Legal case notes: Re M (children)(interim care order) [2006] 1 FCR 303, CA.
The facts
The local authority issued care proceedings in respect of six children aged respectively 15, 14, 12, 11, 9 and 2. The Family Proceedings Court made interim care orders in respect of the four youngest children on the basis of a care plan for their immediate removal from their parents. The local authority removed the two-year-old, and placed him with foster carers but, of the remaining three children, two refused to leave home and the third, having been removed, absconded from care, and went home. The local authority gave up its efforts to remove the three children. The Family Proceedings Court transferred the proceedings to the County Court, where they were heard by a circuit judge in May 2005.
The parents applied to have the two-year-old returned to them. The guardian opposed the application on the grounds of what he described as ‘historical concerns’, ie the parents’ previous failure to cooperate with professionals, their minimization of domestic violence, deficiencies in their parenting skills, and the fact that this was a volatile and intermittently violent household. The guardian also argued that, the child having adjusted to the foster placement, the status quo should be maintained until the final hearing.
The local authority, surprisingly, did not rely upon the guardian’s evidence. Its evidence consisted of statements from two social workers, who were not called to give oral evidence. The judge decided that the two-year-old should remain in foster care until the final hearing in March 2006, which was the earliest available date.
The parents appealed against his decision. They argued that there was insufficient evidence of risk of harm to satisfy the statutory test for the making of an interim care order, contained in s. 38(2) of the Children Act 1989, ie that a court should not make an interim care order unless it was satisfied that there were reasonable grounds for believing that the child had suffered or was likely to suffer significant harm, and that the harm or likelihood of harm was attributable to the care given to the child, or likely to be given to him if the order was not made, not being what it would be reasonable to expect a parent to give to him.
Held
The Court of Appeal allowed the appeal. Lord Justice Thorpe pointed out that the guardian had no first-hand experience of the household, and was doing no more than repeat concerns apparently expressed by an unidentified social worker who did not give evidence. The guardian was expressing speculative concerns. There was no concrete evidence that a risk of harm, if the child were returned, had been established.
While Lord Justice Thorpe found the guardian’s concerns perfectly understandable in terms of the long-term effect of volatility and violence on a very young child, he went on to say: ‘It is hard to see the risk of short-term harm unless it be expressed in terms of the possibility of the child being caught in some physical crossfire. There is no evidence of anything of that sort having occurred in the past. It seems to be a relatively insignificant risk. The case is undoubtedly an unusual one. Its singular feature is that the local authority has failed to remove from this volatile family the three children most at risk, given the full history. But the failure to remove those children inevitably diminishes the strength of the local authority’s case for extending the removal of the two-year-old. The judge effectively was approving care plans allowing the older children, about whom the concerns were much more serious, to remain at home, whilst approving the continued separation of the two-year-old, about whom concerns were far more speculative. I do not believe that the very high standards that must be established to justify the continuing removal of a child from home were made good in this case simply on the somewhat speculative evidence of the guardian.’
Moreover, said Lord Justice Thorpe, the judge regarded the risk of harm as a one-sided coin: what was the risk to the child of returning him? The judge had not seen it as a two-sided coin, the other side being, what was the risk of short-term emotional harm to the child in continuing his deprivation from parents, siblings and home? So far as the guardian’s status quo argument was concerned, said Lord Justice Thorpe, reliance on that feature of the case seemed insecure; the status had been achieved in circumstances that were certainly under question, and in dispute. The eight or nine weeks that the child had been parted from his family had to be balanced against the much longer period between the interim care order and the final hearing. In the life of a two-year-old that was a very significant period, and would inevitably impact adversely upon the parents’ prospects of securing the child’s return at the conclusion of the final hearing.
Comment
This case is interesting, not because of its facts which, as the Court of Appeal said, were unusual, but because it stresses the need for the court to guard against falling into the trap of assuming that, just because a local authority seeks the removal of a child, the child must in fact be removed. It is all too easy to find that the s. 38(2) test has been satisfied whenever there is some evidence of significant harm, because it is far more difficult to challenge mere grounds for believing that the child has suffered significant harm, which are subjective, than to challenge assertions of objective fact.
This is one of those rare cases where the court has declined to accept that there were reasonable grounds for believing. The Court of Appeal could have taken the easier course of finding that there were reasonable grounds for believing that the child had suffered significant harm, and then returning him home on the ground that it was not necessary to keep him in foster care, ie that he would have been sufficiently protected by the interim care order itself but, in grasping the nettle and discharging the interim care order, the Court of Appeal has issued a timely reminder of the need for care courts to insist on high standards of proof at all stages of children’s proceedings.
Michael Segal has been a district judge of the Principal Registry of the Family Division since 1985. This is a specialist family court and about two-thirds of its work concerns disputes about children.
The cases presented here aim to help the reader understand better the nature of and the types of decision making within the court system.