to seek medical help but also the cumulative effect of her shortcomings when assessing the risk involved in a return home.
Statutory provisions referred to:Children Act 1989, s 31.
Cases referred to in judgment:H v H; K v K (Child Cases: Evidence) [1989] FCR 356.
Newham London Borough Council v AG[1992] 2 FCR 119.
M (A Minor) (Order Pending Appeal), Re[1994] 1 FCR 1.
W (Minors) (Wardship: Evidence), Re [1990] FCR 286.
Estella Hindley, QC and Lorna Meyer for the local authority.
Rodger Hayward Smith, QC and Elizabeth Szwed for the mother.
Anthony Barker, QC and Sally Hickman for the grandparents.
Julia Macur for the step-father.
David Hershman for the guardian ad litem.
LORD JUSTICE WAITE.This is the judgment of the court, to which both its members have contributed.
The child concerned in this appeal, is now 6 years of age. On 1 January 1993, when she was 5 years and 7 months old, she was admitted to hospital in Birmingham for emergency treatment. She had numerous bruises, was seriously underweight, and was found to be suffering from a duodenal haematoma – a form of injury which could only have been caused by a violent blow or a heavy fall. She was living at the time in the care of her single parent mother and the mother's boyfriend (who is not the child's natural father). Suspicion that her weight loss and injuries might be due to their ill-treatment led to proceedings against the parents under the Children Act 1989 under which the local authority obtained interim care orders enabling them to place the child with temporary foster-parents with whom she still remains pending the outcome of this appeal.
Grave though the case looked against the mother and her boyfriend, they both denied from the outset responsibility for any deliberate ill-treatment of the child. Medical evidence gradually emerged to lend at least some support to their denials. The bruising might be attributable to the child's exceptionally active and adventurous nature; the famine to anorexic side-effects from the prophylactic treatment she was receiving for immunity from tuberculosis; and the duodenal haematoma to a fall she had suffered when scrambling in the bathroom a few days before her admission.
The social workers remained convinced, however, that the child had been the victim of serious and repeated abuse in the mother's household. They pressed on with their application for a final care order. That was opposed by the mother, who made a cross-application for a residence order in her own favour. The child's guardian ad litem supported the local authority in their application for a care order, subject to the qualification that the child should be placed with her maternal grandparents in Scotland. The maternal grandparents had themselves taken out an application for a residence order. Initially they sought to adopt a neutral attitude, but now they join with the local authority and the guardian ad litem in contesting the Judge's order.
The case thus developed into a five-sided proceeding, with the local authority, the mother, her boyfriend, the maternal grandparents and the child herself (acting by her guardian ad litem) all being in due course joined as parties and separately
represented. The documents and the witnesses (both medical and lay) were numerous and the evidence wide-ranging. The High Court hearing before Ward, J began in Birmingham, where it substantially overran the original 10-day estimate and had to be concluded in London. It occupied a total of 25 days. At its conclusion the Judge, deferring his decision for only 24 hours in recognition of the urgency of the case, gave an oral judgment that was for all practical purposes extempore. It took over five hours to deliver and runs to 84 pages of transcript. It is acknowledged by all parties to have been detailed, careful and comprehensive.
In its most serious aspects, the local authority's case failed. The Judge was not prepared to find that either of the child's carers had beaten or starved her. He criticized the mother, however, for failing to call in the doctor any earlier than she did – a failure which he regarded as sufficiently serious to justify a finding that the child was a child suffering significant harm within the meaning of s 31(1) of the Act. The evidence in the case as a whole had, moreover, left him with a sufficient sense of foreboding about the future safety of the child in the mother's care to lead him to make a finding (for the purposes of the same subsection) that the child was a child likely to suffer significant harm. The local authority had thus achieved at least a degree of success. in that they persuaded the Judge that the statutory "threshold" under s 31 had been passed, and that he accordingly had jurisdiction to make a care order. They still had to persuade him, however, as a matter of discretion, that this was a case in which a care order was indeed required in the child's best interests. In this respect they failed. The Judge thought that the child's best interests required him – despite the misgivings he felt in a case that he said had probably caused him more difficulty than any other he could ever remember – to give the parents a chance. He accordingly refused the care order sought by the local authority and the residence order sought by the maternal grandparents, and granted the mother's application for a residence order. He made it subject, however, to a condition that she should continue to reside in her present home, which is in the household of her boyfriend's parents.
The local authority do not seriously dispute that it was open to the Judge to make that decision, given the very limited findings which he had been prepared to make against the parents. Their real complaint, in which they are supported by the child's guardian ad litem and now by the maternal grandparents, is that the Judge was wrong to have rejected the more serious allegations in the local authority's case. He ought, they say, to have accepted the whole of a case which would, if established, have involved findings so serious that any return to...
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