In the matter of J (Children)

Under section 31(2)(a) of the Children Act 1989, “likely” means a real possibility of significant harm, but the prediction must rest on facts proved on the balance of probabilities. A real possibility that the present carer injured another child cannot, by itself, establish the required likelihood.

If all possible perpetrators remain responsible for the child’s care, proof that one of them caused the earlier harm may suffice. If only one remains, another proved cause for concern is required. Pool membership may prompt further inquiry and, in the majority’s view, may contribute alongside other proved circumstances, but it cannot be treated as a finding that the carer caused the earlier injuries.

Care proceedings concerned three children living with DJ and JJ. In earlier proceedings concerning another child, a judge had found that JJ or her former partner had caused fatal non-accidental injuries, but had been unable to identify the perpetrator. The local authority confined its present case to JJ’s inclusion in that pool of possible perpetrators and declined to rely on findings of failure to protect, concealment and collusion.

Judge Hallam held that pool membership alone did not satisfy section 31(2) of the Children Act 1989 and dismissed the proceedings. The Court of Appeal dismissed the local authority’s appeal in [2012] EWCA Civ 380 but granted permission to appeal.

The central issue was whether a real possibility that a present carer had harmed another child could, without any further proved facts, establish a likelihood of significant future harm to a child in a new household.

Disposition

1. The appeal was dismissed unanimously. The present care application remained dismissed. Any future case alleging likely significant harm would require new proceedings founded on the circumstances then existing.

2. Lady Hale held that section 31(2)(a) of the Children Act 1989 distinguishes the degree of future risk from the factual foundation required to establish it. “Likely” means a real possibility which cannot sensibly be ignored, having regard to the nature and gravity of the feared harm. The facts from which that risk is inferred must nevertheless be proved on the balance of probabilities.

3. The principles in In re H and In re B were settled law. A suspicion that past abuse occurred, or that a particular person perpetrated proved abuse, cannot itself found a prediction of future harm. Paragraph 49 of In re S-B correctly stated and applied that principle. It was followed in preference to the obiter reasoning of Wall J in In re B (Minors) (Care Proceedings: Practice).

4. Where every possible perpetrator remains responsible for the care of the unharmed child, proof that one of them previously caused harm may provide a sufficient foundation for predicting future harm. Where the possible perpetrators have separated and only one is now a carer, that person’s membership of the pool cannot, by itself, cross the threshold. Some other proved cause for concern is required.

5. Lady Hale, Lord Hope and Lord Reed, with whom Lord Clarke and Lord Carnwath agreed, treated pool membership as information which could prompt inquiry and might contribute alongside other proved circumstances in a careful, individualised assessment. It could never be treated as a finding that the particular carer caused the earlier injuries. Lord Wilson, supported on this point by Lord Sumption, considered that pool membership had no evidential weight in the threshold foundation, either alone or in combination, although it could prompt inquiries leading to other proved facts.

6. The attributability and welfare stages were distinct. An injured child may satisfy section 31(2)(b) without identification of the individual perpetrator where the relevant care was shared. Once the threshold has otherwise been crossed, pool membership may be weighed at the welfare stage according to the circumstances. Criminal responsibility under section 5 of the Domestic Violence, Crime and Victims Act 2004 and exceptional civil causation rules did not govern the prediction of future harm.

7. The requirement for an objective factual foundation protects children and families against unjustified state intervention and supports the pressing-social-need requirement under article 8 of the European Convention on Human Rights. On the local authority’s deliberately restricted case, the threshold was not crossed.

1. United Kingdom Supreme Court: In In the matter of J (Children) [2013] UKSC 9, the court unanimously dismissed the local authority’s appeal and directed that the current care application remain dismissed.
2. Court of Appeal: In [2012] EWCA Civ 380, the court dismissed the local authority’s appeal from Judge Hallam but granted permission to appeal to the Supreme Court.
3. High Court: Judge Hallam held that the local authority’s sole reliance on JJ’s inclusion in a pool of possible perpetrators did not satisfy section 31(2) of the Children Act 1989. The care proceedings were dismissed.