MGR (A Minor), Re

Judgment

Lord Justice Wilson:

Calderdale Metropolitan Borough Council (“the local authority”) appeal against a refusal by Mr Recorder Sapsford QC, sitting as if in the Leeds County Court on 29 July 2009, to find that, in relation to a child, the threshold set by s.31(2) of the Children Act 1989 (“the Act”) for the making of a care order had been crossed. The child was a girl, M, who was born on 24 January 2009 and who is therefore aged eight months. She was taken into the interim care of the local authority on 27 January 2009. Such was therefore the date in relation to which the local authority had to satisfy the recorder that the threshold had been crossed.

Another, older, half-sibling of M was also the subject of parallel proceedings which the recorder was considering at the same time. She was a girl, O, who was born on 1 August 2007 and who is therefore two years old. The girls share the same mother but have different fathers. O’s father plays no part in the proceedings and thus it will be convenient to describe M’s father as “the father”. O had been taken into interim care on about 7 November 2007, i.e. when she was aged about three months. Both children remained in short-term foster care under interim care orders at the time of the recorder’s judgment.

It was prior to the birth of M that the recorder had embarked upon the hearing in respect of O. He conducted that part of the hearing for five days beginning on 1 December 2008 and then adjourned it in order that a psychological assessment might be obtained in respect of each of the parents. The recorder knew that the mother was heavily pregnant; and no doubt it was anticipated that, when the baby was born, care proceedings would also be taken in respect of him or her and that they would be consolidated with the proceedings in relation to O. Such was what occurred. Thus when, on 22 June 2009, the recorder embarked upon a further, albeit interrupted, hearing of eight days, such related to M as well as to O. On 8 July 2009 the hearing was concluded and the parties filed written final submissions. Following its dissemination to the parties in draft, the recorder’s written judgment was handed down at a hearing conducted by video-link between him in London and the parties and their advocates in Leeds on 29 July 2009.

For reasons which I will explain, there was never any real doubt but that, in respect of O, the threshold was crossed on the basis (to which the local authority ultimately confined their co