F (A Child)

The likelihood of future significant harm required by section 31(2)(a) of the Children Act 1989 must be founded on facts proved on the balance of probabilities. Only after those facts have been established does the court assess whether future harm is a real possibility.

A previous finding that a parent belonged to a pool of possible perpetrators does not prove that the parent caused the earlier injury. Without further proven facts, that finding cannot establish a real possibility that another child will suffer significant harm. This requirement is an important safeguard against unjustified state removal of children from their families.

A local authority applied for a care order shortly after a child's birth. It relied exclusively on findings from earlier proceedings concerning the father’s older child. In those proceedings, two fractures had been found to be non-accidental, but the father and the older child's mother had only been placed within a pool of possible perpetrators.

His Honour Judge Barnett held that those findings could not satisfy the statutory threshold and dismissed the application. The local authority appealed to the Court of Appeal but accepted that binding authority required its appeal to be dismissed. Its substantive application was for permission to appeal to the Supreme Court so that it could seek modification of the existing law governing uncertain-perpetrator cases.

1. Appeal dismissed and permission refused. Wilson LJ, with whom Rimer and Pill LJJ agreed, held that binding decisions of the House of Lords and Supreme Court required dismissal of the appeal. The court unanimously refused permission to appeal to the Supreme Court.

2. Under sections 31(2)(a) and 38(2) of the Children Act 1989, a likelihood of future significant harm means at least a real possibility of such harm. That prediction must rest on established facts. A fact relied upon for that purpose must first be proved on the balance of probabilities; only then does the court evaluate the real possibility of future events.

3. The only relevant established facts from the earlier proceedings were that the father's older child had sustained two non-accidental injuries. The earlier judge had expressly declined to find that the father perpetrated either injury. Placement of the father in a pool of possible perpetrators therefore supplied no proven factual foundation for concluding that the present child faced a real possibility of significant harm.

4. The same rule applies in uncertain-perpetrator cases. The Court of Appeal decision in Lancashire CC v B and the Supreme Court's reasoning in In Re S-B (Children) confirmed that a finding merely establishing a real possibility that a parent caused an earlier injury cannot itself found a prediction of future harm. Although the relevant passage in In Re S-B was obiter, it formed part of a consistent line of recent higher authority.

5. The proven-facts requirement was a valuable safeguard against state removal of a child from the family. Given the consistency and recency of the higher authority, and the caution with which the Supreme Court approaches departure from its own decisions, the Court of Appeal should leave that court to decide whether to entertain a further appeal.

6. The court expressly left open whether, if the statutory threshold were crossed on independent grounds in fresh proceedings, the father's placement within a pool of possible perpetrators could be considered and, if so, with what weight during the welfare inquiry.

1. Court of Appeal (Civil Division): The local authority's appeal was dismissed and permission to appeal to the Supreme Court was refused: [2011] EWCA Civ 258.
2. Chester County Court: His Honour Judge Barnett dismissed the local authority's application for a care order on 16 July 2010 because the statutory threshold had not been crossed.