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 must next consider the welfare stage. Inability to identify the perpetrator is not always accompanied by a finding of failure to protect. One appeal was allowed and the other dismissed. In assessing risk the judge at the disposal hearing should have regard, to any failure by the mother to protect the child, that one is the more probable perpetrator, and that the mother might have been the perpetrator. In each case subsequent events were also relevant.
Baroness Hale said: ‘The court must first be satisfied that the harm or likelihood of harm exists. Once that is established, as it was in both the Lancashire and In re O cases, the court has to decide what outcome will be best for the child. It is very much easier to decide upon a solution if the relative responsibility of the child’s carers for the harm which she or another child has suffered can also be established. But the court cannot shut its eyes to the undoubted harm which has been suffered simply because it does not know who was responsible.’

Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Millett, Lord Scott of Foscote, Lord Walker of Gestingthorpe
[2003] UKHL 18, Times 04-Apr-2003, Gazette 12-Jun-2003, [2003] 2 WLR 1075, [2003] 1 FCR 673, [2003] 1 FLR 1169, [2003] Fam Law 464, [2003] 2 All ER 305, [2004] 1 AC 523
House of Lords, Bailii
Children Act 1989 31
England and Wales
Appeal fromRe B (Non-accidental injury: compelling medical evidence) CA 2002
A child had died. Care proceedings were begun for the elder child. It was not clear just who had been responsible for the death.
Held: There were two questions. First, who perpetrated the injuries recorded by the experts? The answer to that . .
Appeal fromRe O and N (Care: preliminary hearing) CA 2002
Care proceedings were commenced for one child after the death of a sibling, but without evidence as to which carer was responsible.
Held: It had not been established upon a balance of probabilities that any one or more of the injuries were . .
CitedIn 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 . .
DoubtedLancashire 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 . .
CitedRe B (minors) (Care proceedings: practice) FD 1999
Section 31 and its associated emergency and interim provisions comprise the only court mechanism available to a local authority to protect a child from risk. The interpretation of the ‘attributable’ condition adopted by the House of Lords is . .
CitedRe G (Care proceedings: split trials) CA 2001
In a situation where an application is made for a care order, and the threshold criteria are met, but the court cannot decide which carer is responsible, the preferable interpretation is that in such cases the court is able to proceed at the welfare . .
CitedIn re M and R (Child abuse: Expert Evidence) CA 21-May-1996
On an application for a care order the judge found there was a real possibility that sexual abuse had occurred but the evidence was not sufficient to prove the allegations to the requisite standard. The threshold criteria were met on another ground. . .
CitedIn re R (Care: disclosure: nature of proceedings) FD 2002
In care proceedings, unproved allegations of harm were abandoned, before being rejected by the court. The threshold criteria were satisfied on a different ground, namely, neglect and emotional harm.
Held: As matters stood the local authority . .

Cited by:
Appealed toRe B (Non-accidental injury: compelling medical evidence) CA 2002
A child had died. Care proceedings were begun for the elder child. It was not clear just who had been responsible for the death.
Held: There were two questions. First, who perpetrated the injuries recorded by the experts? The answer to that . .
CitedIn re A (a Child) (Care proceedings: Non-accidental injury) CA 1-Jul-2003
The 11 year old child had been subject to non-accidental injury. The perpetrator could not be identified form among those who had care of him. The Family Court had held the first part of a split trial. The judge had been unable to exclude the . .
CitedIn re K (Children) (Non-accidental injuries: Perpetrator: New Evidence) CA 27-Aug-2004
The children had been taken into care, and freed for adoption. The mother appealed saying the blame for non-accidental injury was misplaced. The court had not thought her responsible for the non-accidental injuries, but she had been unwilling to . .
CitedNorth Yorkshire County Council v SA and others CA 1-Jul-2003
The child was taken to hospital with injuries which the doctors concluded were non-accidental. The identity of the abuser was in doubt.
Held: The court set out to identify the procedures in cases involving suspected non-accidental injuries . .
CitedIn 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 . .
CitedLancashire County Council v R (A Minor) and others FD 4-Dec-2008
The local authority sought a care order, alleging serious physical abuse of the child. The mother said that any injuries had been inflicted by the father. The father said that the cause was the mother.
Held: The injuries were not likely to . .
CitedIn 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 . .
CitedIn re J (Children) SC 20-Feb-2013
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, . .
CitedIn 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 . .

Lists of cited by and citing cases may be incomplete.


Leading Case

Updated: 31 October 2021; Ref: scu.180417