AP v The Vale of Glamorgan Council & Ors

For a child who has not suffered past harm, the threshold under section 31(2)(a) of the Children Act 1989 requires a child-specific assessment of future risk. Likely means a real possibility that cannot sensibly be ignored, assessed by weighing all relevant facts. A previous injury does not make future significant harm obvious. The manner in which the injury was inflicted may carry greater relevance to future risk than its severity, although severity remains relevant. In split proceedings, the parties and court must identify when the threshold issue will be decided and must explain how the primary facts are said to establish risk for each child.

Care proceedings concerning A, an infant nephew injured while in AP’s care, were consolidated with proceedings concerning AP and AS’s three children. Cardiff County Court found that AP had shaken A, while exonerating the other adults. It later determined, without a separate threshold document or prior argument on the issue, that AP and AS’s children were likely to suffer significant harm and directed further assessments.

AP appealed. The central issues were whether the future-risk threshold under section 31(2) of the Children Act 1989 had been properly determined for each child, and whether this court should substitute its own decision or remit the issue.

Appeal allowed. The determination that AP and AS’s children were likely to suffer significant harm was set aside. The threshold issue was remitted to Judge Masterman for redetermination.

1. Child-specific threshold. Section 31(2) of the Children Act 1989 applies separately to each child. Proof that an injured child has suffered significant harm may satisfy the past-harm limb. Where a child has not been harmed, the court must address the separate future-risk limb. The fact that risk to one child may indicate risk to others does not remove the need for individual consideration.
2. Future-risk assessment. Following In re H and others (Minors)(Sexual Abuse: Standard of Proof) [1996] AC 563, likely means a real possibility that cannot sensibly be ignored, having regard to the nature and gravity of the feared harm. The court must establish the primary facts and weigh all relevant factors, including family history, relationships, parental attitudes, proposed changes and the circumstances of the incident. The conclusion must be reasoned; it cannot be treated as obvious merely because another child was injured.
3. Relevance of conduct. The nature and severity of the previous injury may be relevant, but the manner in which it was perpetrated carries greater relevance in principle to future risk. The judge had wrongly focused on the seriousness of A’s injury and the supposed distinction between a loss of control causing injury and rough handling causing no injury.
4. Remittal. The court had not heard the oral evidence and was not equipped to make a balanced overall assessment. It therefore declined to substitute a finding that the threshold was or was not satisfied. Judge Masterman was directed to hold an early directions hearing to decide what further evidence or assessments were required and when the threshold question should be redetermined.
5. Practice guidance. In split proceedings, the parties and court should identify whether threshold will be decided at the fact-finding, intermediate or outcome hearing. Directions should define the issues and evidence clearly. Where future risk is alleged, the local authority should provide a clear written analysis of how the primary facts give rise to risk for each child, with an opportunity for response. Proceedings and earlier directions should be scrutinised carefully after consolidation. The guidance was consistent with Re A (Children: Split Hearing) [2006] EWCA Civ 714.

• Court of Appeal (Civil Division) [2007] EWCA Civ 1265 allowed the appeal, set aside the threshold determination concerning the P children and remitted the issue for redetermination.
• Cardiff County Court found that AP had caused A’s injuries and subsequently determined that AP and AS’s children were likely to suffer significant harm.