Duncan Lewis

Family Law

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Harm to a child in the past could not be constituted as finding of fact Supreme Court rules

Date: (25 February 2013)    |    

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The Supreme Court ruled in a care matter that a mother who may have caused harm to her child in the past should not necessarily be prevented from being in care of children in the future.

Lady Hale in J (children) [2013] UKSC 9 has said that care courts are often told to look into the carers past but prediction was only possible where the past facts had been proved. She suggested that such a past finding was not necessarily a finding of fact binding other courts.

In the instant case the mother referred as JJ was subject to care proceedings in 2004 in relation to her second child after her first child T-J died of non-accidental injuries.

Both children were born out of JJ’s relationship with her partner, referred to in the case as SW. JJ’s and SW’s second child was taken into care after the judge found that one parent had caused the injuries and the other had at the very least colluded to hide the truth. JJ then began a relationship with DJ, who had children of his own from a previous relationship.
The local council brought care proceedings in respect of three children cared by the couple relying on the earlier ruling which led to the present proceedings in the Supreme Court.
Lady Hale said that a real possibility that something had happened in the past was not enough to predict that it was going to happen in the future. Such finding by a judge could have happened but it was not sufficient for the purpose. A real possibility of a child having suffered harm does not establish that he has.
First the child must have suffered or be likely to suffer significant harm, secondly that harm must be attributable to the care given or likely to be given to the child a threshold under section 31(2) has to be crossed so that a care or supervision order can be made in respect of a child.
Cases arising on the wordings of sec 31(2) have consistently held that a prediction of future has to founded on proven facts suspicion or possibilities were not enough. Such facts have to be proved on the simple balance of probabilities.

Mere suspicion may allow the authorities to start investigation and even take interim protective measures but it cannot be sufficient basis for the long term intervention frequently involving permanent placement outside the family, which is entailed in a care order.

It would be most unfair to the whole family, not only to this mother, but also to her husband and all the children, for these proceedings to continue further.
The Court of Appeal dismissed an appeal by the local authority but granted permission to appeal.
Lady Hale dismissed the local authority’s appeal. Lords Wilson, Hope and Sumption agreed, for their own reasons. Lords Reed, Clarke and Carnwath gave a joint judgment, agreeing with Lady Hale.