PL v Local Authority & Ors

Under section 31(2) of the Children Act 1989, the court must distinguish significant harm suffered at the relevant date from likely future significant harm. A parent cannot be found to have failed to protect against abuse which, on the balance of probabilities, has not occurred. A failure to investigate or protect may be relevant to future risk, but only where the evidence supports a real risk of future significant harm. Unacceptable physical chastisement without evidence of significant harm will not, by itself, establish the threshold. Expert evidence must be objective, engage with relevant contrary material and be analysed critically.

The local authority commenced care proceedings after a child was removed from her parents’ care following allegations of serious sexual abuse. Initial care and freeing orders were made by consent. A later criminal prosecution was abandoned after further medical experts disagreed with the original diagnosis.

On an earlier appeal, the orders were set aside and the proceedings remitted for rehearing: [2006] EWCA (Civ) 1269. On rehearing, HHJ Onions found the threshold under section 31 of the Children Act 1989 established, made a final care order and freed the child for adoption. The mother appealed, challenging the threshold findings and the judge’s reliance on psychological evidence. The central issues were whether the findings could establish present or future significant harm and whether the expert evidence had been properly evaluated.

1. Disposition. The appeal was allowed. The final care and freeing orders were set aside. An interim care order under section 38(2) of the Children Act 1989 was substituted, and the local authority’s application was transferred to the High Court for rehearing before a full-time Family Division judge.

2. The court applied the burden and standard of proof approach in Re H (minors) (sexual abuse: standard of proof) [1996] AC 563. The judge had found that sexual abuse was not proved on the balance of probabilities. It therefore followed logically that the mother could not have failed to protect the child from sexual abuse which the court had found had not occurred. The judge had confused the two limbs of section 31(2). Evidence of the mother’s failure to investigate the father’s background might bear on future risk, but there was no sufficient evidence of a real risk that she would form a future relationship with another child abuser.

3. The court rejected the submission that evidence of the mother’s own physical chastisement could not be considered because it was absent from the threshold document. Applying Re L (children) (care proceedings) [2006] 3 FCR 301, the court held that relevant evidence may be relied on, subject to Article 6 and fairness. Nevertheless, there was no evidence that the physical incidents caused significant harm. A single blow, or even more than one, would not in this case establish the threshold. The father had left the family, had no contact issue and could not properly be the basis for a care order.

4. The judge’s treatment of the psychological evidence was flawed. An expert must assist the court with opinion within the expert’s field, rather than determine the facts. The psychologist’s refusal to engage with relevant positive observations deprived the judge of important assistance and cast doubt on the objectivity and soundness of her evidence. The judge then accepted her evidence without sufficiently critical analysis, relied on a circular search for corroboration and failed to bring significant favourable evidence into the threshold assessment before reaching his conclusions.

5. The court expressed no view on the outcome of the rehearing. The finding that the sexual abuse allegation was not proved was treated as determined in the parents’ favour and should not be reopened unless good reason emerged. The court also reiterated that children are not removed merely because a parent has limited intellectual ability; the statutory threshold and the child’s welfare must both be established.

1. Court of Appeal (Civil Division) [2007] EWCA Civ 102: permission granted and appeal allowed. The final orders were set aside, an interim care order substituted and the care application transferred to the High Court for rehearing.
2. Court of Appeal (Civil Division) [2006] EWCA (Civ) 1269: an earlier appeal was allowed, the original care and freeing orders were set aside and the proceedings were remitted for rehearing.
3. Wolverhampton County Court (31 October 2006): HHJ Onions found the threshold under section 31 of the Children Act 1989 established and made final care and freeing orders.
4. Wolverhampton County Court (14 February 2006): HHJ Hughes made a care order and an order freeing the child for adoption.