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In the matter of J (Children)

before

Lord Hope, Deputy President
Lady Hale
Lord Clarke
Lord Wilson
Lord Sumption
Lord Reed
Lord Carnwath

JUDGMENT GIVEN ON

20 February 2013

Heard on 17 and 18 December 2012

Appellant Stephen Cobb QC Justin Gray (Instructed by Stockton-on-Tees Borough Council)	Respondent Paul Storey QC Martin Todd (Instructed by Wollen Michelmore Solicitors)
	Respondent Pamela Scriven QC Ben Boucher-Giles (Instructed by Leigh Turton Dixon)

LADY HALE

1. In a free society, it is a serious thing indeed for the state compulsorily to remove a child from his family of birth. Interference with the right to respect for family life, protected by article 8 of the European Convention on Human Rights, can only be justified by a pressing social need. Yet it is also a serious thing for the state to fail to safeguard its children from the neglect and ill-treatment which they may suffer in their own homes. This may even amount to a violation of their right not to be subjected to inhuman or degrading treatment, protected by article 3 of the Convention. How then is the law to protect the family from unwarranted intrusion while at the same time protecting children from harm?

2. In England and Wales, the Children Act 1989 tries to balance these two objectives by setting a threshold which must be crossed before a court can consider what order, if any, should be made to enable the authorities to protect a child. The threshold is designed to restrict compulsory intervention to cases which genuinely warrant it, while enabling the court to make the order which will best promote the child’s welfare once the threshold has been crossed. That threshold is defined by section 31(2) of the Act as follows:

“A court may only make a care order or supervision order if it is satisfied –

1. that the child concerned is suffering, or is likely to suffer, significant harm; and

2. that the harm, or likelihood of harm, is attributable to –

1. the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

2. the child’s being beyond parental control.”

Once that threshold is crossed, section 1(1) of the Act requires the court to treat the welfare of the child as its paramount consideration, having regard to the checklist

of factors listed in section 1(3). These include “any harm which [the child] has suffered or is at risk of suffering” (section 1(3)(e)). There are therefore three questions to be answered in any care case: first, is there harm or a likelihood of harm; second, to what is that harm or likelihood of harm attributable; and third, what will be best for the child?

3. It is some indication of the importance of the issues that the apparently simple words of section 31(2) have been considered by the House of Lords and the Supreme Court in no less than six cases: In re M (A Minor) (Care Orders: Threshold Conditions) [1994] 2 AC 424; In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563; Lancashire County Council v B [2000] 2 AC 147; In re O (Minors) (Care: Preliminary Hearing) [2003] UKHL 18, [2004] 1 AC 523; In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35, [2009] AC 11; and In re S-B (Children) (Care Proceedings: Standard of Proof) [2009] UKSC 17, [2010] 1 AC 678. In re M was concerned with the first limb of the first question: what is meant by “is suffering” significant harm? We are concerned with the second limb of that question: what is meant by “likely to suffer” significant harm?

4. A child may be protected, not only if he is actually suffering harm as a result of a lack of reasonable parental care, but also if it is likely that he will do so in the future. But how is a court to be satisfied that it is likely that this particular child – the child concerned – will suffer significant harm in the future? It has twice been held in the House of Lords that the mere possibility, however real, that another child may have been harmed in the past by a person who is now looking after the child with whom the court is now concerned is not sufficient. The court has to be satisfied on the balance of probabilities that this person actually did harm that other child: see In re H [1996] AC 563 and In re B [2009] AC 11. But in both those cases, it was not established that the other child had been harmed at all. The issue in this case is whether it makes a difference that another child has indeed been harmed in the past and there is a possibility that this parent was responsible for that harm.

5. Before turning to the facts and the arguments in this case, it should be emphasised that in the real world the issue hardly ever comes packaged in this simple way. There are usually many readily provable facts upon which an authority can rely to satisfy the court that a child is likely to suffer significant harm unless something is done to protect him. Cases in which the only thing upon which the authority can rely is the possibility that this parent has harmed another child in the past are very rare. As the Court of Appeal pointed out, this case has itself been artificially constructed by the decision to treat the issue as a preliminary question of law: [2012] EWCA Civ 380, [2012] 3 WLR 952, para 81. Who can say what facts the court might have found relevant had the history been fully investigated in the usual way?

The history

6. There are three children concerned in this case: HJ, a girl born on 20 June 2005, so now aged seven years and seven months; TJ, a boy born on 17 August 2006, so now aged six years and five months; and IJ, a girl born on 19 July 2009, so now aged three years and six months. The two eldest, HJ and TJ are the children of DJ, the second respondent, and his former partner, SC. They have been looked after by their father for the whole of their lives, having remained in his care when their mother left in 2008.

7. IJ is the daughter of JJ, the first respondent, with whom DJ formed a relationship in 2008. It was originally thought that DJ was the father of IJ, but DNA testing established that her father is SW, with whom JJ had earlier had a relationship. IJ has been part of the family unit with DJ, HJ and TJ for the whole of her life. Her mother, JJ, also formed part of that family unit for 20 months after IJ was born. Then in March 2011, the local authority formed a child protection plan which required her to move out of the family home, which she did. The local authority issued care proceedings in respect of all three children in April 2011. DJ and JJ married in June 2011 and have since had a child together, RJ, who was born on 1 December 2011.

8. The local authority quite properly took steps to protect the three older children after being made aware by another local authority of the findings of Judge Masterman in earlier care proceedings relating to JJ’s second child, S, who was born on 13 August 2005. Those proceedings were brought because of the death of her first-born child, T-L, when T-L was only three weeks old. T-L was born on 9 March 2004 and discharged from hospital two days later. When T-L died on 29 March 2004, she was found to have multiple fractures to her ribs, caused on at least two occasions, bruising to her left jaw, right side of her face, left shoulder and left inner elbow, all caused non-accidentally, and serious and untreated nappy rash. She had died as a result of asphyxia caused either by a deliberate act or by SW taking her to bed with him and JJ leaving her in SW’s care. Both were held to have colluded to hide the truth. In the circumstances, the judge found that “singling out a likely perpetrator does not help this couple because it must be debateable as to which is worse, to inflict this injury or to protect the person responsible”.

9. Following Judge Masterman’s judgment of 24 May 2006, JJ and SW withdrew from contact with S and eventually consented to his being adopted outside the family. They remained in a relationship until August 2007, when SW committed an assault upon JJ to which he eventually pleaded guilty at Cardiff Crown Court in June 2008. This was by no means the first occasion known to the local authority upon which SW had been violent towards JJ.
10. The current care proceedings were transferred to the High Court in September 2011, for determination as a preliminary issue whether the local authority could rely upon Judge Masterman’s findings to cross the threshold in section 31(2) of the Children Act 1989. By the time that this issue came to be tried by Judge Hallam in November 2011, the local authority had conceded that “the only matter that could meet the threshold criteria, at the relevant time, are the findings . . . as to the physical injuries sustained by T-L. They do not seek to bring failure to protect into the equation”. Hence the issue Judge Hallam had to determine was “whether JJ’s inclusion in a pool of perpetrators in earlier proceedings involving a different child and a different relationship can form the basis of the threshold in relation to a subsequent child in later proceedings”.

11. After examining the earlier authorities, Judge Hallam concluded that “the likelihood of significant harm . . . can only be proved by reference to past facts which are proved on the balance of probabilities”. The only facts available to the local authority had not been proved to that standard. Hence the threshold was not met and the proceedings were dismissed. Following this judgment, JJ returned to the family home, where she has remained ever since. No proceedings have been taken in respect of RJ, who was born shortly after the judgment.

12. Judge Hallam did remark that she was “aware that the present law does cause consternation for local authorities, professionals involved in the protection of children and academic commentators. However, it is quite apparent that the higher courts have considered those concerns and taken them into account in reaching their decisions”. The local authority appealed to the Court of Appeal, which reached the same conclusion in April 2012. However, the Court of Appeal took the unusual step of itself granting the local authority permission to appeal to this court. Giving the leading judgment, McFarlane LJ commented that “Artificially to limit the judicial exercise in a manner which invites the court to ignore part of the evidence in the case, might well set up the legal point for determination in a clinically clear and legally accessible manner, but it cannot, in my view, represent a proper exercise of the judicial task” (para 81).

13. While I would not criticise the local authority for agreeing to isolate the issue in this way, that comment does underline the unreality of the question with which this court, in common with Judge Hallam and the Court of Appeal, has been presented. The unreality is further illustrated by the way in which Mr Stephen Cobb QC, on behalf of the appellant local authority, has framed the issue as a choice between two extremes:

“Where a previous court has found that there is a real possibility that one or other or both of two or more carers have perpetrated significant harm on a child in his or her care, is that ‘finding’ a

‘finding of fact’ that may be relied upon in subsequent proceedings relating to only one of the potential perpetrators in support of a conclusion that there is a real possibility or likelihood of a subsequent child in a new family unit of which he or she is part suffering significant harm or is it a ‘finding’ that must be totally ignored in the subsequent proceedings?”

As will be seen, this is not the only way of framing the issue.

The authorities

14. The leading authorities are well-known and have been reviewed many times, most recently by this court in In re S-B [2010] 1 AC 678. However, as Mr Cobb correctly observes, they were not reviewed with this precise issue in mind and it is therefore necessary to consider them briefly once more.

15. The starting point is the decision in In re H [1996] AC 563. The proceedings concerned three young girls whose elder sister alleged that she had been sexually abused by their mother’s partner, her step-father and the father of the two youngest girls, from the age of seven or eight. The judge did not find the allegations proved but held that there was a real possibility that they were true. As this was the only basis upon which it was suggested that it was likely that the other children would suffer harm in the future, the case was dismissed. The decision of the House of Lords is authority for three important propositions: first, that the standard of proof of such allegations is the simple balance of probabilities; second, that “likely” in section 31(2) does not mean “more likely than not”; rather, it means likely “in the sense of a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case” (per Lord Nicholls of Birkenhead at p 585F); third, however, “A decision by a court on the likelihood of a future happening must be founded on a basis of present facts and the inferences fairly to be drawn therefrom” (p 590A); unresolved judicial doubts and suspicions “can no more form the basis of a conclusion that the second [likelihood of harm] threshold condition in section 31(2)(a) has been established than they can form the basis of a conclusion that the first [present harm] has been established” (p 589E).

16. The third proposition was held only by a majority of three to two but has been reaffirmed in two later decisions at this level. In In re B [2009] AC 11, the essential facts were very similar to those in In re H. Care proceedings were brought in respect of three children, because the oldest of the three, a 16-year-old girl, alleged that their mother’s husband, her step-father and the father of the two younger children, had sexually abused her and physically abused both her and her

elder brother. The judge could not decide that it was more likely than not that the girl was telling the truth, but nor could he decide that it was more likely than not that the husband was telling the truth. Hence those allegations could not form the basis of a conclusion that the children were likely to suffer harm in the future. On appeal, the children’s guardian, with the support of the local authority, invited the House of Lords to over-turn the decision in In re H in favour of a test that there was a “real possibility” that certain events had happened. The House unanimously and unhesitatingly declined that invitation (per Baroness Hale of Richmond at paras 53-54). The “thoroughly convincing” reasons given by Lord Nicholls were summarised thus (para 54):