C (Children)

For the section 31 threshold, “likely” significant harm does not require proof that harm is probable. It is enough that there is a real possibility of harm which cannot sensibly be ignored, having regard to its nature and gravity.

An appellate court will not substitute its welfare assessment for that of the trial judge. It may interfere only where the challenged discretionary decision was outside the proper ambit of judgment or plainly wrong. Whether removal, contact and protective restraints are justified depends on the facts and the child’s welfare.

The mother appealed care orders made in respect of her two children by HHJ Rundell in the Worcester County Court. She also challenged the approval of a care plan providing for contact four times yearly, and injunctions restraining her contact with the children outside agreed arrangements and her approach to their foster home and school.

The proceedings followed concerns that the mother had permitted a violent and potentially harmful partner to remain involved with the children despite repeated agreements that he would not do so. The children were removed while subject to interim care orders after he was found at the family home.

The appeal raised the section 31 threshold, the lawfulness and proportionality of removal and suspended contact, alleged unfairness at the final hearing, and the necessity of the injunctions.

1. Appeal dismissed. The care orders, the approval of the care plan and the injunctions were within the trial judge’s discretion.

2. The section 31 threshold was properly met at the date of issue. The judge was entitled to rely on his earlier fact-finding findings. The mother had repeatedly allowed a man with a history of violence, who had hurt the children, back into their lives despite warnings and agreements. Applying Re H and R, [1996] AC 563, there was a real possibility of significant harm that could not sensibly be ignored.

3. The local authority’s removal of the children on 1 January 2008 was a reasonable welfare response. The fact that the interim care plan had contemplated the children living at home did not require a prior court order varying that plan before action could be taken in an immediate, volatile and risk-laden situation. The decision was promptly capable of judicial review and was thereafter reviewed by the court.

4. There was no breach of Article 8 in the removal or in the interruption of contact. The court was entitled to conclude that the mother’s refusal to cooperate with appropriate contact arrangements, together with threats and conduct capable of undermining the placement, justified the decisions made. The modest future contact provision was supported by the professional evidence and the children’s need for stability.

5. There was no Article 6 unfairness. The judge had managed the final hearing fairly despite the mother’s lack of representation, ensured missing documents were supplied, and considered whether witnesses needed to be recalled. Any procedural shortcomings could not realistically have altered the disposal. The injunctions were also justified, although their discharge could later be sought on evidence of sustained compliance.

The court strongly indicated that the local authority should not pursue its pending committal proceedings against the mother.

• Court of Appeal (Civil Division): dismissed the mother’s appeal in [2009] EWCA Civ 959 and upheld the care orders, care-plan approval and injunctions.
• Worcester County Court: HHJ Rundell made care orders on 10 October 2008, delivered judgment on 16 October 2008, approved contact four times yearly, and made protective injunctions while sitting as a High Court judge.