North Yorkshire County Council v Swift & Anor

Failure to establish past abuse on the balance of probabilities for care proceedings does not require a local authority to treat the abuse as disproved for all future child-protection purposes. The inability to satisfy the Children Act 1989 section 31 threshold limits reliance on the evidence in a care or supervision application. It does not remove continuing duties and powers where there is reasonable cause to suspect significant harm. The authority may investigate, monitor welfare and use child-protection conference and register procedures under the applicable guidance. A failure of proof does not create a general res judicata or estoppel preventing reconsideration when significant new evidence emerges, but it does not itself justify restricting contact.

Care proceedings were brought after a local authority alleged that the father had sexually abused two children many years earlier. Holman J, after a fact-finding hearing, concluded that the allegations had not been proved on the balance of probabilities. He nevertheless stated that future dealings between the parties and any court must proceed on the basis that the alleged abuse had not happened.

The local authority appealed that statement, contending that it unlawfully compromised its continuing child-protection duties. The respondents sought to remove the continuing suspicion. The central issue was the effect of the failed section 31 threshold findings on future investigations, child-protection registration and possible proceedings.

Lord Justice Thorpe gave the leading judgment. Potter LJ and Wall LJ agreed. The appeal was allowed only to the extent that paragraph 93 of Holman J’s judgment was excised; the primary finding that the historic allegations had not been proved was undisturbed.

1. The care-proceedings threshold under section 31 of the Children Act 1989 could not be crossed by reliance on suspicion alone. The authorities, including Re M and R (Child abuse: Evidence) [1996] 2 FLR 195 and Re H and R (Child sexual abuse: Standard of Proof) [1996] 1 FLR 80, supported the applicable burden and standard of proof. A further application based on the historic episodes would require significant fresh evidence.
2. The failure to establish abuse did not amount to a positive finding that it had not occurred. Nor did it create a general res judicata or estoppel preventing renewed enquiries or proceedings if new evidence or renewed cause for suspicion arose. The local authority would have to reconsider the earlier findings in light of that material.
3. The authority retained its continuing child-protection powers and duties outside applications for care or supervision orders. Under section 47(1)(b) of the Children Act 1989, reasonable cause to suspect that a child was suffering, or likely to suffer, significant harm was sufficient to require necessary enquiries. That threshold was lower than the threshold for placing a child in care. Investigation, monitoring, Area Child Protection Conferences and continued registration were therefore lawful within the authority’s remit.
4. Section 43 was of limited relevance because it concerned the authority’s decision to apply for an assessment order, while the court determined the application. The applicable guidance, issued under section 7, lacked full statutory force but was generally to be followed unless exceptional local circumstances justified departure. The actual protective steps remained matters for professional judgment under the governing legislation, regulations and guidance. There was no order for costs.

• Court of Appeal (Civil Division): allowed the appeal to the limited extent of excising paragraph 93 from the judgment below.
• High Court Family Division: Holman J found that the historical allegations of sexual abuse had not been proved on the balance of probabilities.