MGR (A Minor), Re

For the threshold under section 31(2)(a) of the Children Act 1989, “likely” significant harm means a real possibility of harm which cannot sensibly be ignored, not harm that is more probable than not. The court must first identify facts proved on the balance of probabilities from which that real possibility can properly be inferred. An appellate court may treat a threshold conclusion as unsafe where the first-instance reasoning, read as a whole, shows that the wrong test was applied or is internally inconsistent. Where the evidence and the judge’s own findings establish the threshold, the appellate court may substitute that conclusion and make the necessary interim order.

Calderdale Metropolitan Borough Council appealed from the decision of Mr Recorder Sapsford QC, sitting in the Leeds County Court on 29 July 2009, refusing to find that the threshold for a care order was crossed in relation to M, an eight-month-old child. M had been in interim care since shortly after birth. The proceedings were consolidated with those concerning her older half-sibling, O, for whom the threshold had been conceded and whose rehabilitation was under consideration.

The local authority contended that M had been likely to suffer significant harm because of the parents’ earlier chaotic lifestyle, substance misuse, domestic concerns and continuing professional reservations. The parents and maternal grandmother opposed the appeal, while the Children’s Guardian supported it. The central issue was whether the recorder had applied the correct meaning of “likely” under section 31(2)(a) of the Children Act 1989, and whether his conclusion was safe.

1. Appeal allowed. The recorder’s conclusion that the threshold was not crossed in relation to M was set aside. The Court of Appeal substituted a finding that the threshold was crossed and made an interim care order in relation to M until the recorder’s hearing on 22 September 2009.
2. Under section 31(2)(a) of the Children Act 1989, “likely” means a real possibility of significant harm, or a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm. It does not require harm to be probable or more probable than not. This was the effect of In Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, particularly Lord Nicholls’s speech.
3. The threshold enquiry must nevertheless be founded on a factual base. Facts in dispute must be proved on the balance of probabilities, and the court must then be able properly to conclude from those facts that there is a real possibility of future significant harm. The balance of probabilities governs the proof of the underlying facts; it does not convert “likely” harm into a probability requirement. The discussion in In Re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS Intervening) [2008] UKHL 35, [2009] 1 AC 11, had to be understood consistently with that distinction.
4. Although failure expressly to mention the real-possibility test is not necessarily fatal, the judgment must be read as a whole. Here, the recorder’s emphasis on the balance of probabilities, his failure to explain the rejection of professional evidence, and his later references to a trial rehabilitation of both children under continuing supervision were inconsistent with his conclusion that M could safely be returned without continuing local authority control. His conclusion was therefore unsafe.
5. The weight of the evidence, including unanimous professional opinion against immediate restoration and the recorder’s own apparent recognition that M required close supervision, justified substitution rather than remittal. The court also noted the danger of blurred issues when proceedings concerning another child are added to existing care proceedings, as explained in Re P (Children) (Care Proceedings: Split Hearing) [2007] EWCA Civ 1265, [2008] 1 FCR 74.

• Court of Appeal (Civil Division): Appeal from the Leeds County Court decision of Mr Recorder Sapsford QC dated 29 July 2009. The refusal to find the section 31(2) threshold crossed in relation to M was set aside, a finding that it was crossed was substituted, and an interim care order was made pending the further hearing.