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House of Lords
Session 2002 - 03
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Judgments - In re O and N (minors) (FC) In re B (minors) (2002) (FC)


SESSION 2002-03
[2003] UKHL 18
on appeal from: [2002] EWCA Civ 1271
[2002] EWCA Civ 902




In re O and N (minors) (FC)

In re B (Minors) (2002) (FC)



The Appellate Committee comprised:

Lord Nicholls of Birkenhead

Lord Hoffmann

Lord Millett

Lord Scott of Foscote

Lord Walker of Gestingthorpe




In re O and N (minors) (FC)

In re B (minors) (2002) (FC)

[2003] UKHL 18


My Lords,

    1. These two appeals relate to care proceedings under the Children Act 1989. They relate to a type of case which, regrettably, occurs all too frequently.

    2. The context is the 'uncertain perpetrator' type of case, where a child suffers physical harm at the hands of his parents but the court is unable to identify which parent was the perpetrator or, indeed, whether both were perpetrators. The threshold criteria are met. The court so decides at a preliminary 'fact finding' hearing, and the case then proceeds to the 'welfare' stage and a 'disposal' hearing. In one of the two appeals before your Lordships' House Thorpe LJ expressed himself to the effect that at the disposal hearing in such a case the judge cannot disregard the risk the mother presents as a primary carer for the child in question. In the other appeal Ward LJ said the case should proceed on the basis that the child was not harmed by the mother and that there is no risk of the child suffering physical harm from her.

    3. These appeals arise from this difference in approach of two lords justices, both highly experienced in this field. Disposal hearings have yet to take place. The appeals concern the basis on which these hearings should be conducted.

    4. I must first rehearse the facts of the two cases. I shall do so in very summary form, since the detail is not material for the purpose of these appeals. The appeals raise a point of principle.

Child Y

    5. In December 2000 child K, just over a year old, was admitted to hospital and pronounced dead on arrival. He had sustained an appalling catalogue of serious external and internal non-accidental injuries, inflicted on at least four occasions. The local authority commenced care proceedings in respect of child Y, child K's elder sister. Child Y, then six years old, was eventually placed with her grandmother. Child Y has daily contact with her mother, supervised by the family. The mother's partner KR left the mother's home in December 2001, and the relationship between them appears to have ended.

    6. The case proceeded as a 'split' hearing. At the preliminary hearing Coleridge J found that KR was the perpetrator of all the injuries, that the mother could be exonerated as a perpetrator and that she had not failed to protect child K at any stage of his life. The Court of Appeal, comprising Thorpe, Rix and Arden LJJ, allowed an appeal by the local authority: see re B (Non-accidental injury: compelling medical evidence) [2002] EWCA Civ 902, [2002] 2 FLR 599. The court held that KR was a perpetrator, but there was insufficient evidence he was the sole perpetrator. Thorpe LJ said that following the filing of the position statements there were really only two questions regarding child K's death. He said, at [2002] 2 FLR 599, 607:

    "First, who perpetrated the injuries recorded by the experts? The answer to that can only be, 'either the mother or KR'. The court is unable to determine to the requisite standard which. Secondly, who failed to protect K from these injuries? Again, there can be no doubt that the mother failed to protect. KR is not involved in any way in the disposal proceedings which will follow. He is the more probable perpetrator in relation to most of these injuries. But the important factor that the judge must bring into the foundation for the disposal hearing is that he cannot disregard the risk that the mother presents as a primary carer for either Y or a future child"' (Emphasis added).

    After further observations Thorpe LJ concluded:

    "So the judge when he comes to the disposal hearing will obviously have to consider anxiously the obvious attraction of rehabilitation against the question mark which certainly attaches to the mother, at least during that period when she was in cohabitation with KR."

Child L and child C

    7. In the other case, in May 2001 child L, then aged six months, was found to be suffering from a fractured skull and several other fractures. The injuries could only have occurred whilst the child was in the care of her parents. The parents separated after child L was admitted to hospital. The father pleaded guilty to charges of causing grievous bodily harm and was sentenced to concurrent sentences of 3½ years and 2 years imprisonment. The father subsequently retracted his admission of responsibility for any injury other than the fracture to the skull. Child C, born in October 2001, is the second child of the mother and father. The local authority commenced care proceedings in respect of both children.

    8. At a preliminary hearing in April 2002 Her Honour the late Judge Downey found that the injuries were non-accidental, that the father was responsible for the fracture to the skull, that no reliance could be placed on his plea of guilty to the criminal charge relating to the other injuries, that neither parent gave any explanation to account for the other injuries, that neither parent could be exculpated as a possible perpetrator, that the injuries were caused by either or both parents whilst the child was in their care, and that the parents individually or jointly failed to protect the child.

    9. An appeal by the mother to the Court of Appeal, comprising Ward LJ and Sir Martin Nourse, succeeded in part: see re O and N (Care: preliminary hearing) [2002] EWCA Civ 1271, [2002] 2 FLR 1167. The court did not disturb any of the judge's findings, but in the course of his judgment Ward LJ said, at [2002] 2 FLR 1167, 1178, paragraph 26:

    "In my judgment this case must proceed henceforth upon the clear basis and understanding by all concerned, lawyers, social workers and experts, that L was not harmed by her mother and there is no risk that either L or C is at risk of suffering physical harm from her"' (Emphasis added)

    The court varied the form of the judge's directions order by adding an opening paragraph which included the following:

    "(e) It is not established upon a balance of probabilities that any one or more of these further injuries were caused by either the [mother] or [father]

    (f) Accordingly the [mother] must be treated as if she did not cause L to suffer significant harm within the meaning of s 31(2) of the Act. Moreover she is to be treated as if she has not caused L to suffer any physical harm or caused L or C to be at risk of suffering physical harm from her within the meaning of s 1(3)(e) of the Act.

    (g) The [mother] has caused L harm by failing to protect her from injury by the [father].' (Emphasis added)

Past events and future forecasts

    10. Before turning to the provisions of the Children Act 1989 I should make an introductory observation. Courts and tribunals constantly have to decide whether an alleged event occurred. The general rule is that if the likelihood that a past event occurred is proved to the requisite standard the law regards that event as definitely having happened. If not, it is treated as not having happened. In deciding whether proof to the requisite standard has been made out, the decision maker normally has regard to all evidential material which is of probative value.

    11. But the general rule does not always apply. Questions of proof of a past event arise in widely varying contexts. Sometimes the law limits the matters the decision maker may take into account. When this occurs, the reason is legal policy, not the requirements of logic. There may, for instance, be a particular category of matters the decision maker is not permitted to consider. The most obvious example concerns criminal trials. In general, evidence of previous misconduct is not admissible in criminal trials. Although such evidence may have probative value, in general it is excluded from consideration by juries because its probative value is outweighed by the risk of prejudice. This exclusionary rule is subject to exceptions in certain types of cases, where the accused should not be permitted to present himself as a person of good character or where the previous misconduct has particular probative value, for instance, as 'similar fact' evidence.

    12. The same broad principle is applicable when courts or tribunals peer into the future and assess the likelihood that a particular event will occur. This is an inherently imprecise exercise, so far as human conduct is concerned. In theory it is a different exercise from deciding whether somebody did or did not do something in the past. Whether or not an alleged event occurred in the past raises a question of proof. In truth, the event either happened or not. That is not so with a future forecast. The future has not happened, and future human conduct is never certain. But in practice, the past is often as uncertain as the future. The judge cannot know for certain what happened and can only assess the degree of likelihood that something happened. The same is true of the future. The decision maker has to assess the degree of likelihood that an inherently uncertain event will occur. The degree of likelihood—beyond reasonable doubt, more probable than not, real possibility and so on—required in any particular legal context raises a question of legal policy.

    13. Here again, the policy decision on the requisite degree of likelihood is a separate question from the policy decision on the matters the court or tribunal may take into account. As to the latter, the matters a decision maker may take into account are normally bounded only by the need for them to be relevant, that is, they must be such that, to greater or lesser extent, they will assist the decision maker in reaching a rational conclusion. The context may, indeed, require that this principle should apply in its full width: see, in the context of asylum cases and the difficulties of proof which beset asylum seekers, Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449, especially Brooke LJ at 458-470, and Sedley LJ at 477-479. The legal context may permit, or require, the decision maker to take into account a real possibility that a past event occurred, or even a mere possibility. Rationality does not require that only past events established on a balance of probabilities can be taken into account. Or the context may require otherwise. The range of matters the decision maker may take into account when carrying out this exercise depends upon the context. This, again, is a question of legal policy, not logic.

The threshold stage: the 'significant harm' condition

    14. Section 31(2) of the Children Act 1989 sets out two 'threshold' conditions which must be satisfied before the court may exercise its power under section 31(1) to make a care or supervision order. The purpose of this threshold requirement is to protect families, both adults and children, from inappropriate interference in their lives by public authorities through the making of care and supervision orders. Section 31(2) provides:

    "(2) A court may only make a care or supervision order if it is satisfied -

    (a)   that the child concerned is suffering, or is likely to suffer, significant harm; and

    (b) that the harm, or likelihood of harm, is attributable to -

    (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

    (ii) the child's being beyond parental control."

    15. The first limb of condition (a), the 'significant harm' condition, concerns an existing state of fact: the child 'is suffering' significant harm. In the nature of things this calls for proof, to the requisite standard, of the facts said to constitute significant harm. An unproved allegation that the child has been sexually abused or subjected to non-accidental injuries will not suffice.

    16. The second limb of condition (a) requires the court to evaluate the chance that an event will occur in the future: the child 'is likely to suffer' significant harm. In re H (minors) (Sexual abuse: standard of proof) [1996] AC 563 the House considered the matters which, in this context, the court may take into account in assessing whether the child is likely to suffer significant harm. In the context of section 31(2)(a) 'likely' does not mean more probable than not. It means a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case. This is a comparatively low level of risk. By a majority the House held that, for the purpose of satisfying this threshold level of risk in cases (such as alleged sexual abuse) in which there is a dispute over whether the child has indeed suffered past harm, the court may have regard only to harm proved to the requisite standard to have happened. Otherwise the purpose for which the threshold criteria were prescribed by Parliament could be defeated in a case where the only evidence that the child was likely to suffer harm in the future was an unproved allegation that he had suffered harm in the past. It would be extraordinary if, in respect of the self-same non-proven allegations, the self-same insufficient evidence could nonetheless be regarded as a sufficient factual basis for satisfying the court there is a real possibility of harm in the future: see [1996] AC 563, 591.

    17. This would not be an acceptable interpretation of section 31(2). This suggests that, given the purpose of the threshold criteria, both limbs of the 'significant harm' condition call for proof of facts. Like the inference that the child is already suffering harm, the inference that the child is likely to suffer significant harm must be founded on one or more proved facts, as distinct from unproved allegations. Therein lies the protection Parliament intends the threshold criteria shall provide against arbitrary intervention by public authorities. This is the principal rationale for what might otherwise seem an unduly rigid approach.

    18. The same considerations do not apply throughout the whole of the Children Act. The particular reason why the threshold conditions require proof of facts is not germane in every instance where a decision has to be made regarding the existence or extent of risk of future harm to a child. In the case of each statutory provision it is necessary to consider the language and purpose of the provision to see whether, for reasons of legal policy, any limitation should be placed on the matters the decision maker may take into account when assessing the risk in question. An example of this concerns the duties of investigation placed upon local authorities by section 47. As Scott Baker J held in re S (Sexual abuse allegations: local authority response) [2001] EWHC Admin 334, [2001] 2 FLR 776, local authorities would be prevented from carrying out effective and timely risk assessments if they could act only on the basis of proven facts.

The threshold criteria: the 'attributable' condition

    19. In Lancashire County Council v B [2000] 2 AC 147 the House considered how threshold condition (b), the 'attributable' condition, should be applied in cases such as the present two appeals, where the significant harm condition is satisfied but the court is unable to decide which of two or more carers was the perpetrator of the physical harm in question. The House decided that in such 'uncertain perpetrator' cases the phrase 'the care given to the child' in section 31(2)(b)(i) includes the care given by any of the carers, so that this condition is fulfilled even though the identity of the particular carer who was the perpetrator is not known.

    20. Section 31 and its associated emergency and interim provisions comprise the only court mechanism available to a local authority to protect a child from risk. The interpretation of the 'attributable' condition adopted by the House is necessary to avoid the unacceptable consequence that, otherwise, if the court cannot identify which of the child's carers was responsible for inflicting the injuries the child will remain wholly unprotected. As Wall J observed in re B (minors) (Care proceedings: practice) [1999] 1 WLR 238, 248, that would render the statutory provisions ineffective to deal with a commonplace aspect of child protection. The interpretation adopted by the House avoids this result while, at the same time, encroaching to the minimum extent necessary on the general principle underpinning section 31(2).

    21. In reaching this conclusion on the interpretation of the legislation your Lordships' House had very much in mind that, in consequence, judges will find themselves faced with the particularly difficult problem of proceeding with the care application but not knowing which individual was responsible for inflicting the injuries. And parents who may be wholly innocent, and whose care may not have fallen below that of a reasonable parent, will face the possibility of losing their child: see [2000] 2 AC 147, 166-167.

    22. The House now has to consider some of the practical implications of this decision at the welfare stage.

The welfare stage

    23. Crossing the threshold is not a reason for making a care order. When the threshold criteria are met the court proceeds to the welfare stage. The court must decide whether it is in the best interests of the child to make a care order as asked by the local authority. As with 'private law' orders made under section 8 of the Act, so with care and supervision orders made under section 31(1), the paramount consideration in making this decision is the child's welfare: section 1(1) and (4). This involves looking at the past and also looking into the future. In considering which course is in the child's best interests, the court will have regard to all the circumstances of the case.

    24. This has long been axiomatic in this area of the law. The matters the court may take into account are bounded only by the need for them to be relevant, that is, they must be such that, to a greater or lesser extent, they will assist the court in deciding which course is in the child's best interests. I can see no reason of legal policy why, in principle, any other limitation should be placed on the matters the judge may take into account when making this decision. If authority is needed for this conclusion I need refer only to the wide, all embracing language of Lord MacDermott in J v C [1970] AC 668, 710-711. Section 1 of the Guardianship of Infants Act 1925 required the court, in proceedings where the upbringing of an infant was in question, to regard the welfare of the infant 'as the first and paramount consideration'. Regarding these words, Lord MacDermott said:

    "I think they connote a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child's welfare as that term has now to be understood."

    In principle the same approach is equally applicable under section 1 of the Children Act 1989.

    25. The Children Act directs the court, when making a decision regarding a child's welfare, to have particular regard to the factors set out in the welfare checklist in section 1(3). One of these factors is any harm the child 'has suffered or is at risk of suffering': section 1(3)(e). Questions have arisen on the interaction of this paragraph and section 31(2) as interpreted in re H (minors) (Sexual abuse: standard of proof) [1996] AC 563 and Lancashire County Council v B [2000] 2 AC 147. The questions have arisen in three areas.

The welfare stage: 'uncertain perpetrator' cases

    26. The first area concerns cases of the type involved in the present appeals, where the judge finds a child has suffered significant physical harm at the hands of his parents but is unable to say which. I stress one feature of this type of case. These are cases where it has been proved, to the requisite standard of proof, that the child is suffering significant harm or is likely to do so.

    27. Here, as a matter of legal policy, the position seems to me straightforward. Quite simply, it would be grotesque if such a case had to proceed at the welfare stage on the footing that, because neither parent, considered individually, has been proved to be the perpetrator, therefore the child is not at risk from either of them. This would be grotesque because it would mean the court would proceed on the footing that neither parent represents a risk even though one or other of them was the perpetrator of the harm in question.

    28. That would be a self-defeating interpretation of the legislation. It would mean that, in 'uncertain perpetrator' cases, the court decides that the threshold criteria are satisfied but then lacks the ability to proceed in a sensible way in the best interests of the child. The preferable interpretation of the legislation is that in such cases the court is able to proceed at the welfare stage on the footing that each of the possible perpetrators is, indeed, just that: a possible perpetrator. As Hale LJ said in re G (Care proceedings: split trials) [2001] 1 FLR 872, 882:

    "the fact that a judge cannot always decide means that when one gets to the later hearing, the later hearing has to proceed on the basis that each is a possible perpetrator."

    This approach accords with the basic principle that in considering the requirements of the child's welfare the court will have regard to all the circumstances of the case.

    29. In such cases the judge at the preliminary hearing, while unable to identify the perpetrator, may decide that one or other of the parents, perhaps both, was guilty of failure to protect. It was submitted that herein lies a better solution to the problem. The court should assess future risk on the basis of this proved shortcoming. This would be a better way to proceed because it would avoid attaching to each parent the stigma of possible perpetrator.

    30. I do not believe this would be a satisfactory alternative. Inability to identify the perpetrator is not always accompanied by a finding of failure to protect. The judge may find that the child was injured in only one incident, by one or other of the parents, in a momentary loss of self-control. Further, when assessing future risk, failure to protect is one matter, perpetration is another. A finding of failure to protect is not a reason for leaving out of account at the welfare stage the undoubted fact that one or other of the parents inflicted the physical harm on the child. This may be important in cases where circumstances have changed since the injuries were inflicted and the parents are no longer living together.

    31. In 'uncertain perpetrator' cases the correct approach must be that the judge conducting the disposal hearing will have regard, to whatever extent is appropriate, to the facts found by the judge at the preliminary hearing. Nowadays the same judge usually conducts both hearings, but this is not always so. When the facts found at the preliminary hearing leave open the possibility that a parent or other carer was a perpetrator of proved harm, it would not be right for that conclusion to be excluded from consideration at the disposal hearing as one of the matters to be taken into account. The importance to be attached to that possibility, as to every feature of the case, necessarily depends on the circumstances. But to exclude that possibility altogether from the matters the judge may consider would risk distorting the court's assessment of where, having regard to all the circumstances, the best interests of the child lie.

    32. Similarly, and for the same reason, the judge at the disposal hearing will take into account any views expressed by the judge at the preliminary hearing on the likelihood that one carer was or was not the perpetrator, or a perpetrator, of the inflicted injuries. Depending on the circumstances, these views may be of considerable value in deciding the outcome of the application: for instance, whether the child should be rehabilitated with his mother.

    33. From what I have said above it follows that I respectfully disagree with the approach adopted by Ward LJ in the case of child L and child C. Judge Downey concluded, expressly, that the evidence was not sufficient to exclude the mother and positively identify the father as the perpetrator of the injuries other than the fractured skull. In the light of this factual conclusion it would be quite wrong for the case to proceed on the false basis that the mother had been found not to be the perpetrator. The approach adopted in Re H, followed by Ward LJ in the case of child L and child C, is not apt at the welfare stage in 'uncertain perpetrator' cases.

    34. I wholly understand that parents are apprehensive that, if each of them is labelled a possible perpetrator, social workers and others may all too readily rule out the prospect of rehabilitation with either of them because the child would be 'at risk' with either of them. As already noted, failure to protect is one thing, perpetration is another. A parent fears that, once the possibility that he or she was a perpetrator is brought into the scales, cautious social workers will let that factor outweigh all others.

    35. I understand this concern. Whether it is well founded, generally or in particular cases, is an altogether different matter. Whether well founded or not, the way ahead cannot be for cases to proceed on an artificial footing. Rather, in cases of split hearings judges must be astute to express such views as they can at the preliminary hearing to assist social workers and psychiatrists in making their assessments and preparing the draft care plan. For their part social workers, I do not doubt, will have well in mind the need to consider all the circumstances when assessing the risk posed by a carer who is, but who is no more than, a possible perpetrator. To this end transcripts of judgments given at the preliminary hearing should always be made readily available when required, so that reliance does not have to be placed on summaries or even bare statements of conclusions: see Dame Elizabeth Butler-Sloss P in re G (Care proceedings: split trials) [2001] 1 FLR 872, 876.