MA & Ors (Children), Re

For the statutory threshold to care, “likely” means a real possibility that cannot sensibly be ignored, but “significant harm” retains its full weight. It must be sufficiently serious to justify State intervention in family life. The threshold is not low merely because the likelihood limb uses a real-possibility test. Harm to one child does not automatically establish likely significant harm to siblings. Each child must be assessed against the whole evidential landscape, including whether the parents treat their own children differently. An appellate court should respect the trial judge’s fact-sensitive evaluation unless it falls outside the generous ambit of reasonable disagreement.

The local authority brought care proceedings concerning three children of the first and second respondents. Mr Justice Roderic Wood conducted a fact-finding hearing and found that the parents had physically mistreated the eldest child, M, and had treated another child, A, in a shocking manner. He nevertheless concluded that none of the three children had suffered, or was likely to suffer, significant harm within section 31(2) of the Children Act 1989, and dismissed the proceedings on 21 May 2009.

The children appealed against the threshold decision. The parents cross-appealed against the findings of physical assault. The central issues were whether the factual findings were plainly wrong and whether the judge was entitled to distinguish the treatment of A from the treatment and likely future treatment of the three biological children.

1. Disposition. By a majority, the children’s appeal was dismissed. The parents’ cross-appeals were dismissed except that the finding that the stick was kept for the purpose of beating M was set aside.
2. Fact-finding. The judge was entitled to accept the core allegations of physical assault made by M, despite her young age, the hearsay nature of the evidence and the absence of physical signs. He had scrutinised the evidence cumulatively, considered its defects and explained why it was sufficiently compelling. The appellate court should not substitute its own assessment merely because it might have evaluated the evidence differently.
3. Threshold. Under section 31(2) of the Children Act 1989, the likelihood limb requires a real possibility of significant harm which cannot sensibly be ignored. Ward LJ held that the reference to a comparatively low threshold in Re H concerned the real-possibility test, not the level of harm required to be significant. Significant harm is fact-specific, but must be sufficiently serious to justify State intervention and disturbance of parental autonomy, having regard to Article 8 considerations.
4. The shocking treatment of A did not compel the conclusion that the parents were likely to treat their biological children in the same way. The judge was entitled to consider each child separately and to attach weight to their nourishment, care, attachments and observations of parental contact. The judge’s conclusion fell within the generous ambit of reasonable disagreement and was not plainly wrong.
5. Dissent. Wilson LJ would have allowed the appeal. He considered that the gross treatment of A, combined with the unexplained physical mistreatment of M, established a real possibility that all three children would suffer significant physical and emotional harm if returned to the parents.

• Court of Appeal (Civil Division): In [2009] EWCA Civ 853, the children’s appeal was dismissed by a majority. The parents’ cross-appeals were dismissed save for the finding concerning the stick and M.
• High Court, Family Division: Mr Justice Roderic Wood dismissed the care proceedings on 21 May 2009 after finding that the threshold under section 31(2) of the Children Act 1989 had not been crossed.