Child Care Cases - a difficult question of law heading to the Supreme Court

In March 2004, a baby girl  (T-L) was found dead in her parent's bed.  Some weeks before her death she had suffered 17 fractures to her ribs.  There was also other bruising.  The official cause of death was asphyxia by obstruction of her airways.

T-L's parents were SW (father) and JJ (mother).  In August 2005, they had another child (S) and care proceedings were commenced in which the judge made certain findings of fact and also concluded that the injuries to T-L could have been inflicted by either parent (though he could not say which) or perhaps by both parents.  In 2006, a care order was made for S who was then placed for adoption.

In 2007, JJ and SW separated with JJ moving to another part of the country.  In 2008, JJ met a man (DJ) who had 2 children (H and T) from a previous relationship.  DJ had sole care of H and T and JJ moved into his home.

In the autumn of 2008, JJ became pregnant and a child (I) was born in July 2009.  It transpired (from DNA testing) that I's father was actually SW.  However, child (I) came to live with DJ, JJ, H and T.

DJ and JJ subsequently married and a further child (R) was born in December 2011.

It was December 2010 when Social Services
locally became aware of JJ's possible involvement in the death of T-L.  They put in place a child protection plan which required JJ to leave her home with DJ and the children.  In April 2011, care proceedings were commenced in relation to H, T and I.

These are the basic facts of an appeal recently heard by the Court of Appeal (Civil Division) Lord Judge LCJ, Lord Neuberger MR and MacFarlane LJ - see Re J (Children) [2012) EWCA Civ 380.  The local authority appealed against a preliminary ruling made by the County Court judge who had decided that the established facts regarding physical injury to T-L could NOT in law support a threshold finding in relation to JJ and her new family.  Consequently, the judge dismissed the care application.

The question of law:

It is here where the difficult legal issues arise with regard to the application of the so-called "threshold criteria" set out in the Children Act 1989 s.31(2).  Certain statements in the Court of Appeal and one in the Supreme Court support the view that the previous adverse "finding" must be totally ignored in any subsequent proceedings involving a new family unit, on the basis that a "finding" that there is a "real possibility" is not a true finding of fact at all since, by definition, it falls short of a finding to the civil standard of a balance of probabilities.  There is a  inescapable legal logic to that but, in practice, the question has to be asked whether it produces a result which is always in the best interests of the child.

The Court of Appeal statements are to be found in Re B and W (Threshold criteria) [1999] 2 FLR 833, Re F (Interim Care Order) [2011] EWCA Civ 258.  The Supreme Court statement is that of Baroness Hale SCJ in Re S-B (Children)(Care Proceedings: Standard of Proof) [2009] UKSC 17 (para 49).

The local authority argued that these statements are, or may well be, at odds with the fully reasoned analysis of the approach to be taken to the statutory threshold criteria in section 31 as developed by Lord Nicholls of Birkenhead in three House of Lords cases.  Time may prove the local authority to be right on this point but the Court of Appeal considered itself bound by the earlier Court of Appeal statements as well as Lady Hale's statement in Re S-B.


The three House of Lords decisions are Re H (Minors)(Sexual Abuse: Standard of Proof [1996] AC 563; Lancashire County Council v B [2000] 2 AC 417 and Re O and N (Minors)(Care Preliminary Hearing), Re B (A Minor) [2004] 1 AC 523 or [2003] UKHL 18.

A full reading of the Court of Appeal's judgment is necessary since MacFarlane LJ analyses in detail the above cases.  The result was that the local authority's appeal was dismissed and the decision of the County Court judge upheld.  However, dismissal of the appeal has set the scene for the Supreme Court to consider the law.  MacFarlane LJ stated (para 131) that - "Given the importance of the point in terms of its impact on the ground for families and for those charged with protecting children, there is a pressing need for the issue to be determined by the Supreme Court ..."

Interestingly, if it were possible to use the previous "finding" in the proceedings relating to JJ's new family, the outcome need not inevitably be a care order.  Where there is a finding that significant harm is likely, the question then becomes how to address that risk and the court has various disposals available including care orders and supervision orders.  At para. 139 of the judgment, Lord Judge observes that it is most unlikely that a care order would be regarded as appropriate.  Whether that is so or not could actually only be determined by (a) a finding that the threshold in section 31 is crossed and (b) consideration of all the up to the minute material.

The dismissal of the appeal will clearly be a disappointing outcome for local authorities charged with child protection duties.  Any Supreme Court decision will be some time away but will be awaited with considerable interest.

On this case, see also Family Law Week