CtL, CmL, TLP, ARP, MM and JB (Children) (Fact Finding: Protection From Sexual Harm), Re

In care proceedings, the local authority bears the burden of proving disputed facts on the balance of probabilities. A lie is not, without more, evidence of guilt. Expert evidence is permitted only where it is necessary to assist the court in resolving the proceedings, and the modern test is stringent. Adoption may be ordered only where it is necessary to meet the child’s welfare needs and less interventionist options, including rehabilitation, have reasonably been explored. Further assessment is not required where existing evidence is thorough, the proposed work is unlikely to add anything material, and delay would conflict with the children’s timescales.

The London Borough of Sutton brought five linked care proceedings concerning six children. The proceedings arose from evidence of indecent images of children, alleged sexual abuse, domestic violence and significant risks posed by members of the children’s extended family. The court conducted a fact-finding hearing and considered the parents’ ability to protect the children, proposed care plans, applications for further assessment, and adoption and placement orders.

The central issues were whether the threshold criteria were established, whether further expert or guardian assessments were necessary, and whether rehabilitation or any arrangement less interventionist than adoption could meet the children’s welfare needs.

1. Fact-finding. The local authority had to prove the disputed allegations. The applicable standard was the balance of probabilities. A person’s lie could arise from many motives and was not, by itself, sufficient evidence of culpability. The court assessed the evidence cumulatively, including credibility, corroboration, family dynamics and the risks demonstrated by established conduct.
2. Risk and protection. The court found that several adults presented significant risks of sexual or physical harm and that certain parents were unable to separate emotionally from the family environment or protect the children from those risks. Those findings established the factual and welfare basis for the care plans.
3. Expert evidence. Under rule 25.1 of the Family Procedure Rules, expert evidence was restricted to evidence necessary to assist the court. Applying the guidance in Re TG (A child) [2013] EWCA Civ 5, the necessity test was materially more stringent than the former test of evidence reasonably required. Further assessment of AP was refused because the existing assessment was comprehensive, there was no evidential gap, and the proposed work was unlikely to produce anything materially different. Further assessment of CH was likewise unnecessary and futile in light of the established evidence and the children’s timescales.
4. Adoption and placement. Before making a placement order, adoption rather than a less interventionist arrangement had to be shown to be necessary, and reasonable avenues towards rehabilitation had to be explored. For TLP and ARP, the court concluded that CH could not protect them from the identified risks within an appropriate timeframe. Adoption was therefore the only arrangement capable of meeting their welfare needs. Consent was dispensed with under section 52(1) of the Adoption and Children Act 2002.
5. Orders and planning. The court endorsed the care plans for CtL and CmL, with long-term placement and contact decisions awaiting specialist advice concerning the children. MM could not return to KK’s care on the evidence then available, although alternative permanence options required further assessment. Final decisions for JB were adjourned pending further assessment, including consideration of the paternal grandmother as a potential special guardian.

First-instance fact-finding and welfare determination in linked care proceedings. Earlier interim decisions by Parker J are described in the judgment but are decisions in the same litigation.