MA & Ors (Children), Re

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.

The parents are citizens of Pakistan and are cousins. The father, who comes from a wealthy family and is well educated, is now aged 42; but the mother, who comes from a poorer and less educated side of the family, is now aged 26. They were married in Pakistan and arrived in the UK in May 2005, where they have remained. It follows that all three children were born in the UK. Following arrival, the parents claimed asylum; but their claims were refused and their respective appeals were dismissed. With their dependents, they thus remain in the UK illegally and, subject to any further application to the Secretary of State, they remain liable to be removed at any time.

The basis of the claim of the parents for asylum was that each was homosexual; that their marriage was the product of cultural and family expectations; that the basis of it was that they would not have a sexual relationship together and would independently pursue homosexual relationships if they wished to do so; and that their homosexual orientation would lead to their persecution if returned to Pakistan. The immigration judges who dismissed the parents’ appeals appear to have rejected, as had the Secretary of State, the allegation of the parents that each was homosexual. Within their claim for asylum, as before the judge in the present proceedings, the parents contended that the conception of M followed the only act of sexual intercourse which had ever taken place between them. The judge had also to consider the conception of the two further children born after the dismissal of the asylum appeals. The parents’ evidence was that, in both cases, the sperm of the father was artificially inseminated inside the mother, in the case of S by a Pakistani doctor and in the case of H by the mother herself with the aid of equipment which the doctor had left for her use. The judge also had to consider references in the mother’s medical notes to prescriptions for contraception and to counselling in that regard. In the event, perhaps surprisingly, the judge, suspicious though he declared himself to be, declined to reject the parents’ claims of homosexuality or their account of how the two younger children had been conceived.

Perhaps the judge’s refusal to make findings in the above respects was influenced by his conclusion that married life between the parents was miserable and marked by a substantial physical and emotional separation between them, reflected by the fact that the mother spent substantial periods alone in her room, indeed in bed. There was also substantial evidence that the mother had serious mental health problems. Her medical notes for the four years during which the parents had lived in England and Wales revealed their extent. The mother claimed to have suffered both visual and auditory hallucinations and the judge found, in accordance with a report by her treating psychiatrist, that she suffered periods of psychotic depression but, with the aid of medication, was currently in a period of mental stability.

It was the mother’s case before the judge that she wished to separate from the father and, whether in the UK or in Pakistan, to resume sole care of the three children. The local authority, for their part, stressed that, notwithstanding their claim that the threshold to the making of care orders was crossed, they had not, for their part, eliminated the possibility that it might prove safe to reunite the children with the parents or, if they were to separate, with the mother.

There was evidence that by 3 January 2008 A was living with the parents and the two children then born. She continued to live with them until 8 July 2008. On 2 July the father had presented both A and M to a primary school near Swansea. He satisfied the school about M’s identity but had no documentation with which to do likewise in respect of A. Thus, on 8 July, he took A to Lunar House, Croydon, where he presented her first as his daughter and then as his niece and in respect of whom he sought an identity document. The immigration officer alerted the police who, there and then, arrested the father on suspicion of child trafficking and caused A to be taken into care. She has not lived with the parents since then and has not even had contact with them. In the event the father was not charged with any criminal offence in respect of A.

It was the situation of A, and in particular the fact that, in August and September 2008 she began to make allegations of having been physically and sexually abused in the household of the parents, which prompted the local authority’s substantial enquiries about the household and led to the accommodation of M and S on 11 September.

To the local authority, the guardians and the court, as well as to other professionals, the parents, in particular the father, have given a host of conflicting evidence about the identity of A and the circumstances in which she had come to live with them for six months. Following the most careful analysis, however, the judge felt unable to come to more than a few, mostly hesitant, conclusions about her identity and the reason for her presence in the household.

The judge found that A was a citizen of Pakistan and had probably been brought to the UK, otherwise than directly by the parents, shortly prior to her known presence in their household on 3 January 2008. It was possible, so the judge found, that she had arrived in the UK on 29 December 2007. He found that her date of birth was entirely unclear but that medical and dental assessments suggested that, at the time of his two judgments, she was aged either five or six.

By reference to DNA testing, the judge found that the parents, as it will be convenient to continue to call them, were not the biological parents of A but that the father was probably her biological uncle and that, as a cousin of the father, the mother was probably also closely related to her. They provided a variety even of different forenames for the child but the judge found it convenient to describe her as A. They also provided different accounts about the identity of her parents. One account was that she was the child of a half-brother of the father. Their final version was that she was the child of a different, full brother of the father. The judge’s conclusion was that, given the number of lies on the part of the parents as to her identity, her parentage and her age, the evidence as to her precise identity was impenetrable.

The judge found that, although the father had not physically accompanied A into the UK, he had been instrumental in arranging for her to come and had arranged with the persons who did accompany her that they should bring her to England and indeed to his own household. The judge found that, upon A’s arrival in the household, the father presented to the mother, as an accomplished fact, that A would be living with them; and that thereafter the mother colluded with the father in keeping her existence in their household a secret from the authorities for as long as possible. In the event, said the judge, they succeeded in keeping her “well under the radar” for six months.

Why did A come to live with the parents? The judge dismissed any suggestion that she came to live with them for the purposes of being sexually abused or of otherwise living in servitude under them. One theory, to which the judge gave some credence, was that the father had arranged for the importation of A into the UK and into the household in order to bolster some renewed application on his part for permission to remain in the UK. But it was the local authority’s final contention that the evidence justified a much darker conclusion. The father had spoken of the recent death in Pakistan of his own father and of his leaving an estate valued at equivalent to £10 million, which, he alleged, was the subject of a vicious family feud. There was evidence before the judge that the father’s widowed mother had, in Pakistan, accused the father of having been holding A in Wales, in effect as a hostage, in order to secure his perceived entitlement to the estate or to a substantial part of it. The father had responded that his mother’s allegations were preposterous. But, in a conversation with a social worker only days prior to the start of the fact-finding hearing, the father told her, so the judge found, that, when his entitlement to his father’s estate was resolved, he would tell A’s father to take her back. It may be that the judge fell just short of positively finding that the father was keeping A in his household in Wales as a pawn or hostage for the purpose of furthering his claim to his father’s estate. The judge did, however, find that “the father’s views about A’s presence in the UK in relation to his financial claims in Pakistan (if he has any) … displays a callous attitude towards A and her welfare”.

Until a late stage of the proceedings the allegations of sexual abuse of herself, and indeed also of M, made by A in and after September 2008 formed the centrepiece of the local authority’s case as to why, in the case of all four children, the threshold was crossed. Shortly prior to the fact-finding hearing, however, the local authority dramatically reduced their reliance on the allegations of sexual abuse and, at the start of that hearing, they in effect abandoned reliance even upon reduced allegations that the parents had inappropriately exposed A and M to sexual behaviour. The reason for the withdrawal of that part of the local authority’s case, being a matter upon which the judge placed substantial reliance, was that on 11 September 2008, one day after making her first allegations of sexual abuse, A had been subject to an ABE interview, which the local authority were constrained to accept had, by virtue of the conduct of the interpreter, been grossly flawed and was, in the judge’s phrase, entirely worthless. The local authority, however, continued to press for findings, other than in relation to sexual abuse, of a profoundly serious character in relation to the treatment by the parents of M and, in particular, of A.

In the event the judge found that the way in which the parents treated A was “shocking”. They made no attempt to ameliorate the distress which A must have exhibited by her sudden removal from her previous environment, whatever it had been, and they made no attempt to maintain in her mind her links with her parents and other close family members, whoever they were. The parents falsely protested to the court that they had understood A’s age to be two years less than was suggested by the medical and dental assessment and they thus deliberately deprived her of what they knew to be her right to education at school. They irresponsibly failed to register her with medical or dental authorities in Swansea because they wished to keep her presence in the household as a secret from the authorities. Although they were in loco parentis to her, they gave no parental love or affection to A. They failed to meet her legal, practical and emotional needs. A neighbour’s statement, albeit later withdrawn, to the effect that she had had heard the parents screaming at A was, so the judge found, true. The mother admitted, and the judge found the admission to be true, that, faced with unsurprisingly disturbed behaviour on A’s part, she threatened to set a neighbour’s dog upon A if she did not behave herself. The judge found that, as the mother intended, A was frightened of this threat. The judge proceeded to find that the father beat A on a number of occasions for not eating her food properly. The judge also found that he kept a stick for the purposes of administering a beating or beatings to her but, I suppose, his finding is ambiguous as to whether in the event the stick was so used.

Although S was aged only between two months and nine months during the period when A lived in the household and so might – possibly – have been too young to have been much affected by the parents’ treatment of A, it was an important part of the local authority’s case, in particular in relation to M, that both children had been exposed to the shocking ill-treatment of A on the part of the parents. The judge accepted that contention but appears to have declined to agree that either of them had thereby suffered emotional harm, still less that it was significant. The judge also found, however, that the parents, in particular the father, perpetrated acts of physical abuse upon M, albeit, again, that the harm thereby sustained by her was not, in his view, significant. The evidence of physical abuse of M was hearsay evidence of statements made by M to various adults between 24 November 2008 and 25 March 2009, i.e. when, of course, she was aged only three. In the event the judge found that on at least one occasion the parents slapped M on the hand; that on one occasion the mother kicked her on the leg and the father hit her to the side of the face; that on at least one occasion the father kicked M; that on at least one occasion, presumably different from any of those of which the judge had already spoken, the father hit M to the right side of her face and kicked and pushed her; and that on at least one yet further occasion the mother slapped M on the side of her face.

The judge made a further finding of physical abuse towards M which falls into a category of its own. When finding that the father kept a stick “for the purposes of administering a beating or beatings to A”, the judge added, in parenthesis, the words “and indeed at times to M”. Miss Meyer QC, on behalf of the local authority has properly indicated to us that she never asked the judge to find that the stick had been kept for the purposes of beating M and that, in the local authority’s view, there is no evidence to justify that finding. Irrespective of the fate of the parents’ general cross-appeals against the findings of physical abuse in relation to M, I am clear that we should set aside the judge’s finding that the stick was kept for the purposes of beating M.

In contradistinction to their absence of contact with A following her entry into care, the parents enjoyed very frequent contact with M and S, and also following his birth with H, until the date of the fact-finding hearing. When later considering whether the threshold was crossed, the judge was impressed with the fact that most of the professional observations of the care and attention given by the parents towards the three children during periods of contact were positive. The judge had, however, made certain significant findings which went the other way. Unfortunately a considerable animosity had built up between the parents and the first foster mother of M and S, who looked after them between 11 September 2008 and 11 March 2009; and the judge found that responsibility for the animosity lay at least as much with the foster mother as with the parents. At all events, apparently in order to demonstrate their continued rights over the children, the parents changed the clothes and shoes of M and S during contact periods even, so he found, at the expense of their comfort; and at times they redressed M in boy’s clothing and redressed S in clothing wholly inappropriate to his age. Furthermore, having announced that M was allergic to her own sweat and needed six baths each a day, the father administered showers to M during contact periods in flat contradiction of the advice of a health visitor. The judge was rightly critical of the use of the children by the parents, in particular by the father, as pawns in their power struggle with the foster mother and in their attempts to undermine the placement.

There is no doubt that evidence of physical abuse emanating on a hearsay basis from a child who had only recently passed her third birthday deserved the judge’s most critical scrutiny. Although, at any rate at first sight, the judge appears to have surveyed the evidence with meticulous care, indeed across 25 paragraphs. Mr Geekie and Miss Jenkins submit that the judge’s analysis failed to include reference to a number of significant submissions which had been made to him in this regard on behalf of the parents. Yes (they concede), M made at least nine different allegations of physical abuse to seven adults between November 2008 and March 2009 but (they contend) a lie once made may often easily be repeated and the judge should not necessarily have been impressed with the quantity of the allegations. Counsel make the obvious but important point that there was no evidence, whether from hospital, the GP, friends or neighbours, that M had borne signs of injury. They contend that M would be likely to have sensed the animosity between the first foster mother and the parents and thus might well have made allegations against the parents which she considered might please the foster mother. They contend, alternatively, that M’s allegations may have been part of a performance to gain attention. They point to the adult reports that, when making the allegations, M lacked emotional affect and that on some occasions she even laughed during her descriptions of being hit. They stress not only that all the evidence was hearsay but that there had been no ABE interview of M for the judge to watch. In the light of their submission to the judge that first allegations were often more significant than later allegations in an assessment of their general credibility, counsel are particularly critical of the fact that the judge embarked on his lengthy analysis of the evidence by reference to the eighth of the nine occasions when A made the allegations.

Following lengthy consideration, I would not be in favour of allowing the parents’ cross-appeals. Miss Meyer concedes that it would have been preferable for the judge to start his analysis with a reference to the first of M’s allegations. But she proceeds to remind us to whom M’s various allegations were made: first, to the first foster mother and to the latter’s supervising social worker; second, again to the first foster mother; third, to a contact supervisor; fourth, again to the first foster mother; fifth, again to the foster mother’s supervising social worker; sixth, to the guardian; seventh, to the second foster mother; eighth, to the nursery school teacher; and ninth, to the social worker allocated to M herself. Indeed the judge appears also to have made a finding of a tenth allegation on M’s part to an eighth adult, namely to a foster carer who provided day support for M’s full foster mothers. All these adults gave oral evidence to the judge of M’s allegations and of their assessment of her truthfulness in making them. The parents point to allegations by M which the judge rejected, namely that the parents put her in a clothes dryer and pinned her underneath an ironing board, in order to further their case of her general incredibility; but the judge’s readiness to sort the wheat from the chaff within M’s allegations might, on the contrary, be said to bear testament to the care with which he approached his task. In the event he stated:

“Having heard the parents’ denials of the type of assaults alleged (against the father in particular) by M, it seems to me a combination of the allegations as articulated, the acting out of them to a range of individuals, the contextual framework where she has indicated that the assaults follow occasions when she has been naughty, and the occasional description of how she felt when so assaulted, is evidence of a sufficiently compelling nature when considered in combination to justify these findings. In coming to these conclusions I have taken full account of deficiencies in the recorded notes of some of the witnesses, and that despite regular and frequent medical checks on her when in the care of her parents there were no suspicious injuries or bruises.”

Later the judge added that he had “no doubt” that M’s allegations of physical abuse, in most of which she had implicated the mother as well as the father, were true. Then the judge added the observation, in my view important to his later consideration of the threshold, that, in that the parents had declined to help him to understand the cause of their respective assaults upon M, he had no way of putting them into context.

Mr Geekie acknowledged the difficulty as to whether his criticisms of the judge’s findings should be such as to lead this court not only to set them aside but also, in preference to its direction of a rehearing of them, to substitute a conclusion that the allegations against the parents of physical abuse of M were not established. That distinction however, need not detain me for I have come to the clear view that, in the light of the evidence from at least seven if not eight adults that M had made these allegations in terms which they had found credible, it was open to the judge to accept their core validity notwithstanding what one would have to describe for this purpose as M’s uncomfortably young age.

The threshold to the making of a care order is set out in s.31(2) of the Act as follows:

“A court may only make a care order … if it 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 –

(i)

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 to him …”

In both his judgments the judge conducted what can only be described as a meticulous analysis of the law relating to the threshold, as well as to various other aspects of the law relevant to his overall enquiry. In particular, in relation to the likelihood of a child to suffer significant harm the judge reminded himself of two well known passages in the speech of Lord Nicholls in Re H and Others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, [1996] 1 FLR 80. Lord Nicholls stated, at [585F]:

“In my view, therefore the context shows that in s.31(2)(a) likely is being used in the sense of a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case.”

The judge also cited remarks of Booth J in Humberside County Council v. B [1993] 1 FLR 257. She said, at 263 A – B:

“Significant harm was defined by Miss Black, in accordance with dictionary definitions, first as being harm that the court should consider was either considerable or noteworthy or important. Then she expressed it as harm which the court should take into account in considering a child’s future. I think that is a very apt and helpful submission.”

Accordingly Booth J upheld the finding of justices that a child was likely to suffer significant harm on the basis that, as expressed at 265G, there was evidence of such harm as the court should take into account in considering the child’s future. On any view the description by Booth J of significant harm as being harm which the court should take into account in relation to the child’s future is extremely broad. Counsel tell us, however, that, over 16 years, the remarks of Booth J have never been doubted; and, although for my part I might not have expressed myself in quite such broad terms, they certainly foreshadow the view of Lord Nicholls, expressed three years later, that, in relation to a likelihood of significant harm, the threshold is set at a comparatively low level.

I have already explained that, although the judge found that M and S had been exposed to the ill-treatment of which the parents were guilty in relation to A, he appears to have declined to find that either of them had in consequence suffered emotional harm, still less that it was significant. The judge also, obviously correctly, accepted the proposition urged upon him on behalf of the parents to the effect that, by the time when M and S began to be accommodated by the local authority, A had already been removed from the household in circumstances likely to prove permanent and that, by that time, there was therefore no likelihood of any further ill-treatment of A which, were M and S again exposed to it, might cause them harm. In relation to the physical abuse perpetrated by the parents upon M, the judge accepted that it was likely that it had caused some emotional, as well as physical, harm to her but he concluded that he could not describe it as significant within the meaning of the authorities. Even when the judge sought compendiously to consider the harm suffered by M as a result of the physical abuse upon her and her exposure to the harm inflicted upon A, the judge felt unable to subscribe to the local authority’s contention that she had suffered significant emotional harm.

Thus, having concluded that none of the three children had suffered significant harm, the judge had only to consider whether they were likely to suffer such harm. In this connection the argument on behalf of the local authority and the guardian may easily be understood. They submitted, first, that, in that the parents had proved themselves capable of behaving in a callous and shocking way towards A, a girl then aged about four or five to whom they were acting in loco parentis and to whom no other family members were available at all, it was likely that they would behave similarly, or at any rate cruelly or at any rate significantly harmfully, towards their own three children. And, so their argument proceeded, the physical abuse perpetrated upon M showed that, in relation to her, the parents had already embarked upon a course of conduct which, even if it had not yet caused significant harm, would be likely, if continued, to do so. They added that indeed there was no reason for considering that physical abuse of S and of H was unlikely also to begin.

But the judge rejected these arguments. He said:

“This submission seems to me to require consideration in the context of what is known about the treatment of M and S prior to their removal into care. Overall … those two children appeared to be well-nourished, well cared for, and with close attachments to their parents. As [the first foster mother] told me in her oral evidence, these children were happy (following their understandable anxiety following separation from their parents) and that M was a sociable child who mixed well. She found her to be a thoroughly likeable child. Most of the observations of the parents’ care and attention towards the children in contact could not be impeached. … The totality of the evidence establishes, to my satisfaction, that there is a real distinction in the way these parents chose to treat their own children from the shocking way in which they treated A. I cannot extrapolate from the findings I made in relation to their care of A that there is a likelihood of harm to each or all of them.”

I should add that in the following paragraph of his judgment, and again six paragraphs later, the judge appears to attach considerable significance to a reflection that, had it not been for the allegations of sexual abuse made by A in September 2008 which were not in the event pressed by the local authority upon the court and thus in no way substantiated, M and S, and in due course also H, would not have been removed from the care of the parents. I agree with the doubts expressed by Mr Jones on behalf of the children as to the relevance of that reflection; and if, as I consider, it was probably irrelevant, it is of some concern to find the judge stressing it by repetition. In Re L (Children) (Care Proceedings: Significant Harm) [2006] EWCA Civ 1282, [2007] 1 FLR 1068, I suggested, at [2(b)], that, sometimes albeit only after the closest inquiry, a child falls properly to be taken into long-term care although his initial removal from the parents was prompted by an allegation which turns out to be entirely false. In the end, however, I conclude that the judge’s reiteration of this probably irrelevant feature goes virtually no distance towards undermining his central conclusion.

Ever since, just over two months ago, I granted permission to appeal and made my allegedly invalid injunction, I have been gravely troubled by this case. I have thought about it, off and on, throughout that period. My ultimate reaction, as I write, is identical to my first, namely that I am staggered that the judge refused to hold that the three children would be likely to suffer significant physical and emotional harm. On the other hand, my respect for the wisdom of this particular judge in the assessment of risks to children is profound; and, by comparison with us in this court, the advantages which he had in analysing risk to the children are too obvious to be spelt out. I need to remind myself first that it is not enough for me to be convinced, as I am, that, had I been in the shoes of the judge, I would have held that the threshold was crossed; and second that, instead, this appeal could be allowed only on the stark basis that, on the evidence before him, it was not open to Roderic Wood J, of all people, to reach the conclusion which he did.

I know that in this last respect my two colleagues take a view different from mine. I respect their view and this appeal will be dismissed. However I am driven to say that, for my part, I would have allowed the appeal and would have substituted a conclusion that the facts found by the judge inevitably gave rise to a likelihood that, if restored to the care of the parents, all three children would be likely to suffer significant physical and emotional harm within the meanings of the words “likely” and “significant” to which I have referred. The conduct of the parents towards A was so grossly abnormal as to show a capacity for cruelty towards children which, surely, gives rise to a real possibility that it would also be directed towards their own children. As the judge observed, the evidence did not enable him to explain why the parents had thus ill-treated A and accordingly it gave him no platform for a conclusion that it would not be likely to be replicated towards their own three children. Indeed to some extent it had already begun to be replicated: for, again for reasons which remained disturbingly unexplained, the parents had embarked upon a course of physical ill-treatment of their oldest child when she had been aged only two. There is no need to take issue with the judge’s conclusion, arguably surprising though it also was, that the emotional harm suffered by her as a result of the physical abuse of her was otherwise than of a significant character. For me, the conclusion inexorably driven by the combination of the gross ill-treatment of A and of the ill-treatment of M is that all three children were likely to suffer significant emotional and physical harm.

So I would have allowed the appeal; would have reversed the judge’s finding in relation to the threshold to the extent which I have indicated; and would have made interim care orders over all three children pending urgent review by Roderic Wood J of the optimum course which the continuing proceedings should take.

I have read the judgment of Wilson LJ in draft. I am indebted to him for his characteristically clear and thoughtful analysis of the facts, the law and the issues. I agree with virtually all that he says, for the reasons that he gives, save in one very important respect: his conclusion in paras 34 and 35. It is essential that the parties know the result of this appeal and cross appeal by the end of July 2009. I must, therefore, keep this judgment short and to the point.

Fortunately, to my mind no point of law or principle arises for decision. In reality, the appeal and the cross appeal are both against Roderic Wood J’s factual conclusions. Two issues arise:

I confess that my first reaction on reading the papers was to question how any reliance could be placed on the untested allegations of a 3 year child. Reasonable physical chastisement of children by parents is not yet unlawful in this country. Slaps and even kicks vary enormously in their seriousness. A kick sounds particularly unpleasant, yet many a parent may have nudged their child’s nappied bottom with their foot in gentle play, without committing an assault. Many a parent will have slapped their child on the hand to make the point that running out into a busy road is a dangerous thing to do. What M alleged, therefore, was not necessarily indicative of abuse. It will all depend on the circumstances.

For my part, I would have preferred a far greater exploration of those circumstances by the parties seeking to place reliance upon them. Even if an ABE interview was not appropriate, some attempt might have been made by an expert, in an informal setting, to ask M some very gentle questions about what she meant by saying her parents had slapped or kicked her. However, I remind myself I am not in a criminal court and it is clear that the judge was very much alive to these issues. He gave the evidence anxious scrutiny, and having done so, he explained fully and fairly his reasons for reaching the conclusion that the evidence taken cumulatively was of a “sufficiently compelling nature” to justify the finding that M had been physically assaulted. He bore very much in mind the dangers, the deficiencies in the way the evidence was elicited and recorded and the fact there were never any physical signs of abuse. He did not base his findings solely on what M said. There were aspects of the parents’ behaviour which lent support to the allegations. Finally, and most importantly, he saw and heard the witnesses. He analysed their evidence with great care. Accordingly, I would conclude his findings of fact are unassailable. To my mind this is a classic case for trusting the judgment of the trial judge.

That brings me to the second issue to which I would apply the same principle. I would trust the judgment of the trial judge. He applied the test he was asked to apply by the parties. He asked himself whether, on the proven facts, and bearing in mind all the circumstances, there is a real possibility here of the children’s suffering or being likely to suffer significant harm in the future. He bore very much in mind the “cross over” effect of the proven allegations in respect of A. The parents’ treatment of her was truly shocking. However, it did not necessarily follow that the parents’ biological children would suffer in the same or similar way. He was obliged to consider each child separately and this he did.

Further, he bore very much in mind the findings he made in respect of M and he accepted that the treatment of M could cause emotional harm as well as physical harm. However, he found as a fact, as in my view he was entitled to do, that the physical abuse of M would not of itself be sufficient to establish that she had suffered or was likely to suffer significant harm for the purposes of the threshold. Significantly, he noted that, despite what M had either suffered or witnessed, the children appeared to be “well nourished, well cared for and with close attachments to their parents.” M is a “thoroughly likeable” little girl. The parents have been observed on contact visits and, for the most part, their care and attention of the children “could not be impeached”.

In other words there was good evidence before Roderic Wood J. that the parents’ biological children are treated differently. Absent A from the household, which is inevitable, it was open to the judge to conclude there is no reason to suppose the other children will be treated in such a way as is likely to cause significant harm.

In those circumstances, much as I deplore the way A was treated, and support Wilson LJ’s condemnation of the parents for behaving in that fashion, I am not persuaded that the judge was plainly wrong to decline to find that the threshold of likelihood of significant harm had been crossed.

For those reasons, I would dismiss both the parents’ cross appeal and the appeal itself.

I have read in draft the judgment of Wilson L.J. and gratefully adopt his exposition of the material facts and circumstances. Save in respect of the finding that a stick was used to beat M, I too would dismiss the parents’ appeals against the findings of fact against them.

The issue in this appeal is whether or not Wood J. was plainly wrong in concluding that although M, the eldest three year old child of these parents, had suffered some harm attributable to the care given to her not being what it was reasonable to expect a parent to give her, she had not suffered significant harm nor was she likely so to suffer. This is the difficult question to decide. Much less difficult to my mind are the questions whether the judge was also plainly wrong to find that although S had been “exposed to the ill-treatment and neglect suffered by A” (see [141]) this did not amount to significant harm and there was again no real possibility that she would suffer significant harm. Finally, in the case of H, where it is not suggested he ever suffered any harm, significant or otherwise, was the judge correct to find the likelihood of harm not to be established in his case either?

This is, as I understand it, the first time this Court has had to consider when the dividing line between harm and significant harm is established. The Guidance issued under section 7 of the Local Authority Social Services Act 1970, designed to bring to managers and practitioners an understanding of the principles of the Children Act 1989, informed us at 3.19 that:

“It is additionally necessary to show that the ill-treatment is significant, which given its dictionary definition means considerable, noteworthy or important.”

That seems to have been seized upon and repeated by Miss Jill Black, as she then was, in her submissions to Booth J. in Humberside County Council v B [1993] 1 F.L.R. 257 which were accepted by the judge as apt and helpful.

That case was decided six months after the Act came into operation. We had to wait for 15 years after the commencement of the Act to find the first really considered attempt to explore the concept of significant harm. That was undertaken by Hedley J. in Re: L (Care: Threshold Criteria) [2007] 1 F.L.R. 2050. Two paragraphs of his judgment are worthy of citation:

“[50]  What about the court's approach, in the light of all that, to the issue of significant harm? In order to understand this concept and the range of harm that it's intended to encompass, it is right to begin with issues of policy. Basically it is the tradition of the UK, recognised in law, that children are best brought up within natural families. Lord Templeman, in Re KD (A Minor: Ward) (Termination of Access) [1988] 1 AC 806, [1988] 2 FLR 139, at 812 and 141 respectively, said this:

'The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not in danger. Public authorities cannot improve on nature.'

There are those who may regard that last sentence as controversial but undoubtedly it represents the present state of the law in determining the starting point. It follows inexorably from that, that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done.

[51]  That is not, however, to say that the state has no role, as the 1989 Act fully demonstrates. Nevertheless, the 1989 Act, wide ranging though the court's and social services' powers may be, is to be operated in the context of the policy I have sought to describe. Its essence, in Part III of the 1989 Act, is the concept of working in partnership with families who have children in need. Only exceptionally should the state intervene with compulsive powers and then only when a court is satisfied that the significant harm criteria in s 31(2) is made out. Such an approach is clearly consistent with Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. Article 8(1) declares a right of privacy of family life but it is not an unqualified right. Article 8(2) specifies circumstances in which the state may lawfully infringe that right. In my judgment, Art 8(2) and s 31(2) contemplate the exceptional rather than the commonplace. It would be unwise to a degree to attempt an all embracing definition of significant harm. One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life. Significant harm is fact specific and must retain the breadth of meaning that human fallibility may require of it. Moreover, the court recognises, as Lord Nicholls of Birkenhead pointed out in Re H and others that the threshold may be comparatively low. However, it is clear that it must be something unusual; at least something more than the commonplace human failure or inadequacy.”

In part that case echoes observations made by Munby J. in Re: K: Local Authority v N and others [2007] 1 FLR 399 to the effect that:

“[26] The task of the court considering threshold for the purposes of s 31 of the 1989 Act may be to evaluate parental performance by reference to the objective standard of the hypothetical 'reasonable' parent, but this does not mean that the court can simply ignore the underlying cultural, social or religious realities. On the contrary, the court must always be sensitive to the cultural, social and religious circumstances of the particular child and family. And the court should, I think, be slow to find that parents only recently or comparatively recently arrived from a foreign country – particularly a country where standards and expectations may be more or less different, sometimes very different indeed, from those with which are familiar – have fallen short of an acceptable standard of parenting if in truth they have done nothing wrong by the standards of their own community.”

I see the force and good sense in both judgments and I endorse them but with one reservation. Having more carefully considered Lord Nicholls’ speech in Re: H (Minors) (Sexual Abuse: Standard of Proof) [1996] A.C. 563, 592, I have come to the conclusion that Hedley J. was wrong to suggest that the threshold of significant harm may be comparatively low. To make good this criticism, I must put Lord Nicholls’ speech in its context. It will be recalled that in that case the trial judge was not sure that a 15 year old girl’s allegations that she had been sexually abused by her mother’s partner were true and he accordingly rejected the local authority’s case that there was at least the likelihood of future harm being suffered by that girl and her siblings. The judge’s decision was upheld. Lord Nicholls’ ‘Conclusion’ should be set out fully. He said:

“I am very conscious of the difficulties confronting social workers and others in obtaining hard evidence, which will stand up when challenged in court, of the maltreatment meted out to children behind closed doors. Cruelty and physical abuse are notoriously difficult to prove. The task of social workers is usually anxious and often thankless. They are criticised for not having taken action in response to warning signs which are obvious enough when seen in the clear light of hindsight. Or they are criticised for making applications based on serious allegations which, in the event, are not established in court. Sometimes, whatever they do, they cannot do right.

I am also conscious of the difficulties facing judges when there is conflicting testimony on serious allegations. On some occasions judges are left deeply anxious at the end of a case. There may be an understandable inclination to ‘play safe’ in the interests of the child. Sometimes judges wish to safeguard a child whom they fear may be at risk without at the same time having to fasten a label of very serious misconduct on to one of the parents.

These are among the difficulties and considerations Parliament addressed in the Children Act 1989 when deciding how, to use the fashionable terminology, the balance should be struck between the various interests. As I read the Act, Parliament decided that the threshold for a care order should be that the child is suffering significant harm, or there is a real possibility that he will do so. In the latter regard the threshold is comparatively low. Therein lies the protection for children. But, as I read the Act, Parliament also decided that proof of the relevant facts is needed if this threshold is to be surmounted. Before the section 1 welfare test and the welfare "checklist" can be applied, the threshold has to be crossed. Therein lies the protection for parents. They are not to be at risk of having their child taken from them and removed into the care of the local authority on the basis only of suspicions, whether of the judge or of the local authority or anyone else. A conclusion that the child is suffering or is likely to suffer harm must be based on facts, not just suspicion.”

As I read those conclusions, his Lordship was drawing a distinction between the case where it was established on the evidence that the child had suffered significant harm and the case where the issue was whether or not there was a likelihood of the child so suffering. In the latter case, all that it was necessary to establish was that there was a real possibility that he would suffer significant harm. When Lord Nicholls spoke of the threshold being comparatively low, it was having to show no more than a real possibility of harm (as opposed to proving a balance of probability) that made the threshold a low one. But it still has to be a real possibility of significant harm. Lord Nicholls was not saying that the threshold for establishing the significance of the harm was comparatively low. He was not dealing with the meaning and weight to be given to the word ‘significant’ at all. After all the harm has to be significant whether one is dealing with harm which has been suffered as well or where one is dealing only with the likelihood of it being suffered. So the word ‘significant’ must, if I may put it this way, be given its proper significance in the great scheme of the Children Act. Thus it is worth reflecting again for a moment on the philosophy which underpins the Act.

We were given a salutary reminder of it the speech of Baroness Hale of Richmond in In re: B (Children) (Care Proceedings: Standard of Proof) (CAFCASS Intervening) [2008] UKHL 35, [2009] 1 A.C. 11. She said:

“My Lords, taking a child away from her family is a momentous step, not only for her, but for her whole family, and for the local authority which does so. In a totalitarian society, uniformity and conformity are valued. Hence the totalitarian state tries to separate the child from her family and mould her to its own design. Families in all their subversive variety are the breeding ground of diversity and individuality. In a free and democratic society we value diversity and individuality. Hence the family is given special protection in all the modern human rights instruments including the European Convention on Human Rights (Article 8), the International Covenant on Civil and Political Rights (Article 23) and throughout the United Nations Convention on the Rights of the Child. As McReynolds J famously said in Pierce v Society of Sisters (1925) 268 US 510, 535, “The child is not the mere creature of the State.”

21.

That is why the Review of Child Care Law (Department of Health and Social Security, (1985)) and the White Paper, The Law on Child Care and Family Services (1987) (Cm 62), which led up to the Children Act 1989, rejected the suggestion that a child could be taken from her family whenever it would be better for her than not doing so. As the Review put it at para 2.13, “Only where their children are put at unacceptable risk should it be possible compulsorily to intervene. Once such a risk of harm has been shown, however, [the child's] interests must clearly predominate”.

22.

The principle of “unacceptable risk of harm” is easy enough to state but difficult to put into statutory language. The draft Children Bill annexed to the Law Commission's Report on its Review of Child Law, Guardianship and Custody (1998) (Law Com No. 172) required that “the child concerned has suffered significant harm, or that there is a real risk of his suffering such harm”: clause 12(2)(a). This was refined in the Bill presented to Parliament and eventually emerged in the so-called “threshold criteria” in s 31(2) of the Children Act 1989:

‘A court may only make a care order or a supervision order if it 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 –

(i)

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 to him; or

(ii)

the child's being beyond parental control.’

This case is about the meaning of the words “is likely to suffer significant harm”. How is the court to be satisfied of such a likelihood? This is a prediction from existing facts, often from a multitude of such facts, about what has happened in the past, about the characters and personalities of the people involved, about the things which they have said and done, and so on. But do those facts have to be proved in the usual way, on the balance of probabilities? Or is it sufficient that there is a “real possibility” that they took place, even if the judge is unable to say that it is more likely than not that they did?”

The case before us is narrower: it is simply about the meaning of the word “significant” in the phrase “significant harm”. Given the underlying philosophy of the Act, the harm must, in my judgment, be significant enough to justify the intervention of the State and disturb the autonomy of the parents to bring up their children by themselves in the way they choose. It must be significant enough to enable the court to make a care order or a supervision order if the welfare of the child demands it. At all times the spectre of Article 8 of the ECHR hangs over us all and Baroness Hale reminded us of its import:

“78.

Children also have the right to respect for their family lives under Article 8 of the Convention. This is, of course, a qualified right. Interference by the authorities is justified if it is “necessary in a democratic society” in order to protect the child's own rights, which in this context include the right to be protected from harm. But there has to be a “pressing social need” for the interference, the reasons for it have to be “relevant and sufficient”, and the interference itself has to be proportionate to the need: see, for example, K & T v Finland (2001) 31 EHRR 484; Scozzari & Giunta v Italy (2002) 35 EHRR 243; Kutzner v Germany (2002) 35 EHRR 653.”

Although Article 8 has of course more relevance to the disposal stage when the care or supervision orders can be made, it does, nonetheless, inform the meaning of “significant” and serves to emphasise that there must be a “relevant and sufficient” reason for crossing the threshold.

If Wood J. erred at all in reminding himself of the approach he should adopt, he erred only in that he put the bar too low by assuming, if he did, that the threshold for significant harm is low: see my analysis of Lord Nicholls’ speech. If he erred, he erred in favour of the local authority and the local authority and the guardian cannot now really be heard to complain too much about that. So I return to the essential questions. Was he plainly wrong in his conclusions?

It may be possible to argue whether his conclusions are to be analysed as conclusions of fact or value judgments. I am inclined to think the latter. It does not matter for the test this Court has to apply is essentially similar, namely whether he has exceeded the generous ambit within which there is room for reasonable disagreement. In this regard, it may be useful to remind ourselves of Lord Hoffmann’s words in Biogen Inc. v Medeva Plc [1997] R.P.C. 1, 45:

“The need for appellate caution in reversing the trial judge's evaluations of facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His express findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation.”

That, in my view, fits perfectly in this case. The judge heard this case for six days. Let us not forget he is highly experienced in this class of case. The nuances would set his antennae reverberating. He was attuned and sensitive to the cultural and language implications and mindful of the diversity issues. He also reminded himself:

“22.

In coming to my conclusions in relation to the threshold for M I should make it clear that, consistent with contemporary cultural and social attitudes in this country, I do not believe it acceptable to assault children physically as I have found the father (and also the mother) have done. I also accept that physical assault to a child is likely to cause emotional harm as well as physical harm, the extent of the harm of both types being dependent upon the nature and frequency of the physical assault.”

He was entitled to take into account and give weight to the facts that:

“24.

… [M and S] appeared [prior to their removal into care] to be well-nourished, well cared for, with close attachments to their parents.”

So he arrived at his conclusion:

“Accordingly, when I consider predictions of harm, I find it difficult to justify such a finding in this landscape, and decline to make one. The totality of the evidence establishes, to my satisfaction, that there is a real distinction in the way these parents choose to treat their own children from the shocking way in which they treated A. I cannot extrapolate from the findings I made in relation to their care of A that there is a likelihood of harm to each or all of them.”

I readily understand that the printed words of the judgment record a catalogue of findings capable of causing any Social Services Department concern as on an unspecified occasion or occasions M was slapped on her hand by her parents, she was slapped on her face by her mother, kicked by her father, kicked by her mother, hit on the side of the face by her father, hit to the right hand side of the face, kicked and pushed by her father. It sounds terrible. It could speak of a persistent campaign of abuse causing real suffering. But it could equally amount in fact to no more than a handful of isolated minor acts of chastisement forgotten as soon as administered. That is where an evaluative judgment is essential. The judge has to have “a feel” for what this child, barely 3 years old when removed into care, meant when at different times and different places and under different circumstances with goodness knows what prompting beforehand, she came to utter words which justify those very imprecise findings. Yes, it amounts to ill-treatment and therefore to harm as defined in section 31(9) of the Act yet despite intensive outside intervention in this family’s life, no-one ever saw a mark on that little girl and the stark fact is that she appeared to be, and it is worth repeating it, “well-nourished, well cared for and with close attachments to her parents”.

So was the harm significant? That was for the judge to decide. In my judgment he was fully entitled to come to the conclusion he did. I am inclined to think I may well have come to the same conclusion myself.

What of the likelihood of significant harm? Here the “shocking” ill-treatment of A is also relevant. But A’s position in that household was so shrouded in mystery that only the judge who had so signally failed through no fault of his to get to the bottom of the complexity, only he was in the position to judge the extent to which it was likely these parents would treat their own children as they had treated this strange interloper. He concluded that they were not likely to mete out barbarous treatment to their own flesh and blood. I am far from satisfied he erred in so doing. He was best placed to decide and for my part I would respect his impression of the primary facts and the inferences to be drawn from them. This is certainly not a case where I say, “Ooh, I would never have come to that conclusion myself! He has to be wrong.”

It is, therefore, a paradigm case where this Court has to respect the findings and conclusions of an experienced judge and uphold his decision. I would dismiss the appeal accordingly.