L (A Child) (fact finding)

In care proceedings, findings of abuse must be based on evidence, including properly drawn inferences, rather than suspicion or speculation. The court must assess the evidence in its overall context and apply the balance of probabilities. A finding is binary: the court decides whether the alleged event occurred.

For future harm, the relevant threshold is a real possibility of further significant harm, meaning a possibility that cannot sensibly be ignored. Where serious past harm is established, state intervention must remain necessary and proportionate to protect the child. The child’s welfare is paramount. Practical difficulties facing a local authority cannot displace the child’s welfare when determining whether contact with former carers should be maintained.

Hertfordshire County Council brought care proceedings concerning L, a Romanian child who had lived in England with foster carers, RV and EV, after her mother’s death. L’s father, AC, sought her return to Romania and denied allegations that he had sexually and physically abused her.

The court had previously determined that L was habitually resident in England and that it had jurisdiction: [2015] EWHC 1617 (Fam). The present hearing concerned fact-finding, the statutory threshold, L’s future welfare and arrangements for contact with RV and EV. The central issues were whether the alleged abuse and neglect were proved and whether L could safely return to her father or any family placement.

1. Findings of fact. The local authority bore the burden of proof. Applying the balance of probabilities, the court had to decide whether the alleged events occurred; there was no intermediate finding that they might have occurred. Findings had to rest on evidence and proper inferences, not suspicion or speculation. The court applied the approach in Re B (Care Proceeding: Standard of Proof) [2008] 2 FLR 141, Re A (A child) (Fact Finding Hearing: Speculation) [2011] EWCA Civ 12 and R v Lucas [1981] QB 720.
2. The evidence was assessed in the context of the whole evidential picture. The court adopted the wide-canvas and overview approach described in Re U, Re B (Serious Injuries: Standard of Proof) [2004] EWCA Civ 567 and Re T [2004] 2 FLR 838. L’s repeated and consistent complaints, her sister’s evidence, her behaviour and the expert evidence were considered together.
3. The court found that the threshold under section 31 of the Children Act 1989 was met. L had been sexually and physically abused by AC, significantly neglected and emotionally harmed. The allegations included repeated digital penetration, grooming, physical violence and conduct intended to prevent disclosure.
4. For future harm, the court applied the real-possibility test in Re H and R (Minors) (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80. Returning L to AC was unsafe. No family placement could provide the intensive specialist care required, and a specialist foster placement with therapeutic support was necessary and proportionate.
5. L’s welfare was paramount. Contact with RV and EV was ordered during school holidays, subject to therapeutic advice. The court followed Berkshire County Council v B [1997] 1 FLR 171: the child’s welfare could not be subordinated to the local authority’s practical or administrative difficulties. The local authority was permitted to refuse contact with AC under section 34(4) of the Children Act 1989.

This was a first-instance fact-finding and welfare decision. The court recorded that jurisdiction and habitual residence had previously been determined in [2015] EWHC 1617 (Fam).