Under the Children Act 1989, a court may only make a care order or a supervision order if it is satisfied that the child concerned is suffering, or is likely to suffer, significant harm.

In a recent case, the Court of Appeal overturned the decision of a judge who ordered that an eight-month-old baby should be returned to her parents rather than remain in care. The judge had not applied the correct test for determining the likelihood that the child would suffer significant harm.

The baby in question had been taken into care by Calderdale Council three days after her birth, due to the risks posed to her safety should she remain in the parental home.

The mother already had a two-year-old child, by a different father, who had been removed from her parents because the threshold for making a care order had been judged to have been crossed as it was deemed that the baby was likely to suffer significant physical and emotional damage. At that time, the mother was addicted to drugs, had no permanent address and regularly exposed the baby to other drug users and alcohol abusers. The care arrangements made for the child were deemed to be inadequate as she was being looked after by the mother’s sister, whose own children had been placed in care.

A housing support officer had attempted to secure a proper home for the elder child but the mother refused to co-operate and when her daughter was admitted to hospital she refused to provide details of her address. Also, the father of the child was alleged to have been violent towards the mother.

The father of the second baby had a history of heroin use and criminal behaviour, including violence, and had already served ten years in prison. However, the judge in the lower court had set great store by the good conduct of the parents after the baby’s half-sister had been taken into care and accepted that they had now ‘forsaken all use of alcohol and drugs’. He ordered that the baby be returned to her mother, even though the four witnesses – a clinical psychologist, social worker, independent social worker and children’s guardian – were all of the opinion that the reported changes in behaviour were insufficiently substantial to constitute rehabilitation and the child would be in danger of suffering significant harm if she were returned to her parents.

The Court of Appeal found that the judge had failed to apply the correct test for determining the threshold at which a child should be taken into care. He had equated likelihood with probability. What should have been weighed up when deciding whether significant harm to the baby was likely was not whether the harm was more probable than not but whether there was a real possibility of significant harm which could not sensibly be ignored.

Based on all the evidence, the Court of Appeal found that the threshold for making a care order had been crossed in the case of the younger child and the order that the baby be returned to her mother was therefore set aside.

See more on child custody.