L-W Children

A finding that a parent failed to protect a child from significant harm requires evidence connecting the proved facts with the alleged risk. A parent’s imperfections, association with the perpetrator or knowledge of unrelated violence do not, without that connection, establish that the parent knew or ought to have known of the risk.

Events after the relevant threshold date may be considered only if they are capable of showing the position at that date. A failure-to-protect finding is serious and must not be added routinely to a finding that another household member inflicted injury. The local authority bears the burden of proving the necessary factual and causal foundation.

A mother appealed against HHJ Garland-Thomas’s finding that she had failed to protect her daughter and infant twins from physical abuse by her partner. The judge had separately found that the partner inflicted serious non-accidental bruising on the daughter. Permission to appeal that perpetrator finding had been refused.

The local authority accepted that the mother acted promptly and appropriately after discovering the injuries. The remaining issue was whether the partner’s earlier violence towards two adult men, his controlling behaviour and the other matters relied upon by the judge provided evidence that the mother knew or ought to have known that he presented a risk of physical abuse to the children.

1. Appeal allowed unanimously. The evidence could not properly support a finding that the mother had failed to protect the children. That finding was deleted, while the finding that the partner inflicted the injuries remained undisturbed.

2. The local authority had to prove a connection between the facts established and the asserted risk of significant harm. The mother’s failure initially to tell social care that her partner had suggested she should not consult a doctor was not causative. She had ignored that suggestion, promptly obtained medical attention and reported the injuries.

3. Events after the relevant threshold date could be used only if capable of demonstrating the position at that date. The mother’s later failure to question her partner and a later observation by the maternal grandmother could not establish that, before the injuries, the mother knew or ought to have known that the partner would inflict them. Such matters might be relevant to welfare under section 1(3) of the Children Act 1989, but they did not prove the alleged antecedent failure to protect.

4. The so-called tickling incident supplied no evidential foundation. Once the judge corrected her finding and accepted that the mark was eczema rather than an injury caused by the partner, his verbal loss of temper did not justify an inference that the mother should have anticipated physical violence against the child.

5. The partner’s two historic acts of violence against adult men, combined with his quick temper and controlling behaviour, did not establish the necessary causal link to a foreseeable risk of physical abuse of young children. The judge’s reliance on an absence of evidence that his violence was limited to adult men wrongly reversed the burden of proof.

6. A failure-to-protect finding has major consequences for assessment and welfare decisions. Courts must guard against treating it as an automatic addition to a perpetrator finding or assuming it merely because a parent shared a household with the perpetrator. The relevant behaviour must place the children at risk of suffering significant harm.

1. Court of Appeal (Civil Division): The mother’s appeal was allowed unanimously. The finding that she failed to protect the three children was deleted. The perpetrator finding against her partner remained undisturbed.
2. Swansea Civil and Family Justice Centre: HHJ Garland-Thomas found that the mother’s partner inflicted serious non-accidental bruising on one child and that the mother failed to protect that child and the twins from physical abuse or its risk. Permission to appeal the perpetrator finding was refused.