Family Law Titles
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(Court of Appeal; Ward, Wilson and Hallett LJJ; 31 July 2009)
The parents both came from Pakistan. They arrived in England, claiming asylum on the basis that both of them were homosexual, and were liable to persecution in Pakistan. Their claim was rejected. During the claim the mother gave birth to the couple's first child, and subsequently gave birth to a second child. At some stage a girl, aged 4 or 5, who may have been the father's niece, came to live with the family. Her presence in the family was concealed from the authorities for at least 6 months. When the father was unable to enrol the girl in a local school, he approached the authorities to obtain identity documentation. The immigration officer alerted the police, and the father was arrested on suspicion of child trafficking; the girl was taken into care. Over the next few months the girl made allegations of having been physically and sexually abused in the parents' home. As a result the parents' two children were accommodated by the authority, and the authority began care proceedings. The parents' eldest child, aged only 3, made certain statements suggesting that she had been beaten by the parents. The parent's third child was born before the care hearing, and was also accommodated by the authority. Shortly before the hearing it emerged that the girl's evidence of sexual abuse was unreliable because the ABE interview conducted the day after she had made her first allegation had been grossly flawed, as a result of the conduct of the interpreter.
The judge was able, on the evidence, to make a finding that the parents had behaved in a shocking fashion in respect of the girl, threatening her, keeping a stick with which to beat her, and failing to meet her legal, practical and emotional needs. There was some evidence that the parents had been holding the girl as a hostage in a family financial dispute. It was accepted by the parents that in relation to the girl the threshold had been crossed, and the judge made it clear that there was no likelihood that she would be returned to the parents' care. The judge considered that the parents' children had not suffered harm as a result of being exposed to the parents' ill treatment of the girl. In general terms there was considerable evidence that the parents' own children had been well cared for by the parents, in that they were healthy, well nourished and had strong bonds of affection with the parents. However, in relation to the eldest child the judge found that she had been slapped at least twice by the mother, kicked at least three times, and hit to the side of her face at least twice by the father. The judge found that the stick kept to beat the girl had also been kept for use on the eldest child. He found that the eldest child had suffered harm as a result of the physical abuse she had suffered, and that such physical abuse was not acceptable. However, he did not consider that the child had suffered significant harm, or that any of the parent's three children was likely to suffer significant harm in the future. He concluded that the threshold had not been crossed in relation to the three children and dismissed the care proceedings relating to them. The guardian, supported by the local authority, appealed.
The appeal was dismissed, by a majority, except that the judge's finding that the stick had been kept for the purposes of beating their eldest child, as well as the girl, was set aside, as there was no evidence to justify it. The judge had been full entitled to conclude that the harm suffered was not 'significant', and that, notwithstanding their treatment of the girl, the parents were not likely to inflict significant harm on their own children in future. The key issue was the meaning of the word 'significant' in the phrase 'significant harm'. Given the underlying philosophy of the Children Act 1989, the harm must be significant enough to justify the intervention of the State, disturbing the autonomy of the parents to bring their children up themselves in the way that they chose. Although Art 8 of the European Convention on Human Rights had more relevance at the disposal stage, it nonetheless informed the meaning of 'significant' and served to emphasise that there must be a 'relevant and sufficient' reason for crossing the threshold. In Re L (Care: Threshold Criteria)  1 FLR 2050 the court had been wrong to suggest that the threshold for establishing significant harm was comparatively low. In Re H (Minors) Sexual Abuse: Standard of Proof)  AC 563 Lord Nicholls had not been saying that the threshold for establishing the significance of the harm was comparatively low, but that the threshold was a low one in that there was no need to prove the likelihood of significant harm on a balance of probabilities, but only to establish a real possibility of significant harm.
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