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Family Law

The leading authority on all aspects of family law

30 SEP 2009

CARE: Re R (Care Order: Threshold Criteria) [2009] EWCA Civ 942

(Court of Appeal; Wilson and Sullivan LJJ; 9 September 2009)

When the elder child was very young, and the mother was pregnant with the younger child, the parents had a 'chaotic' lifestyle' which included drug taking, frequent moves from home to home, bringing the elder child into frequent contact with drug takers, and some violent conflict between the parents. The elder child was taken into interim care at the age of 3 months. The younger child was taken into care a few days after birth.

During the care proceedings the parents conceded that threshold had been crossed in respect of the elder child, but not that it had been crossed in respect of the younger child. There was evidence that the mother had reformed following the removal of the second child, that she had not used drugs for over 20 months, and that the father had adhered to a methadone programme. However, the mother had also made some allegations, subsequently retracted, that the father was abusing her physically and sexually, and had at one stage cut her own wrists. The conduct of the parents during supervised contact with both children had been exemplary.

The recorder held that the threshold had been crossed in relation to the elder child, and made a care order in respect of her, but went on to hold that it had not been crossed in relation to the younger child. He also, against the advice of all four experts who had given evidence, concluded that both children should be returned to the parents' care for a trial period of 6 months, with supervision. The local authority appealed.

The appeal against the threshold finding in relation to the younger child was allowed; the recorder's finding had been unsafe and a finding that the threshold had been crossed in relation to the younger child would be substituted.

The statements in the recorder's judgment surrounding his conclusion about the threshold generated real concern about the word 'likely'; the recorder seemed to have equated likelihood with probability. The most important feature for the recorder to have carried into his analysis was that the requirement that the significant harm should be 'likely' did not mean that it had to be 'probable' in the sense of 'more probable than not' but that it had only to be a real possibility, or a possibility that could not sensibly be ignored.

The central conclusion of the recorder, as to a placement with supervision, taken in the context of unanimous professional opinion that it was too dangerous to restore either of the children to the parents at all, was consistent only with a conclusion that in the younger child's case, there was or at least had been a likelihood that she would suffer significant harm if placed with parents otherwise than under a care order.

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