Local authority loses Supreme Court appeal over s. 31 Children Act threshold

A local authority has lost an appeal to the Supreme Court over the application of the s. 31 Children Act 1989 threshold and the possibility a parent was responsible for harm to a child in the past.

A threshold is imposed by s. 31(2) of the Children Act 1989 which must be satisfied before a care or supervision order can be made in respect of a child:

• The child must have suffered or be likely to suffer significant harm;
• 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.

At issue in the case of In the matter of J (Children) [2013] UKSC 9 was whether a child could be regarded as ‘likely to suffer’ harm if another child had been harmed in the past and there was a possibility that the parent now caring for him or her was responsible for the harm to the other child.

The local authority had brought care proceedings in respect of three children cared for by DJ and JJ. The two oldest were the children of DJ and his former partner, and had always lived with DJ. The youngest child was JJ’s daughter, her third child with her former partner, SW.

The council argued that the three children were likely to suffer significant harm because JJ’s first child with SW, T-L, had died of non-accidental injuries in 2004.

In earlier care proceedings relating to JJ and SW’s second child, who was subsequently adopted, a judge had found that either JJ or SW had caused the injuries to T-L and the other had at the very least colluded to hide the truth.

In the case of In the matter of J (Children) the local authority sought to rely solely on the finding that JJ was a possible perpetrator of the injuries to T-L.

The council argued that this was a finding of fact sufficient as a matter of law to satisfy the s. 31(2) threshold in respect of the three children now cared for by JJ and DJ.

The High Court held on a preliminary issue that likelihood of significant harm could only be established by reference to past facts that were 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 to the Supreme Court.

The Supreme Court has now unanimously dismissed the local authority’s appeal.

Lady Hale, who gave the main judgment, said: “In a free society, it is a serious thing indeed for the state compulsorily to remove a child from his family of birth.”

The s. 31(2) threshold was an attempt to balance the two objectives of protecting the family from unwarranted intrusion and protecting children from harm.

Lady Hale said the House of Lords and the Supreme Court, in six appeals on the wording of the section, had consistently held that a prediction of future harm had to be founded on proven facts: suspicions or possibilities were not enough. Such facts had 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,” the judge said.

Lady Hale added that this approach was supported by the legislative history of s. 31(2). She also agreed with Lord Nicholls in In re H [1996] AC 563, 591 that it would be odd if the first limb (actual harm) had to be proved to the satisfaction of the court but the basis of predicting future harm did not.

Lady Hale said: “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.”

The judge said there may, or may not, be a multitude of established facts from which a likelihood that the parent in question would harm a child in the future could be established.

“There is no substitute for a careful, individualised assessment of where those facts take one,” she added. “But In re S-B is authority for the proposition that a real possibility that this parent has harmed a child in the past is not, by itself, sufficient to establish the likelihood that she will cause harm to another child in the future.”

Lady Hale said that most care cases were not “one-off whodunit” cases but instead come with a multitude of facts. “It is, of course, a fact that a previous child has been injured or even killed while in the same household as this parent. No-one has ever suggested that that fact should be ignored.”

Such a fact normally came associated with innumerable other facts which may be relevant to the prediction of future harm to another child. These included the number of injuries, when and how they were caused, on how many occasions they were inflicted, how obvious they would have been, and whether there was concealment from the authorities.

The judge highlighted a number of other potentially relevant facts, such as the household circumstances at the time, whether drink and/or drugs featured, any violence between the adults, how things had changed since, and whether the parent had left the old relationship and entered a new one. “What does this combination of facts tell us about the likelihood of harm to any of the individual children with whom the court is now concerned?"

Lady Hale there were several relevant facts found in the earlier proceedings against JJ, the mother, which might have been relevant to an assessment of whether it was likely she would harm children in the future.

These included: gross and substantial collusion expressly designed to prevent the court identifying the perpetrator; a failure to protect T-L; and deliberately keeping T-L away from health professionals.

The local authority had chosen not to rely upon these and had acquiesced in the decision to treat this as a one point case, Lady Hale said.

As a result, the mother had returned to the household where she had previously been looking after the three subject children “for some time without (as far as we know) giving any cause for concern”. She had now been looking after her new baby for more than a year, “also without (as far as we know) giving any cause for concern”.

Dismissing the application, Lady Hale said: “In those circumstances 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. If the local authority wish to make a case that any of these children is likely to suffer significant harm in the future, they will have to bring new proceedings.”

Lord Wilson agreed with Lady Hale for the most part and in the disposal of the appeal, but identified an issue on which he differed from the majority.

In his view, since the consignment of a person to a pool of possible perpetrators of injuries to one child could not constitute a factual foundation for a prediction of likely significant harm to another child in his or her care, then as a matter of logic, it could not become part of the requisite foundation in combination with other facts and circumstances.

“If, for the purpose of the requisite foundation, X’s consignment to a pool has a value of zero on its own, it can, for this purpose, have no greater value in company,” he said.