IN THE MATTER OF G (A CHILD)

In care proceedings, assessment of future risk requires consideration of the nature of the risk, the likelihood of it materialising and the safeguards available to protect the child. The relevant threshold is a genuine or real possibility, not a balance-of-probabilities assessment of whether the feared event will occur. Safeguards must be assessed for their practical reliability in the circumstances. An appellate court should not substitute its own assessment for that of the trial judge in a difficult welfare decision unless there has been a fundamental misdirection or the decision is plainly wrong. In split care hearings, the same judge should hear both stages wherever possible, because risk assessment is relevant to both the threshold and disposal.

Care proceedings concerned a four-year-old child whose half-brother had died after suffering non-accidental injuries. The fact-finding judge could not determine whether the mother or her partner had inflicted the injuries, leaving the mother as a possible perpetrator. The Court of Appeal dismissed the mother’s earlier appeal against the finding that the statutory threshold under section 31 of the Children Act 1989 was satisfied.

At the subsequent welfare hearing, Johnson J made a care order placing the child with his father and the father’s partner, rather than returning him to his mother. The appeal challenged the assessment of future risk, the adequacy of proposed safeguards and the balancing exercise. It also raised concerns about the fact-finding and welfare stages having been heard by different judges.

1. Appeal dismissed. The Court of Appeal unanimously held that Johnson J had not misdirected himself and was not plainly wrong in making a care order.
2. The central issue was future risk. The judge had properly identified a substantial risk that the mother might enter an unsuitable or violent relationship and that the child might suffer physical or emotional harm as a result. Applying the approach adopted from Re H [1996] 1 FLR 80, it was unnecessary to establish that the risk was more probable than not. A genuine or real possibility, supported by proper evidential material, was sufficient.
3. The judge had also assessed the proposed safeguards, including supervision, conditions and support from the maternal grandmother. Those safeguards were not adequate because their effectiveness depended on cooperation and insight which the evidence did not establish. The grandmother did not accept fully that the mother might have inflicted the injuries, and the mother’s difficulties in seeking support undermined the reliability of supervision.
4. The Court of Appeal stressed the limited scope for appellate intervention in difficult welfare decisions. It is not the appellate court’s function to second-guess a conscientious trial judge who has considered the relevant matters. Intervention requires a fundamental misdirection or a plainly wrong outcome.
5. The President and Lady Justice Hale regarded judicial continuity in split hearings as highly important. Such hearings should, where possible, be timetabled together before the same judge, or the second hearing should be reserved to the judge who conducted the first. Lady Justice Hale described risk assessment as requiring analysis of the nature of the risk, its likelihood of materialising and the measures available to safeguard the child. The lack of continuity had not, however, caused injustice in this case.

• Court of Appeal (Civil Division): dismissed the appeal from the care order made by Johnson J.
• Family Division: Mrs Justice Hogg determined the threshold issue and found that significant harm under section 31 of the Children Act 1989 was established. Johnson J later determined disposal and made a care order placing the child with his father and the father’s partner.