LA v ML & Ors

In care proceedings, the local authority must prove the Children Act 1989 threshold on the balance of probabilities. The court must distinguish suspicion from proof and assess the evidence cumulatively, including medical evidence, the child’s accounts, the parents’ explanations and corroborating circumstances. Physical abuse, failure to meet health needs and failure to protect may together establish significant harm attributable to inadequate care.

After determining the factual foundation, an Article 15 transfer under Council Regulation (EC) No 2201/2003 may be appropriate. The court considers the child’s particular connection with the other Member State, whether that court is better placed, and the child’s best interests. Welfare is important but not paramount in the forum assessment.

The local authority brought care proceedings concerning a five-year-old child after bruising and other injuries were observed at school. The child was accommodated under interim care orders. His mother and stepfather denied causing the injuries and relied on an account of an accidental fall. The evidence also concerned repeated disclosures by the child, inconsistent parental accounts and significant dental decay.

The child and his biological parents were Slovakian nationals. The mother had returned to Slovakia and sought transfer of the proceedings under Article 15. The court had previously held that England and Wales had substantive jurisdiction under Article 8 because the child was habitually resident here when proceedings began. The issues were whether the threshold was proved and, if so, whether the proceedings should be transferred to Slovakia.

1. Threshold. The local authority proved, on the balance of probabilities, that the child had suffered significant harm. The court found that the mother had physically abused him through excessive chastisement, that the stepfather had used an implement, probably a stick, and that both adults had failed adequately to meet his health needs. The mother had also failed to protect the child from the stepfather.
2. Evaluation of evidence. The medical evidence showed multiple bruises in a distribution less likely to be accidental. That evidence was assessed with the child’s repeated and partly unprompted disclosures, the parents’ inconsistent and unreliable accounts, and the surrounding circumstances. Positive contact between the child and his parents, his access to medical services and the equivocal medical opinion were considered but did not outweigh the combined evidence. Dental decay caused by poor diet and nutrition added to the findings, although it would probably not alone have amounted to significant harm.
3. Article 15. The court applied the three-stage approach identified in AB v JLB (Brussels II Revised: Article 15): particular connection, whether the other court was better placed, and the child’s best interests. It also considered the principles summarised in Re T (A Child: Article 15 of BIIbis). The child’s nationality, former habitual residence, language, family connections and the mother’s long-term return to Slovakia meant that Slovakia was better placed for future welfare assessments. Welfare was important, but not paramount, in the forum assessment.
4. Procedure and orders. The court made the Article 15 transfer request and renewed the interim care order. It directed the parties to agree arrangements for the child’s move and sought, through the International Hague Network of Judges, to avoid an institutional placement pending placement with identified professional foster carers in Slovakia.