M (Children), Re

Where a local authority seeks an interim care order to control the timing and manner of disclosure to children about a parent’s past sexual abuse, the court must first establish care jurisdiction under the Children Act 1989. A likelihood of serious harm attributable to a continuing risk of sexual abuse may satisfy the threshold against one parent; protective arrangements do not necessarily eliminate that risk. Once jurisdiction exists, disclosure is governed by the children’s welfare. The court must balance the competing risks, including harm from disclosure and harm from continued non-disclosure or an unplanned disclosure. An appellate court should not interfere with that evaluative decision absent an error of law, omission of a relevant factor or undue weight being given to another factor.

The local authority appealed an order made by Hedley J on 11 February 2011 in care proceedings concerning three children. The order gave the authority parental responsibility for the limited purpose of arranging a structured disclosure to the children that their father had sexually abused two daughters of an earlier marriage.

The parents agreed that the children should eventually be told but disagreed about timing and the manner of disclosure. The appeal challenged both the judge’s welfare evaluation and the jurisdictional route from an earlier section 8 application to proceedings under Part IV of the Children Act 1989. The central issues were whether the statutory threshold for an interim care order was met and whether the court could properly prefer immediate, supported disclosure over leaving the decision to the mother.

1. Appeal dismissed. The order granting the local authority an interim care order of limited scope was upheld.
2. The judge had correctly treated the issue as one of child welfare, rather than as an independent principle that the children had a right to know. The parents’ views were important, but the decision was not exclusively theirs.
3. The judge had properly balanced the competing risks. Expert evidence identified a real and continuing risk that the father might sexually abuse the children. Although supervision and other protective arrangements reduced that risk, the remaining risk was sufficiently serious to engage the state’s active concern. The judge was entitled to conclude that structured disclosure would better protect welfare than leaving disclosure to an uncertain future or risking an unplanned disclosure.
4. The care jurisdiction was properly founded. The relevant date for the statutory inquiry was the date of issue. For a final order the local authority had to establish the threshold in section 31(2) of the Children Act 1989, and for an interim order the extent required by section 38(2). The likelihood of serious harm attributable to the father’s conviction and the expert evidence was sufficient to establish jurisdiction against him. Establishing the criteria against one parent was sufficient to open the court’s welfare jurisdiction.
5. Longmore LJ confirmed that, once jurisdiction existed, consequential decisions about the timing and manner of disclosure had to be made on the basis of expert advice and, where appropriate, sanctioned by the judge. The Court of Appeal could not reweigh the competing risks in the absence of an error of law. Stanley Burnton LJ added that the judgment disclosed no error of law or omission of fact.

The appeal was dismissed.

• Court of Appeal (Civil Division) — [2011] EWCA Civ 1035: appeal dismissed; Hedley J’s order was upheld.
• High Court of Justice, Family Division — order dated 11 February 2011: interim care order granted, giving the local authority limited parental responsibility to control the timing and manner of disclosure.