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Suspicion not enough in care proceedings

Past possible harm to a child does not constitute a finding of fact, rules the Supreme Court

21 February 2013

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A mother who may have caused harm to her child in the past should not necessarily be prevented from being in care of children in the future, the Supreme Court has ruled.

“Care courts are often told that the best predictor of the future is the past. But prediction is only possible where the past facts are proved,” said Lady Hale in J (Children) [2013] UKSC 9, suggesting that such a past finding was not necessarily a ‘finding of fact’ binding other courts.

The mother in the case, referred to as JJ, was subject to care proceedings in 2004 in relation to her second child after her first child T-J died of non-accidental injuries.

Both children were born out of JJ’s relationship with her partner, referred to in the case as SW.

JJ’s and SW’s second child was taken into care after the judge found that one parent had caused the injuries and the other had at the very least colluded to hide the truth.

JJ then began a relationship with DJ, who had children of his own from a previous relationship.

Relying on the earlier ruling, the local council brought care proceedings in respect of three children cared for by the couple, leading to the present proceedings in the Supreme Court.

“A real possibility that something has happened in the past is not enough to predict that it will happen in the future,” said Lady Hale. “It may be the fact that a judge has found that there is a real possibility that something has happened. But that is not sufficient for this purpose. A finding of a real possibility that a child has suffered harm does not establish that he has.”

Lady Hale said the case centred on section 31 (2) of the Children Act 1989, which imposes a threshold which must be satisfied before a care or supervision order can be made in respect of a child.

First the child must have suffered or be likely to suffer significant harm; secondly, that harm must be attributable to the care given or likely to be given to the child. If the threshold is crossed then the court will treat the welfare of the child as its paramount consideration when deciding whether to make an order.

“The wording of section 31(2) has been the subject of six appeals to the House of Lords and Supreme Court,” she said.

“Those cases have consistently held that a prediction of future harm has to be founded on proven facts: suspicions or possibilities are not enough. Such facts have to be proved on the simple balance of probabilities.

“Reasonable suspicion is a sufficient basis for the authorities to investigate and even to take interim protective measures, but it cannot be a sufficient basis for the long term intervention, frequently involving permanent placement outside the family, which is entailed in a care order.

“It would be most unfair to the whole family, not only to this mother, but also to her husband and all the children, for these proceedings to continue further.”

The High Court held on a preliminary issue that likelihood of significant harm could only be established by reference to past facts that are proved on the balance of probabilities. Mere possibility was insufficient.

The Court of Appeal dismissed an appeal by the local authority but granted permission to appeal.

Lady Hale dismissed the local authority’s appeal. Lords Wilson, Hope and Sumption agreed, for their own reasons. Lords Reed, Clarke and Carnwath gave a joint judgment, agreeing with Lady Hale.

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