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Judge wrong to return baby to mother

15 September 2009

A judge was wrong to order that a baby taken into care should be returned to her mother despite the “unanimous professional opinion” that it would be dangerous, the Court of Appeal has ruled.

The baby girl, eight months old and known as ‘M’, was taken into care by Calderdale Council in Yorkshire three days after she was born. Her sister, aged two and known as ‘O’, was already in care.

Giving judgment in Re MGR [2009] EWCA Civ 942, Lord Justice Wilson said that at the time of O’s birth, the mother was a drug addict who moved “from home to home”.

He said she refused to co-operate with the housing support officer to secure a proper home for O, and when O herself was admitted to hospital, refused to give the hospital her address.

“The mother was using her sister, whose own children had been taken into care, as a carer for O and on other occasions the mother took O with her to a friend who was also abusing drugs and alcohol and brought her into contact with other drug users and addicts.

“There was also an occasion when the father grabbed the mother's throat, apparently while she was holding O.”

Wilson LJ said that M’s father was a heroin addict with a history of criminal activity, including violence, which had already caused him to spend ten years of his life in prison.

He said the conduct of both parents had been “exemplary” during periods of supervised contact after O was taken into care in November 2007, and, according to the recorder, both parents had “forsaken all use of alcohol and drugs”.

However, four professionals – a social worker, a clinical psychologist, an independent social worker and children’s guardian – all gave evidence in the High Court that the changes were too insubstantial to warrant rehabilitation.

“A fortiori those witnesses suggested to the recorder that M had in January 2009 been likely to suffer significant harm.”

Lord Justice Wilson said the recorder had failed to correctly apply the tests in Re H [1996] AC 563 and In re B [2008] UKHL 35 on the necessary threshold for a child to be taken into care.

He said the recorder had failed to refer to a crucial passage in Re H, where Lord Nicholls makes clear 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 one which could not sensibly be ignored”.

Wilson LJ went on: “Although the balance of probabilities did properly play a part in the recorder’s enquiry into the threshold in M’s case, in that it had to be established on that balance that there were facts from which a real risk of significant harm might be inferred, the recorder’s decision to explain his conclusion only by reference to aspects of jurisprudence which stress the balance of probabilities increases the index of my concern that he equated likelihood with probability.”

The judge concluded that the recorder’s conclusion relating to the threshold in M’s case was unsafe and should be set aside.

“Should we go on to substitute a conclusion that the threshold was indeed crossed or should we remit the matter to him for further consideration?” Wilson LJ asked.

“As I have just foreshadowed, I consider that the weight of the evidence – and of the recorder’s own conclusion about the need for very close supervision of M in the months following what should be only a trial restoration to the parents – should embolden us to substitute a conclusion that the threshold was crossed.”

Lord Justice Wilson made an interim care order relating to M, meaning that the courts would have “precisely the same powers in relation to both of the girls”.

Categorised in:

Procedures Discrimination Children