M (Children)

In care proceedings, the court must assess the totality of the evidence on the balance of probabilities. Serious allegations do not alter that standard. Findings must be based on evidence and proper inferences, not suspicion or speculation.

Where a parent’s conduct has caused significant harm and creates a continuing risk of abduction, physical injury or serious emotional harm, the statutory presumption that parental involvement furthers welfare may be displaced. Direct contact may be refused where the welfare of the children requires it, after realistic alternatives have been considered. Indirect contact may be retained in a tightly controlled form. Restrictions under section 91(14) of the Children Act 1989 require a proportionate balance between the children’s welfare and the litigant’s access to the court.

The local authority brought public law proceedings under section 31 of the Children Act 1989 concerning two boys living with their father. Earlier private law proceedings had resulted in findings rejecting allegations that the father had sexually abused the children and finding that sedatives had been administered by the mother or maternal grandmother. The children had later been abducted by the mother, and the father’s home was destroyed by arson carried out by an associate of the mother.

The court was required to determine further threshold facts, assess the risks posed by the mother, decide future contact, continue reporting restrictions, and determine whether to make an order under section 91(14) of the Children Act 1989.

1. Findings and standard of proof. The local authority established the relevant facts on the balance of probabilities. The court applied the approach in Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35: seriousness of the allegation or consequence does not change the civil standard. The court considered the evidence as a whole and did not reverse the burden of proof. Expert evidence was weighed within the full evidential and factual matrix.
2. The court found that the mother had planned and carried out the children’s abduction, had been directly involved in planning the arson attack on their home, and had instructed a private investigator whose activities caused gross intrusion into the children’s and father’s private lives. The children had suffered significant emotional and psychological harm and remained at real risk of serious physical harm.
3. Contact. The children’s welfare was paramount. The guidance in Re J-M (A Child) [2014] EWCA Civ 434 was applied. Although contact is ordinarily beneficial and the court must consider available alternatives, direct contact may be ended as a last resort where there are cogent reasons and contact would harm welfare. The risks were unusually high, entrenched and not shown to be short-term. No direct contact was therefore ordered.
4. The children were nevertheless to receive indirect contact through video messages three times yearly. The messages were to be supervised by an independent agency, with no retention by the mother and no disclosure of identifying information. The arrangement was designed to preserve a safe connection while protecting the children.
5. Section 91(14). Applying Re P (Section 91(14) Guidelines) (Residence and Religious Heritage) [1999] 2 FLR 573, the court balanced the children’s welfare against the mother’s right of access to the court. A proportionate section 91(14) order was made until after the younger child’s first year at secondary school, subject to the mother obtaining permission.
6. The reporting restriction order was continued until the younger child reached eighteen. The children were directed to receive therapeutic support and life-story work without further delay.