J (Children), Re

For the Children Act 1989 section 31 threshold based on likely future significant harm, the likelihood must rest on facts proved on the balance of probabilities. A prior finding that a parent was merely a possible perpetrator of injury to another child cannot, by itself, establish that threshold for a child in a new family. The Court of Appeal was bound by Re S-B and Re F and could not revisit that rule, although it questioned whether those authorities were fully compatible with earlier decisions concerning uncertain perpetrators. The appeal was dismissed. Future cases should be decided on the full available evidence, including other established adverse conduct, intervening history and current family circumstances.

The local authority commenced care proceedings concerning three children living with their mother and her new partner. The proceedings relied on earlier findings that the mother and her former partner were the only possible perpetrators of serious injuries to their first child, although neither had been identified as the perpetrator on the balance of probabilities.

Her Honour Judge Hallam held that the earlier findings could not establish that the children in the new family were likely to suffer significant harm under section 31 of the Children Act 1989, and dismissed the proceedings. The local authority appealed. The central issue was whether an earlier possible-perpetrator finding could support the likelihood limb of the threshold in relation to a child in a different family unit.

1. Appeal dismissed. The Court of Appeal unanimously dismissed the local authority’s appeal. The lower court was entitled to treat the existing authorities as binding.
2. Under section 31(2)(a) of the Children Act 1989, a prediction of future significant harm must be founded on past or present facts proved on the balance of probabilities. The real possibility test concerns the degree of future risk after that factual foundation has been established. It cannot itself prove the underlying fact. This reflected Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, Re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35 and Re S-B (Children) (Care Proceedings: Standard of Proof) [2009] UKSC 17.
3. A prior finding that a parent was only a possible perpetrator could not, without other adverse findings, establish the likelihood threshold for a child in a new family. The Court of Appeal was bound by the approach stated in Re B and W (Threshold Criteria) [1999] 2 FLR 833, as reaffirmed and applied in Re F (Interim Care Order) [2011] EWCA Civ 258.
4. McFarlane LJ identified a possible distinction between cases involving wholly unproved allegations and cases involving established serious harm with an uncertain perpetrator. He also stressed that a fresh threshold hearing should consider all relevant evidence, including other adverse findings, the parent’s intervening history and current family circumstances. Those observations did not permit this court to depart from the binding authorities.
5. The Lord Chief Justice held that any amplification or development of the law had to be left to the Supreme Court. The appeal was therefore dismissed on the central legal issue.

• Court of Appeal (Civil Division) — Appeal dismissed. The court held that it was bound by Re S-B and Re F and could not revisit the applicable threshold rule.
• Middlesbrough District Registry — Her Honour Judge Hallam, in a judgment dated 25 November 2011, held that the earlier possible-perpetrator findings could not satisfy the section 31 threshold for the children in the new family and dismissed the care proceedings.