L-K, Re

In care proceedings, likely to suffer significant harm means a real possibility of harm that cannot sensibly be ignored having regard to its gravity. The threshold is comparatively low. Established parental conduct may create that risk to a child even where the child has suffered no direct injury.

When assessing suspected non-accidental injuries, the court must consider the whole picture. Established inflicted injuries, accidental injuries, parental dishonesty and expert evidence may affect the evaluation of other injuries. The court need only decide causation on the balance of probabilities; it need not exclude every alternative cause or require corroboration in every case.

Care proceedings concerned two brothers, R and M. The Family Court at Lincoln, presided over by Mr Recorder Readings, found the section 31 threshold satisfied for R but not M, and discharged the proceedings for M. The Recorder found that the parents had inflicted two sets of bruising on R, had subjected him to prolonged corner-standing, and had lied and colluded, but declined to find that other injuries were inflicted.

The local authority appealed, arguing that the findings established a risk of significant harm to M and that the remaining injuries had been assessed piecemeal. The central issues were the proper approach to threshold risk and to causation of suspected non-accidental injuries.

Disposition

The appeal was allowed. The threshold was substituted as satisfied in relation to M on the basis of likely harm. The Recorder’s positive findings were left undisturbed, but his determination concerning the balance of the local authority’s allegations was set aside and the case was remitted for an urgent directions hearing before a different judge.

1. The threshold question for M depended on whether he was likely to suffer significant harm, although there was no finding that he had suffered physical harm and no determination whether he had witnessed or been emotionally harmed by R’s punishment. The expression means a real possibility of harm which cannot sensibly be ignored having regard to the gravity of the feared harm. The threshold is comparatively low: [1996] 1 FLR 80.
2. The established findings that the parents had beaten R with an implement, smacked him hard enough to cause bruising, imposed excessive punishment and then lied about it showed a risk arising from parental conduct during stress or challenging behaviour. The difference between the children did not provide sufficient reassurance at the threshold stage. Those circumstances could be relevant at the welfare stage, but did not prevent the threshold being crossed for M.
3. In cases involving possible non-accidental injury, the judge must assess the whole picture before determining causation. An injury which might appear accidental in isolation may take on a different significance when considered alongside other injuries. Established inflicted injuries, accepted accidental injuries and parental dishonesty must all be considered, although one inflicted injury does not prove that others were non-accidental.
4. The judge remains responsible for deciding causation, but must properly consider the expert evidence. The Recorder understated the expert’s opinion by treating it as mere suspicion and failed to engage with her overall assessment of the injuries. His approach therefore rendered the findings on the remaining allegations unsafe.
5. Further guidance was given that a judge should not require every possible alternative cause to be excluded, or corroboration to exist, before finding an injury non-accidental. The issue is whether that conclusion is established on the balance of probabilities. A court-created causal explanation should also be put to the relevant expert and addressed in submissions if it is to carry significant weight.

• Court of Appeal (Civil Division): Appeal allowed. The threshold was held satisfied for M, the findings on the remaining allegations were set aside, and the case was remitted for an urgent directions hearing: [2015] EWCA Civ 830.
• Family Court at Lincoln: On 27 March 2015, Mr Recorder Readings found the threshold satisfied for R but not M, and discharged the proceedings for M.