Law Report: Relevant time for care order conditions to be satisfied: Re M (a minor; Care order conditions). House of Lords (Lord Mackay of Clashfern, Lord Chancellor, Lord Jauncey of Tullichettle, Lord Slynn of Hadley and Lord Nolan) 21 July 1994.

The conditions in section 31(2) of the Children Act 1989, on which the court's jurisdiction depended before it could make a child care or supervision order, would normally need to be satisfied as at the date when the order was first applied for, rather than at the date of the court's hearing.

The House of Lords allowed an appeal by M's father, reversed the decision of the Court of Appeal ((1994) 2 WLR 200) and restored the decision of Mrs Justice Bracewell, on 12 February 1993, making a care order in favour of the local authority in respect of M and substituting a residence order in favour of Mrs W.

Allan Levy QC and Elizabeth Gumbel (Meaby & Co) for M's father; Roger Hayward-Smith QC and Laura Harris (Hudgell & Partners) for Mrs W; James Munby QC and Sandra Graham (David Atkinson, Woolwich) for Greenwich London Borough Council.

LORD MACKAY LC said M's mother was of a Jamaican family but born in England. She already had, by two other fathers, a son born in 1984 and twins born in 1987 when, in 1990, she married M's father, a Nigerian. M was born on 28 June 1991.

Tragedy struck on 12 October 1991, when the father, with a meat cleaver and a knife, brutally murdered the mother at her home in the presence of all four children.

Emergency proceedings were taken to protect the children. The other three children were placed with Mrs W, the mother's cousin, who was granted a residence order.

M was placed with a short-term foster mother, where he remained until November 1993 when, following the Court of Appeal's judgment, he also went to Mrs W. He had lived there since and had settled down well.

The question was whether the requirements of section 31(2) of the Children Act 1989 had been satisfied. This provided: 'A court may only make a care order or supervision order if it is satisfied (a) that the child concerned is suffering, or is likely to suffer, significant harm; and (b) that the harm, or likelihood of harm, is attributable to (i) the care given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him.'

The judge concluded that these requirements were satisfied. She found M was suffering significant harm in that he had suffered ill-treatment by being permanently deprived of his mother's love and care when she was murdered in his presence, and that significant harm was attributable to the care given to M by his father not being what it would be reasonable to expect a parent to give him.

She was further satisfied that if an order were not made, M would be likely to suffer significant harm in that he was a small child with special needs, had no permanent home, and the only person with parental responsibility was the father, who was unable to exercise it appropriately or fully because he was serving a life sentence with an order of deportation on release. But the Court of Appeal concluded there was no material before the judge entitling her to find that, at the date of the hearing, M was suffering significant harm of the relevant kind, and held that the threshold conditions of the section were not satisfied.

In his Lordship's opinion, however, the opening words of section 31 linked the making of the order by the court very closely with the application to the court by a local authority or authorised person. The natural construction of the conditions in section 31(2) was that where, at the time the application was to be disposed of, there were in place interim arrangements for the child's protection by the local authority, which protection had been continuously in place for some time, the relevant date with respect to which the court must be satisfied was the date at which the local authority initiated those arrangements.

If, after a local authority had initiated protective arrangements, the need for these terminated, because the child's welfare was satisfactorily provided for otherwise, it would not be possible in any subsequent proceedings to found jurisdiction on the situation at the time of initiation of these arrangements; it was permissible only to look back from the date of disposal to the date of initiation of protection where local authority arrangements had been continuously in place.


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