The mother had been, whilst in a previous relationship, involved in care proceedings after the death from physical abuse of her baby. Whilst being severely critical of her, the court had been unable to identify the author of the child’s death. Now, whilst in a later relationship she gave birth to a further child of the father in that first relationship. The authority began care proceedings and now appealed against rejection of its request for a care order. The order was sought based upon the historical evidence, but the courts below had said, in accordance with authority, that in establishing the threshold condition from an earlier finding, a court could only act where that finding was that harm was caused by the parent on the balance of probabilities. A suspicion that she might be at fault was not enough.
Held: The appeal failed. Lady Hale delivered the leading speech. The court emphasised the seriousness of removing a child from the parents, and the vital importance of the threshold test to protect families from unwarranted intrusion.
The issue in one form or another had reached the highest courts on six previous occasions, and the courts have consistently found that a prediction of future harm must be based upon facts proven on at least a balance of probabilities.
The case had been artficially constructed to test the point, and it should be remembered that such cases are rare. In particular here, the authority had chosen not to bring in any allegation as to the current arrangements. The child had now been living within these current stable arrangements without any suggestion of harm occurring.
Lords Wilson and Sumption dissenting in part, said that where a previous hearing had been able only to identify the parent as one in a pool of possible perpetrators, and that could not found an allegation of a risk of serious harm to another child of that carer, it would, from logic, also not properly serve as part of the requisite foundation alongside other facts.
Lord Hope, Deputy President, Lady Hale, Lord Clarke, Lord Wilson, Lord Sumption, Lord Reed, Lord Carnwath
[2013] UKSC 9, [2013] WLR(D) 74, [2013] 2 WLR 649, UKSC 2012/0128, [2013] 1 AC 680
Bailii, Bailii Summary, WLRD, SC Summary, SC
European Convention on Human Rights 8, Children Act 1989
England and Wales
Citing:
Appeal from – In re J (Children) CA 3-Apr-2012
The mother JJ’s first baby had died after physical abuse inflicted either by her or the father. In care proceedings for a later child, the judge concluded ‘T-L’s injuries could have been inflicted by either, or both, of them. Singling out a likely . .
Cited – Re M (A Minor) (Care Orders: Threshold Conditions) HL 7-Jun-1994
The father had been sentenced to life imprisonment for the murder of the child’s mother. Application was made for the child to be made subject to a care order. The father appealed refusal of an order.
Held: When an application was made on the . .
Cited – In re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
Cited – Lancashire County Council and Another v B and Others; Lancashire County Council v A HL 16-Mar-2000
A seven month old child had been injured, but it was not possible to establish whether this had taken place whilst with her parents or with a child minder. The Council brought care proceedings also for the minder’s own child B.
Held: Even . .
Cited – In re O and N (Minors); In re B (Minors) (Care: Preliminary hearing) HL 3-Apr-2003
The appeals were from conflicting decisions in care applications where one or other or both parents were guilty of lack of care, but there was no evidence to say which was responsible.
Held: The threshold criteria had been met, and the court . .
Cited – In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) HL 11-Jun-2008
Balance of probabilities remains standard of proof
There had been cross allegations of abuse within the family, and concerns by the authorities for the children. The judge had been unable to decide whether the child had been shown to be ‘likely to suffer significant harm’ as a consequence. Having . .
Cited – In re S-B (Children) (Care proceedings: Standard of proof) SC 14-Dec-2009
A child was found to have bruising consistent with physical abuse. Either or both parents might have caused it, but the judge felt it likely that only one had, that he was unable to decide which, and that they were not so serious that he had to say . .
Cited by:
Cited – Re B (A Child) (Care Proceedings: Threshold Criteria) SC 12-Jun-2013
B had been removed into care at birth. The parents now appealed against a care order made with a view to B’s adoption. The Court was asked as to the situation where the risks were necessarily only anticipated, and as to appeals against a finding of . .
Cited – Re EV (A Child) SC 1-Mar-2017
Appeal from application for permanence order. EV had been in care from her birth. Her parents, each with long standing learning difficulties opposed the order.
Held: The Court allowed the parents’ appeals. The meeting of the threshold test was . .
Lists of cited by and citing cases may be incomplete.
Children
Leading Case
Updated: 01 November 2021; Ref: scu.471048