Re MA (Care Threshold)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wilson,Lord Justice Ward |
| Judgment Date | 31 July 2009 |
| Neutral Citation | [2009] EWCA Civ 853 |
| Docket Number | Case No: B4/2009/1068 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 2009 |
[2009] EWCA Civ 853
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, FAMILY DIVISION, SWANSEA DISTRICT REGISTRY
Mr Justice Roderic Wood
Before: Lord Justice Ward
Lord Justice Wilson
and
Lady Justice Hallett
Case No: B4/2009/1068
LOWER COURT NO: CF08C05638
Mr Graham Jones, solicitor-advocate, partner in Smith Llewelyn, Swansea, appeared for the Appellants, the children by their guardian.
Mr Charles Geekie QC and Miss Lucy Leader, instructed by Peter Lynn and Partners, Swansea, appeared for the First Respondent, the father.
Miss Susan Jenkins, instructed by Goldstones Ltd, Swansea, appeared for the Second Respondent, the mother.
Miss Lorna Meyer QC and Miss Kathryn Taylor, instructed by the legal department of the local authority, appeared for the Third Respondent, the local authority.
Hearing date: 22 June 2009
Lord Justice Wilson:
A: Introduction
Three children, by their Children's Guardian, appeal against an order made in care proceedings by Mr Justice Roderic Wood in the High Court, Family Division, Cardiff District Registry, on 21 May 2009. The order against which they appeal is the dismissal of the care proceedings brought in relation to them by the City and County of Swansea (“the local authority”). The judge made his order at the conclusion of a hearing at which he had been invited to find facts and to determine whether the threshold to the making of care orders in relation to the children, set by s.31 of the Children Act 1989 (“the Act”), had been crossed. On 18 May 2009, following a hearing between 27 April and 7 May which had endured for six days, the judge handed down a long and careful judgment, by which he determined the factual issues raised before him. At the end of that judgment he indicated that, three days later, he would conduct a hearing at which he would consider written and oral submissions upon the issue whether the facts which he had found should, or should not, lead to a conclusion that the threshold set by s.31 was crossed. At the hearing on 21 May, following his receipt of such submissions, the judge concluded that the threshold was not crossed. Such were the circumstances in which, of course, his dismissal of the proceedings became inevitable. The guardian's appeal is against the judge's conclusion that the threshold was not crossed. She contends that, in the light of the findings which he had made, it was irrational for the judge to decline to conclude that, for the purposes of the section, the oldest child had suffered significant harm, both physical and emotional, that the middle child had suffered significant emotional harm and that all three children were likely to suffer significant harm, both physical and emotional.
The first and second respondents to the proceedings and to the appeal are the father and mother of the children and they oppose the appeal. The third respondent is the local authority and, with one reservation, they support the appeal. The reservation is that they did not contend before the judge, and do not contend before this court, that the physical harm found to have been suffered by the oldest child was sufficient to be described as significant and was thus, of itself, sufficient to enable the threshold to be crossed in relation to her. But the various other ways in which the guardian contends that the threshold was crossed reflect the local authority's submissions to the judge and represent the basis upon which, according to them, we should allow her appeal.
The parents bring cross-appeals. They ask this court to hold that it was plainly wrong for the judge, in his first judgment, to make findings that the father, and to a lesser extent, the mother, had perpetrated physical assaults upon the oldest child. When I have laid the ground for consideration of the appeal and the cross-appeals, it will be logical for me to consider the latter first; for any setting aside of the judge's factual findings would reduce the material available to be considered in survey of the threshold.
The three children are M, a girl, who was born on 10 September 2005 and so is now aged nearly four; S, a boy, who was born on 17 November 2007 and so is now aged 20 months; and H, a boy, who was born on 21 March 2009 and so is now aged four months.
But there is another child who is not directly the subject of the appeal or cross-appeal but who plays, potentially, an almost crucial role in the history. That child is a girl, A. Her date of birth is unknown but she is believed now to be aged five or six. Between January and July 2008 A lived with the parents and their two biological children then born. As I will explain, the identity and other background circumstances of A are shrouded in mystery. A was also the subject of the care proceedings before the judge and she was represented by a Children's Guardian different from the guardian who represents the three appellant children. The parents conceded that, in the case of A, the threshold to the making of a care order was crossed, notwithstanding that in the event the local authority established material relevant to the crossing of the threshold in her case which went far beyond that which had formed the subject of their concession. In A's case the judge proceeded to continue a regime of interim care orders, pursuant to which the local authority still currently hold her in short-term foster care. The judge also indicated that he saw no likelihood that it would be appropriate for A ever to be returned to the care of the parents. They bring no appeal against the judge's determinations in respect of A.
The local authority issued the care proceedings in relation to M and S on 16 December 2008. But they had been accommodated by the local authority under s.20 of the Act since 11 September 2008 and, notwithstanding issue of the proceedings, they continued only to be accommodated rather than to be the subject of interim care orders. Equally, three days after his birth, H was also accommodated; and he remained accommodated notwithstanding the issue of additional proceedings in respect of him. It follows that, up to the point when, on 21 May, the judge dismissed the care proceedings relating to the three children, their status in the local authority's short-term foster home was only as children accommodated under s.20. Their status caused a problem for me when, within hours of the dismissal, Mr Jones, the admirable solicitor-advocate for the children, applied to me on the telephone for an order holding the children in the foster home pending his proposed appeal. He explained to me that, unsurprisingly in the light of the dismissal, the parents were at that moment travelling to the foster home with a view to collecting the children; and he sought an order which would preclude their doing so. The customary order made, whether by the trial judge or by this court, pending an appeal against the dismissal of care proceedings in relation to a child already in interim care is an order under s.40(1) of the Act, namely a care order to endure until the determination of the appeal. But, pursuant to s.40(1)(b), such an order can be made only where the child was, at the time of dismissal, the subject of an interim care order. I was also well aware that, by virtue of s.100(2) of the Act, the inherent jurisdiction of judges of the High Court did not enable me to require the children to be placed in the care of the local authority or to be accommodated by them. In the event I issued a bare injunction, which I claimed not to fall foul of s.100, against the removal of the children from the foster home.
Not altogether surprisingly both Mr Geekie QC on behalf of the father and Mr Tolson QC, who represented the mother before the judge and who, while not appearing before us, had, with Miss Jenkins, drafted the skeleton argument on the mother's behalf for our use, in due course challenged my claim that my injunction did not fall foul of s.100. There was, however, a realistic recognition by both leading counsel that, in one way or another, this court must be able to keep children in care pending appeal even if they have been only accommodated. They suggested that I might have stayed the judge's dismissal of the care proceedings, with the result that the proceedings would have continued in existence and that, within their continued existence, I might myself have made an interim care order in relation to the children. I must admit to doubt whether, sitting at my desk and quickly considering, by reference to a minimal amount of material, the initial stage of an appeal against dismissal, it would have been proper for me, there and then, to hold that the threshold to the making at any rate of interim care orders was crossed and that in all the circumstances I should proceed to make them. In the event this conundrum must await this court's resolution on another day. With understandable reluctance, the parents have been persuaded, on good advice, to observe my injunction without pressing their request for an opportunity to challenge its vires. In this respect it is particularly unfortunate that more than one month has elapsed between the hearing of the appeal and the delivery of our judgments; such is, in the circumstances, a significant delay for which I take personal responsibility and apologise.
B: The Background
The parents are citizens of Pakistan...
To continue reading
Request your trial
-
Appeal By Ecc Against Gd
...arises (In re H [1996] AC 563; MA, SA and HA (Children, by their Children’s Guardian) v MA, HA, The City and County of Swansea [2009] EWCA Civ 853). [21] There was much discussion before us about the potential problems which would arise if, as in this case, the sheriff required the petition......
-
Re B (A Child) (Care Order: Proportionality: Criterion for Review)
...(ancillary proceedings: lump sum)[1998] 1 FCR 213, [1998] 1 FLR 53, CA. MA (children) (care order: likelihood of significant harm), Re[2009] EWCA Civ 853, [2010] 1 FCR 456, [2010] 1 FLR 431. Miss Behavin’ Ltd v Belfast City Council[2007] UKHL 19, [2007] 3 All ER 1007, [2007] 1 WLR 1420. Neu......
-
Re M (Special Guardianship Order: Leave to Apply to Discharge)
...Order), In re [2007] EWCA Civ 54; [2007] 1 FLR 819, CAThe following additional case was cited in argument:MA (Care Threshold), In re [2009] EWCA Civ 853; [2010] 1 FLR 431, CAAPPEAL from Judge Vincent sitting in the Family Court at OxfordIn July 2017, at the conclusion of care proceedings br......
-
B (A Child)
...only very obliquely, to whether harm is significant for the purposes of the subsection; and he cites observations by Ward LJ in Re MA (Care Threshold) [2009] EWCA Civ 853, [2010] 1 FLR 431, at para 54, that, although it has more relevance to the welfare stage of the inquiry, article 8 "doe......
-
Care and Supervision Proceedings
...objective, measured against a reasonable standard of parenting. However, the definition became problematic in Re MA (Care Threshold) [2009] EWCA Civ 853. More recently, in Re B (A Child) [2013] UKSC 33, there were important points made surrounding threshold and the terms ‘significant’ and ‘......
-
The concept of significant harm in law and practice
...for a heightened standard of proof. Case law has also had to judge on the meaning of ‘significant’, most recently in the case of Re M [2009] EWCA Civ 853. This is a complex case concerning a three-year-old girl (M), a boy of 11 months and a baby (H). In separate proceedings, child A (who li......