Hertfordshire County Council v Ms T & Anor

In care proceedings, the local authority must prove the threshold criteria on the balance of probabilities. The court must assess the children’s welfare as its paramount consideration and apply the welfare checklist. Lies may be considered only where there is no good or established reason for them, and a lie is not, by itself, direct proof of the underlying allegation. A parent’s failure to establish an alternative account does not itself prove the local authority’s case. Where the evidence establishes serious past harm, continuing risk, lack of insight and no realistic prospect of timely change, care orders may be necessary and proportionate even where the parent loves the children and can provide adequate physical care.

The local authority sought care orders for two children who had been removed from their parents’ care following concerns about physical abuse, sexual abuse, neglect, domestic violence and the father’s possession of indecent images involving children. The father had absconded and took no part in the proceedings. The mother opposed the applications and sought the children’s return to her care.

The central issues were whether the threshold under section 31(2) of the Children Act 1989 was established, whether the mother could provide safe care, and what arrangements best met the children’s welfare and timescales.

1. Threshold and standard of proof. The local authority bore the burden of proving the threshold criteria. Applying [2008] 2 UKHL 35, the judge applied the balance of probabilities standard. The evidence established that the children had suffered physical, emotional, psychological and sexual abuse and remained at real risk of serious harm if returned to the mother.
2. Assessment of lies. The judge applied the revised Lucas direction. Lies could be relied upon only where there was no good or established reason for them. Consistently with [2016] EWCA Civ 136 and [2001] Crim.L.R. 251, a lie was not direct proof of the primary allegation. It could, however, be relevant corroborative evidence. The mother’s repeated lies were assessed together with the other evidence.
3. Alternative case. The judge also applied [2013] EWHC 3651 Fam and [2016] EWHC 503 Fam: a party was not required to prove the truth of an alternative case advanced by way of defence, and failure to establish it did not itself prove the opposing case.
4. Welfare and proportionality. Under sections 1(1) and 1(3) of the Children Act 1989, the children’s welfare was paramount and the welfare checklist applied. The mother could provide physical care but lacked insight into the abuse, could not set effective boundaries, had placed an inappropriate decision-making burden on the children, and had not engaged in the therapeutic work required to become a safe parent. The necessary work would take at least twelve months and would not meet the children’s timescales.
5. Outcome. Care orders were made for both children. The local authority’s plan for long-term foster care was approved. Direct contact with the mother was to take place six times a year, with safe Skype or telephone contact in the interim. No separate contact order was made.

Not an appeal. The judgment determined the local authority’s applications for care orders at first instance.