In re O and N (minors) (FC) In re B (minors) (2002) (FC)
36. I must mention a further point. The burden of proof on care order applications rests on the local authority. But, it was submitted, to proceed as mentioned above would improperly reverse the burden of proof. The parent would have the onus of exculpating himself when the local authority failed to prove he was a perpetrator but the possibility that he was a perpetrator was left open. I am unable to accept this submission. It cannot stand with the decision in Lancashire County Council v B  2 AC 147. As already noted, the effect of this decision was that a care order may be made in this type of case even though the local authority failed to prove, to the requisite standard of proof, which parent was the perpetrator of the physical harm. The approach described above does no more than give effect to this decision at the welfare stage in the only sensible way which is possible. On the present appeals, I add, no submission was made that the House should reconsider the decision in Lancashire County Council v B  2 AC 147, nor have I heard anything to suggest the House should do so.
The welfare stage: unproved allegations of harm
37. The second area where a question has arisen about the interaction of section 1(3)(e) and section 31(2) does not directly concern the present appeals. Nevertheless I should comment briefly so that the observations made above are seen in context. This second area relates to the type of case where the threshold criteria are satisfied on one ground, such as neglect or failure to protect, but not on another ground, such as physical harm. At the welfare stage, to what extent may the court take into account the possibility that the non-proven allegation might, after all, be true?
38. This raises a question of legal policy. On the one hand there is the family protection purpose of the threshold criteria. On the other hand there is the general principle that at the welfare stage the court has regard to all the circumstances. On balance, I consider that to have regard at the welfare stage to allegations of harm rejected at the threshold stage would have the effect of depriving the child and the family of the protection intended to be afforded by the threshold criteria. Accordingly, at the welfare stage in this type of case the court should proceed on the footing that the unproven allegations are no more than that.
39. This accords with the approach of the Court of Appeal in re M and R (Child abuse: evidence)  2 FLR 195. On an application for a care order the judge found there was a real possibility that sexual abuse had occurred but the evidence was not sufficient to prove the allegations to the requisite standard. The threshold criteria were met on another ground. The children had suffered emotional harm at the hands of the mother and her partner and were likely to suffer significant harm in the future. The judge made an interim care order and adjourned the case to consider whether to return the children to the mother and her partner. The local authority appealed against the judge's refusal to make a care order. One ground of appeal was that the judge had erred by not taking the allegations of sexual abuse into account at the welfare stage.
40. The Court of Appeal, comprising Butler-Sloss, Henry and Saville LJJ, dismissed the appeal. Part of the reasoning of the decision was to the effect that it would be extraordinary if Parliament intended that, in one and the same case, evidence insufficient to satisfy section 31(2)(a) should be sufficient nevertheless to satisfy section 1(3)(e): see Butler-Sloss LJ at  2 FLR 195, 204. Butler-Sloss LJ drew attention to the unsatisfactory results which could follow in practice were this so.
41. I should also note that the position is not materially different when unproved allegations of harm are abandoned, as distinct from being rejected by the court. This situation arose in re R (Care: disclosure: nature of proceedings)  1 FLR 755. The local authority made, but later abandoned, allegations of sexual abuse within the family. The threshold criteria were satisfied on a different ground, namely, neglect and emotional harm. Charles J held that as matters stood the local authority and the court should assess risk on the basis that the allegations of sexual abuse were just that and nothing more. Part of the background, and relevant as such, was that the allegations had been made. Also part of the background, and likewise relevant, was the fact that the allegations had not been proved and, as matters stood, would not be proved. It would be wrong for the local authority to deal with the family on the basis that it believed the children had been sexually abused. That overall approach, the judge noted, accorded with the current reality.
Private law cases and section 1(3)(e)
42. The reasoning of the decision in re M and R (Child abuse: evidence)  2 FLR 195 raises a further question on the interaction of section 1(3)(e) and section 31(2). The question is whether the interpretation of section 31(2)(a) adopted in re H is applicable to section 1(3)(e) in private law proceedings. Butler Sloss LJ considered that it is: see  2 FLR 195, 203.
43. The case of re M and R concerned an application for a care order, but the same question arose in private law proceedings in the earlier case of re P (Sexual abuse: standard of proof)  2 FLR 333. There the Court of Appeal, comprising Beldam LJ and Wall J, reached a similar conclusion. In that case, unlike 'uncertain perpetrator' cases, sexual abuse was not proved. In refusing to order unsupervised contact the judge took into account the substantial risk that sexual abuse by the father had occurred. The Court of Appeal allowed the father's appeal. Wall J said that the judge committed a 'fundamental error' in taking this risk into account. He noted the undesirable practical consequences flowing from the judge's approach, at  2 FLR 333, 343:
44. This point raises a similar question in relation to section 1(3)(e) as the House considered in re H (minors)(Sexual abuse: standard of proof)  AC 563 in relation to section 31(2)(a). In considering whether a child is at risk of suffering harm the court may take into account all the circumstances of the case. But is this subject to the constraint that, as a matter of policy, the court may not infer the child is at risk of suffering harm in the future where the only evidence that the child is at risk is an unproved allegation that he suffered harm in the past?
45. Butler-Sloss LJ, with her immense experience, seems to have entertained no doubt how this question ought to be answered: see  2 FLR 195, 203. But the point does not call for decision on the present appeals. Nor was the point fully argued before the appellate committee. So I say only that, as at present advised, I find attractive the conclusions of the Court of Appeal in re M and R (Child abuse: evidence)  2 FLR 195 and in re P (Sexual abuse: standard of proof)  2 FLR 333. I do so, even though section 1(3)(e) lacks the threshold context of section 31(2)(a). It would be odd if, on this point, the approach in proceedings for a section 8 order were different from the approach in care proceedings.
The present appeals
46. I would allow the appeal concerning children L and C. I would set aside paragraphs 1 and 4 of the order of the Court of Appeal dated 26 July 2002. The case should proceed on the footing of the facts proved and the views expressed by Judge Downey.
47. I would dismiss the appeal concerning child Y. In assessing risk the judge at the disposal hearing should have regard, among other matters, to the facts that the mother failed to protect child Y, that KR is the more probable perpetrator, and that the mother might have been the perpetrator. In each case the judge will of course have regard to events taking place during the unfortunate lapse of time which has occurred since the preliminary hearings.
48. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Nicholls of Birkenhead and for the reasons he gives I too would allow the appeal concerning children L and C and dismiss the appeal concerning child Y.
49. I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Nicholls of Birkenhead, with which I agree. For the reasons he gives I too would allow the appeal in the case of children L and C, dismiss the appeal in the case of child Y, and make the order which he proposes.LORD SCOTT OF FOSCOTE
50. I have had the advantage of reading in advance the opinion of my noble and learned friend, Lord Nicholls of Birkenhead. For the reasons he gives, with which I am in full agreement, I, too, would allow the appeal concerning children L and C, make the order which he proposes concerning those children and dismiss the appeal concerning child Y.
LORD WALKER OF GESTINGTHORPE