MA & Ors (Children), Re

Lord Justice Wilson:

A: Introduction

Three children, by their Children’s Guardian, appeal against an order made in care proceedings by Mr Justice Roderic Wood in the High Court, Family Division, Cardiff District Registry, on 21 May 2009. The order against which they appeal is the dismissal of the care proceedings brought in relation to them by the City and County of Swansea (“the local authority”). The judge made his order at the conclusion of a hearing at which he had been invited to find facts and to determine whether the threshold to the making of care orders in relation to the children, set by s.31 of the Children Act 1989 (“the Act”), had been crossed. On 18 May 2009, following a hearing between 27 April and 7 May which had endured for six days, the judge handed down a long and careful judgment, by which he determined the factual issues raised before him. At the end of that judgment he indicated that, three days later, he would conduct a hearing at which he would consider written and oral submissions upon the issue whether the facts which he had found should, or should not, lead to a conclusion that the threshold set by s.31 was crossed. At the hearing on 21 May, following his receipt of such submissions, the judge concluded that the threshold was not crossed. Such were the circumstances in which, of course, his dismissal of the proceedings became inevitable. The guardian’s appeal is against the judge’s conclusion that the threshold was not crossed. She contends that, in the light of the findings which he had made, it was irrational for the judge to decline to conclude that, for the purposes of the section, the oldest child had suffered significant harm, both physical and emotional, that the middle child had suffered significant emotional harm and that all three children were likely to suffer significant harm, both physical and emotional.

The first and second respondents to the proceedings and to the appeal are the father and mother of the children and they oppose the appeal. The third respondent is the local authority and, with one reservation, they support the appeal. The reservation is that they did not contend before the judge, and do not contend before this court, that the physical harm found to have been suffered by the oldest child was sufficient to be described as significant and was thus, of itself, sufficient to enable the threshold to be crossed in relation to her. But the various other ways in which the guardian contends that the thresh