Family Law

JOHN HAYES, Barrister, Zenith Chambers Leeds, PROFESSOR MARY HAYES, University of Swansea and JANE WILLIAMS, Senior Lecturer, University of Swansea

In Re MA (Care Threshold) [2009] EWCA 853, [2010] FLR (forthcoming) the Court of Appeal (by a majority) upheld a ruling by Roderic Wood J that the threshold criteria were not satisfied in relation to three young children. That ruling was made notwithstanding that a child who had been living in the same household (A) had been subjected to shocking and cruel treatment by the parents and their oldest child (M) had also been the victim of repeated assaults by the parents. Lord Justice Wilson dissented. He was unequivocal that he would have found the threshold established. Towards the conclusion of his detailed dissenting judgment he unburdened himself with the following remarks:

'Ever since, just over two months ago, I granted permission to appeal . . . I have been greatly troubled by this case. I have thought about it, off and on, throughout that period. My ultimate reaction, as I write, is identical to my first, namely that I am staggered that the judge refused to hold that the three children would be likely to suffer significant physical and emotional harm . . . The conduct of the parents towards A was so grossly abnormal as to show a capacity for cruelty towards children which, surely, gives rise to a real possibility that it would also be directed towards their own children . . . Indeed to some extent it had already begun to be replicated: for, again for reasons which remained disturbingly unexplained, the parents had embarked upon a course of physical ill-treatment of their oldest child when she had been aged only two.' (paras [34] and [35])

This article gives a full account of the trial judge's findings of fact and of how he applied the threshold test to those findings. It continues with a critique of the majority rulings in the Court of Appeal, given by Lady Justice Hallett and Lord Justice Ward and the reasoning that each of them applied to the threshold test. It concludes with observations about the impact the ruling in Re MA (Care Threshold) is likely to have on practice and how it sits uneasily with fundamental principles of child protection.

To read the rest of this article, see February [2010] Family Law journal.

To log on to Family Law Online or to request a free trial click here.