Council hit by setback in bid to get Supreme Court to look again at uncertain perpetrators

Cheshire East Borough Council has received a setback in its bid to get the Supreme Court to review its demand for proven factual foundation in uncertain perpetrator cases, an approach the authority’s counsel claimed has caused “great consternation” among local authorities involved in care proceedings.

The case of F (A Child) [2011] EWCA Civ 258 involved a boy, C, born on 27 June 2010 to parents who are engaged to be married. Early in the pregnancy the parents notified the local authority of it and referred the council to the existence of care proceedings in 2004 to which the father had been a party and subject to certain findings.

These proceedings related to a boy, J, born in 2003 to the father by a different woman. The judge had considered two fractures that J had suffered to his right leg on separate occasions in April 2004. The judge found that these injuries had been sustained non-accidentally.

However, Judge Orrell was not able to identify the perpetrator of either fracture. He consigned both parents to a pool of perpetrators. In relation to the second fracture he indicated that J’s mother was somewhat more likely than the father to have been its perpetrator. The judge also found that whichever parent had not been the perpetrator had failed to protect J.

Judge Orrell made a care order in relation to J on a plan that he should reside with the father’s parents and have contact with the father under supervision.

In the present case, Cheshire East conducted a pre-birth assessment for C and determined that in the light of those earlier findings, it should apply for an interim care order on a plan that the child could live with the mother only if the father left the family home and underwent a risk assessment.

The parents said this was unacceptable, so the local authority issued an application within two days of the birth for a care order. The council sought an immediate hearing of the application for an interim care order to be made on the plan it had drawn up.

Judge Barnett at Chester County Court heard the case only three days after the birth. The council did not contend that there were reasonable grounds for believing that C had suffered or was suffering harm, but rather that there were reasonable grounds for believing he was likely to suffer significant harm. In this respect, the council only referred to the 2004 proceedings.

Rejecting Cheshire East’s application for the care order, Judge Barnett concluded that the material presented to him did not enable the threshold to be crossed.

Cheshire East accepted that its appeal was doomed to failure because the Court of Appeal was bound by previous decisions. In In Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC563 Lord Nicholls said “there must be facts from which the court can properly conclude that there is a real possibility that the child will suffer harm in the future”. This position has recently been restated in In Re B (Children) (Care proceedings: Standard of Proof) [2008] UKHL 35.

However, Clive Heaton QC, Cheshire East’s counsel, told the Court of Appeal that he wanted to argue before the Supreme Court that where in relation to one child there has been a finding of non-accidental injury and the only uncertainty relates to the identity of its perpetrator, there should be a relaxation of the principle which requires the real possibility of future harm to the second child to be founded on a further proven fact in relation to the identity of the perpetrator.

But  Lord Justice Wilson in the Court of Appeal said the principle operated with full force even in that area, citing the decision of the court in Lancashire CC v B [2000] 2 AC 147 and in particular by the Supreme Court in In Re S-B (Children) (Care Proceedings: Standard of Proof) [2009] UKSC 17.

In In Re S-B the Supreme Court said (obiter, strictly speaking): “There is a further reason to remit the case. The judge found the threshold crossed in relation to William on the basis that there was a real possibility that the mother had injured Jason.

“That, as already explained, is not a permissible approach to a finding of likelihood of future harm…. a prediction of future harm has to be based on findings of actual fact made on the balance of probabilities. It is only once those facts have been found that the degree of likelihood of future events becomes the ‘real possibility’ test….”

Cheshire East wants to persuade the Supreme Court to modify this demand for proven factual foundation in uncertain perpetrator cases, with Heaton telling the Court of Appeal that the ruling in the In Re S-B case had caused “great consternation” among local authorities, among other professionals working in the area of public law and among academic commentators.

Heaton gave as a theoretical example a case of two parents who are consigned to a pool of possible perpetrators of non-accidental injuries to their child. The parents separate and then both have another child with new partners. They then become the subject of conjoined care proceedings.

The issue then is whether both applications for care orders would be required to be dismissed even though before the court is a perpetrator of injuries to the older child.

But the Court of Appeal declined to give permission to appeal. Lord Justice Wilson said: “No doubt there are hard and worrying cases. But the requirement of proven factual foundation is a bulwark against the state’s removal of a child from his family, which I consider very precious.

“I also applaud the Supreme Court’s regular acknowledgement of the fact that, although it can depart from its previous decisions, the exercise of departure is highly unsettling for the law and should be undertaken only with great caution.”

Lord Justice Wilson said: “I would not wish us to foist upon the Supreme Court a full appeal in which it had not itself had the opportunity to consider whether to accept it.”

Philip Hoult