Re MA (Care Threshold)

JurisdictionEngland & Wales
JudgeLord Justice Wilson,Lord Justice Ward
Judgment Date31 July 2009
Neutral Citation[2009] EWCA Civ 853
Docket NumberCase No: B4/2009/1068
CourtCourt of Appeal (Civil Division)
Date31 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

Between
MA, SA and HA (Children, by Their Children's Guardian)
Appellants
and
MA
First Respondent
and
HA
Second Respondent
and
The City and County of Swansea Third
Respondent

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

Lord Justice Wilson:

A: Introduction

1

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.

2

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.

3

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.

4

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.

5

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.

6

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.

7

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

8

The parents are citizens of Pakistan...

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