Legal Update: Why are parents allowed to harm their children?

Ed Mitchell describes a case in which the High Court turned down a council’s bid to take children into care despite evidence of harm to one child

Mistreatment of a child by a parent does not inevitably lead to the conclusion that the child will be taken into care. The child must suffer or be likely to suffer significant harm; a parent who merely inflicts harm on a child will not see the child being taken into care. The fact that a parent has viciously abused someone else’s child does not mean that they are likely to do the same to their own child. It follows that serious abuse of another person’s child will not necessarily lead to a parent’s own child being taken into care. These inherent features of the Children Act 1989 are illustrated by the decision of the Court of Appeal in MA v Swansea CC (July 2009).

Why were care proceedings begun?

The High Court heard a care order application in respect of three young children, the eldest being a three-year-old girl. However, the key child in the proceedings was another young girl of unknown age but thought to be six.

She lived with the parents, but was not their child, and her origins were “shrouded in mystery”. A separate application for a care order was made and granted in respect of this child but her treatment also formed the basis for care order applications made in respect of the three biological children.

Why was a care order refused?

The High Court found that the mystery child was completely deprived of any love or affection and regularly severely beaten by the “parents”.

Their eldest biological child was also occasionally slapped and kicked, but not treated nearly as badly as the mystery child. On the basis of those factual findings, the High Court decided that the “significant harm” threshold was not met and so the care order application was rejected (section 31 of the Children Act).

Why did the court decide that the significant harm threshold was not met?

While the eldest biological child had ­suffered unpleasant physical abuse, the court did not consider this “significant harm”.

Turning to consider whether significant harm was likely in the future, the court decided that the abuse of the mystery child did not mean that the parents were predisposed to treat their own children in the same way. This was a “Cinderella” case – the parents were cruel to the mystery child but much more caring towards their own children. As a result, the court concluded that the natural children were not likely to suffer significant harm in the future. The local authority appealed to the Court of Appeal.

Why was the appeal rejected?

It is difficult to persuade an appeal court to overturn a conclusion that the “significant harm” threshold has not been not met – the appeal court must be satisfied that the court’s conclusion was irrational or “plainly wrong”.

This was not such a case. There was a good body of evidence that, despite the parents’ shortcomings, the children were “well nourished, well cared for and with close attachments to their parents”.

Accordingly, the High Court had been entitled to conclude that the children were not likely to suffer significant harm. Observing that “reasonable physical chastisement of children by parents is not yet unlawful in this country” and “slaps and even kicks vary enormously in their seriousness” the Court of Appeal held that the High Court had also been entitled to conclude that the violence used against the eldest child did not mean that she had suffered significant harm.

Ed Mitchell is a solicitor and editor of Social Care Law Today

Published in 3 September 2009 edition of Community Care