In re O and N (minors)(FC) In re B (minors)(2002)(FC)

Where proved harm was inflicted by one or more carers but the perpetrator cannot be identified, the welfare stage must proceed on the basis that each person whom the findings leave in the pool is a possible perpetrator. The court must consider that possibility, the preliminary judge’s comparative assessment and every other relevant circumstance, giving each appropriate weight.

This approach neither exonerates nor condemns an individual carer. It gives effect to the paramountcy of welfare under the Children Act 1989 and does not reverse the local authority’s burden of proof. By contrast, where an allegation was rejected or abandoned and the threshold was established on another ground, the allegation must remain no more than an allegation at the welfare stage.

These conjoined appeals concerned the basis for disposal hearings in care proceedings under the Children Act 1989 where serious injuries had been proved but the court could not identify which parent inflicted them.

In the proceedings concerning child Y, Coleridge J had identified the mother’s partner as the sole perpetrator and exonerated the mother. The Court of Appeal allowed the local authority’s appeal in re B (Non-accidental injury: compelling medical evidence) [2002] EWCA Civ 902. It held that the partner was a perpetrator but had not been proved to be the sole perpetrator, and directed that the disposal judge could not disregard the risk presented by the mother.

In the proceedings concerning children L and C, Judge Downey found that the father caused one injury but that either or both parents caused the remaining injuries. The Court of Appeal partly allowed the mother’s appeal in re O and N (Care: preliminary hearing) [2002] EWCA Civ 1271. Although it did not disturb those findings, it directed that the mother be treated as having caused no physical harm and presenting no risk of such harm.

The central issue was whether a welfare hearing must treat each unidentified possible perpetrator as presenting a possible risk or, instead, treat each individual as exonerated because perpetration had not been proved against that person.

The House unanimously allowed the appeal concerning children L and C and dismissed the appeal concerning child Y. Lord Nicholls delivered the leading speech. Lords Hoffmann, Millett, Scott and Walker expressly agreed with his reasons.

1. Lord Nicholls held that the threshold and welfare stages perform different functions. Under section 31(2)(a) of the Children Act 1989, an inference of existing or likely significant harm must be founded on proved facts. In that context, “likely” means a real possibility which cannot sensibly be ignored having regard to the nature and gravity of the feared harm. The proof requirement protects families against arbitrary public intervention.

2. Lord Nicholls held that, once the threshold is crossed, the child’s welfare is paramount. The welfare court must consider all relevant circumstances. In an uncertain-perpetrator case, it would defeat the legislation to treat both parents as presenting no risk when one or both must have inflicted the proved harm. Each person whom the findings leave as a possible perpetrator must therefore be treated as such.

3. Lord Nicholls held that the disposal judge must consider the preliminary findings and any expressed view about the relative likelihood that a particular carer inflicted the injuries. The weight attached to each possibility depends on all the circumstances. A finding of failure to protect cannot replace consideration of possible perpetration, because the two matters may bear differently on future risk.

4. Lord Nicholls rejected the contention that this approach reverses the burden of proof. The local authority retains that burden. The approach instead gives practical effect to Lancashire County Council v B [2000] 2 AC 147, under which the statutory threshold may be crossed without proof of which carer inflicted the harm. At split hearings, judges should express such comparative views as the evidence permits, and transcripts should be available to those preparing assessments and care plans.

5. Lord Nicholls further stated, by way of guidance beyond the issues directly arising, that an allegation rejected at the threshold stage cannot become a substantive basis for assessing risk at the welfare stage merely because the threshold was proved on another ground. An abandoned allegation likewise remains only an allegation, although its making and abandonment may form part of the background.

6. Lord Nicholls considered attractive, but did not decide, the corresponding view that unproved allegations should not provide the sole basis for a finding of future risk in private-law proceedings. The point had not been fully argued.

The Court of Appeal’s specified directions concerning children L and C were set aside. Their proceedings were to continue on Judge Downey’s findings and views. The disposal hearing concerning child Y was to consider the mother’s failure to protect, the greater probability that her partner was the perpetrator and the remaining possibility that she was a perpetrator.

1. House of Lords: In In re O and N (minors)(FC) In re B (minors)(2002)(FC) [2003] UKHL 18, the House unanimously allowed the appeal concerning children L and C, set aside paragraphs 1 and 4 of the Court of Appeal’s order, and dismissed the appeal concerning child Y.
2. Court of Appeal—children L and C: In re O and N (Care: preliminary hearing) [2002] EWCA Civ 1271, the mother’s appeal succeeded in part. The findings were undisturbed, but the directions were varied to require her to be treated as having caused no physical harm and presenting no risk of such harm.
3. Court of Appeal—child Y: In re B (Non-accidental injury: compelling medical evidence) [2002] EWCA Civ 902, the local authority’s appeal was allowed. The mother’s partner was found to be a perpetrator but not proved to be the sole perpetrator; the mother remained a possible perpetrator for the disposal hearing.
4. First instance—children L and C: Judge Downey found that the father caused the skull fracture, that either or both parents caused the remaining injuries, and that both had failed to protect the injured child.
5. First instance—child Y: Coleridge J found that the mother’s partner caused all the injuries, exonerated the mother as a perpetrator and found that she had not failed to protect the injured child.