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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> G (A Child: Scope of Fact-Finding) [2025] EWCA Civ 1044 (31 July 2025) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2025/1044.html Cite as: [2025] EWCA Civ 1044 |
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ON APPEAL FROM THE FAMILY COURT AT WEST LONDON
HHJ Willans (sitting as a Deputy High Court Judge)
ZW25C50018
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE PETER JACKSON
and
LORD JUSTICE BAKER
____________________
| G (A Child: Scope of Fact-finding) |
____________________
KC
and Christopher Archer (instructed by London Borough of Ealing Legal Services) for the Appellant Local Authority
Andrew
Bagchi
KC
and Emma Hudson (instructed by Russell Cooke Solicitors) for the Appellant Child through their Children's Guardian
William Tyler
KC
and Chris Barnes (instructed by Oliver Fisher Solicitors) for the Respondent Mother
Hearing date: 8 July 2025
____________________
Crown Copyright ©
Lord Justice Peter Jackson:
Introduction
The earlier history
"an individual, who finds it hard to regulate her own emotions, and can be aggressive and verbally abusive when upset. [She] is seen to be unpredictable and erratic in her behaviour which includes her acting aggressively toward others."
"99. Given these indications of potential, it was with considerable sadness that we observed her functioning and parenting capacity to decrease over the course of this assessment. The trigger for this was the result of the DNA test which showed that in all likelihood Mr A was not Z's biological father. This appeared to represent a profound loss for her in terms of the emotional support which she believed would have been ongoing from Mr A and his family, as well as in terms of how she viewed herself and her situation. Also significant at this time for her is likely to be her unconscious fears about Z's wellbeing, due to her little brother dying of cot death and her possible unsolved feelings about this."
The assessment was terminated and it was recommended that the mother and Z return to live with the mother's grandmother, who would be Z's primary carer with a view to becoming his special guardian. The mother and Z accordingly moved there on 20 November 2018. Z slept in a cot in the mother's bedroom.
"I would describe her as strong willed feisty character when I first met her and during the initial visits and early stages, she was doing incredibly well and was acting more mature than her age. Unfortunately, after the result of the DNA test I could see she became less focused on Z and more focused on Mr A and her standards that she had set early on were not being achieved any more."
The investigation of Z's death
The proceedings about X
"1. M misused cannabis during her pregnancy with X, placing her at risk of suffering significant harm;
a. M had urine testing as part of her antenatal care and tested positive for cannabis on the 05.07.2024 and on the 16.12.2024.
2. M has a diagnosis of Chronic, Complex PTSD with psychotic features, placing X at risk of suffering significant harm in her mother's care;
a. M presents as highly triggered and quick to anger, without any coping mechanisms in place, placing X at risk of suffering significant harm.
b. M declined intervention with the perinatal mental health team during her pregnancy with X placing her at risk at suffering significant harm.
3. M has an extensive history with social services involvement since 2008. On 18.12.2018 her first child sadly passed away at 5 months old. On 14.05.2020, M was arrested on suspicion of the murder of the child. On 01.09.2022 inquest into the death identified M as the main carer and determined possible shaken baby syndrome but severity of trauma did not meet the criteria. The inquest concluded with an open verdict with cause of death given as a Head injury."
"The Death of Z
1. On or around [date] December 2018, X's maternal half-brother, Z (a boy, born [date] 7.2018), at the age of 5 months, sustained the following injuries:
a. Extensive, bilateral, intraneural and perineural haemorrhage involving the cervical spine nerve roots and ganglia.
b. Generalised cerebral and cerebellar swelling (with effacement of the basal cisterns and of cerebrospinal fluid of the foramen magnum).
c. Retinal haemorrhages in the right eye and bilateral optic nerve haemorrhages.
d. Encephalopathy causing primary respiratory arrest and collapse.
e. Ischaemia in the brain and spinal cord as a result.
2. The cause of Z's injuries (and each of them) was abusive head trauma.
a. The trauma consisted of shaking and/or impact.
b. The level of force required to cause the injuries was in excess of rough handling.
c. Collapse will have occurred shortly after the episode of shaking and/or impact.
3. Z's injuries (and each of them) were caused by M, in whose care he was at the time.
4. Z died at 20.51 on [date] December 2018. There was no evidence of any underlying natural disease that caused or contributed to his death.
5. Z died as a result of the injuries set out at paragraph 1. Accordingly, his death was caused by M.
6. X is at risk of suffering similar significant physical harm.
The Mother's Mental Health
7. M has a diagnosis of chronic complex post-traumatic stress disorder with psychotic features.
8. M declined intervention with the perinatal mental health team during her pregnancy and was not receiving support or treatment for her condition.
9. As a result of her condition, M is easily triggered and quick to arouse. This places X at risk of suffering significant physical and emotional harm.
Cannabis
10. M has been an habitual user of cannabis for many years.
11. M was using cannabis around the time of Z's death.
12. M misused cannabis during her pregnancy with X, testing positive for cannabis ante-natally on 5th July 2024 and 16th December 2024.
13. X has been exposed to the risk of developmental harm in utero. She is at risk of emotional harm and neglect as a result of the impact of cannabis use on M's capacity to parent and her emotional unavailability at times due to cannabis use."
In argument on behalf of the local authority, Mr Twomey
KC
accepted that paragraphs 7 onwards are free-standing threshold allegations that do not depend on the findings sought in the previous paragraphs.
"In her report Dr Van Velsen noted that the mother had experienced chronic diffculties when she was younger from her own mother's drug use, her parents' hostile relationship and poor home conditions. She also noted the mother's past history of significant substance misuse. She noted a pattern of a lack of transparency. Dr Van Velsen observed that in relation to the mother's personality there is a long and consistent description of the mother being emotionally labile, hostile, angry and non-collaborative. Although she expressed the view that the mother does not appear to have significant symptoms of borderline personality disorder, there were some underlying borderline personality diffculties. Although Dr Van Velsen expressed the view that there was some evidence that over time the mother had matured, which process can play a significant part in the improvement of personality diffculties, in her opinion there remained ongoing vulnerabilities in her situation and she was heavily reliant on her family for support."
The judge's decision
a. The interests of the child (which are relevant but not paramount)
b. The time that the investigation would take
c. The likely cost to public funds
d. The evidential result
e. The necessity or otherwise of the investigation
f. The relevance of the potential result of the investigation to the future care plans for the child
g. The impact of any fact-finding process upon the other parties
h. The prospects of a fair trial on the issue
i. The justice of the case.
(1) The delay (anticipated to be close to a year because of a range of difficulties in assembling the evidence at this distance in time), the high expense, the exacerbation of stress on the mother, and the consequent harmful effect on X, mean that the grounds for embarking on a fact-finding hearing in this case must be clear and compelling.
(2) Yet some issues are so significant and so requiring of determination that delay, and even significant delay, has to be countenanced. It is difficult to conceive of circumstances in which a question of fact-finding that needed to be answered to ensure a child was safe would not be pursued simply because of delay.
(3) The necessity of the investigation and its relevance to the future care plans for X lay at the heart of the decision.
(4) Other considerations did not ultimately point strongly one way or another.
(1) A finding which would or be likely to identify an existing and continuing risk of a significant nature and which, without fact-finding determination, could not be properly brought into the process of risk assessment, would almost always require adjudication by way of fact-finding hearing. The question is whether the care planning for X would in fact or in all likelihood be materially different if the court found that, 7 years previously and whilst herself a child, the mother had acted in a manner which led to the death of Z.
(2) The coronial review showed that the local authority's case in relation to Z's death has a meaningful foundation. However, it is not asserted that the death was the result of cruelty, as opposed to an impulsive loss of control.
(3) If the local authority proved its case (denied by the mother) that there is current evidence of her acting impulsively, the court could act on that basis.
(4) Planning is focused on what causes risk (here impulsivity) and the question of how that might play out should not be limited to past outcomes. Care planning and risk assessment will not materially change as a result of a finding about Z's death. Planning can have regard to risks of loss of control, including by shaking, without a finding being made about Z's death.
(5) In fact, the local authority had formulated a plan for X without the issue being determined.
(6) A plan for adoption could not be based on events that almost certainly occurred in mere seconds, many years ago when the mother was herself a child, as opposed to being based on an up-to-date risk assessment.
"32) … Of course, a 'shaking' event might be associated with a more malicious act conducted in bad faith which could include actions with a sadistic or similar motivation. Plainly that would fall far outside of the category of impulsive behaviour referenced above. However, it seems clear to me that no party in this case envisages the likely pursuit, let alone finding of such a nature. Given the passage of time and the available information (considered by both Police and Coroner) there really is scant basis for proceeding on the basis that the Court might reach a conclusion of such a character. There are very strong grounds for holding that any finding in this case would likely recognise the event as being one of temporary loss of control.
33) I recognise it is not for this Court to attempt a mini trial on the evidence available as one does not know what the totality of evidence would be should a fact finding be undertaken. I have proceeded above on the basis that a finding were made but within a likely context of a loss of control in the moment rather than a more sustained or malicious action. I do not consider this to amount to a quasi-mini trial given it appears to reflect entirely the issues of risk before me by those seeking a fact-finding and also gives regards to the real challenges in a detailed assessment beyond that which we already know of events which occurred such a time ago. It is most likely the evidence received will closely follow that which was laid down in subsequent years.
34) I have stepped back and reflected on this point with care. I consider it is likely to rest centrally within any conclusions I reach. I have taken the view that it is better to proceed on the assumption the LA will make out a case of the Mother being responsible for the matters alleged although I have caveated that in the manner set out above. It is only by doing this that I have been able to properly assess the impact the same will have on care planning and risk assessment. In doing so I have struggled to identify why the care planning and risk assessment will materially change as a result of this finding being made. I made this enquiry of the LA. Reference was made as to the potential for an adoptive outcome and I questioned as to how the LA's case, which would not otherwise support adoption, could become one of adoption as a result of a finding as to events occurring almost certainly in mere seconds, many years ago when the Mother was herself a child. For my part I remain unable to conceive of circumstances that would permit this marked change of direction. Whilst the case put before the Court might be for placement I cannot see that this will have been set by any fact-finding.
35) I accept that for those working with the Mother in the future or those planning their ability to work with the Mother in the future, that an answer to questions of this sort are bound to be helpful. By definition such a conclusion will provide a Court based determination on balance of probability. But I do not understand why those working in such a setting would be unable to bring into their care and safety planning the prospect of a range of risk outcomes including that which would be subject to fact-finding. I consider, and agree with those acting for the Mother, that the risk planning is focused on what it is that causes risk (here impulsivity). The question of how that might play out should not be limited only to those outcomes which have been established to have previously arisen as a result. Any such risk planning would be short sighted in the extreme. Rather the risk planning would take a broader approach in its evaluation of the best way to manage risk. Put simply it is most unlikely any care planning would be structured simply to guard against a future risk of 'shaking' given any future risk would on balance likely arise in a different way. But risk planning would be able to have regard to risks including loss of control and conduct towards the child, including by 'shaking' without such a finding being made.
36) An obvious question was as to how the current assessment has been able to conclude (as it has) without this issue being determined. I consider the LA did not have an answer to this and I judge this is the case because there is no answer that sits comfortably with the argument of need for fact-finding. The LA did reference points in the assessment which note the fact the issue had not been determined but the assessment did not restrict its ability to provide a conclusion without the same being determined.
37) There is significant strength in the point that any assessment of current risk and the planning to mitigate the same is bound to be focused on and assisted by the existing evidence of current care informed by other available expert evidence, available network support and other present matters than it would be by the circumstances pertaining at the time of Z's death. The Mother makes the point that as at 17 April 2025 she was being told the professional view was that she was to return into the community supported by her family. Whilst positioning has changed due to perceived difficulties arising since, it is very hard to reconcile this planning with the continuing need for the Court to undertake fact-finding to inform safety planning and risk assessment. Viewed in this way there is a fundamental question as to the extent to which any fact-finding will in fact take the case forward."
(1) The issue does not need to be determined before the local authority can consider safety planning, risk assessment and their final evidence. It is not accepted that in principle the degree of risk to X would be greater if a finding of loss of control in relation to Z was made. That would confuse risk with outcome. It is also not accepted that the nature of risk is different if such a finding is made. Assessment of the mother does not therefore require the issue to be determined first.
(2) The absence of criminal prosecution does not of itself justify fact-finding by this court.
(3) There is no basis for believing that a failure to make findings now will by necessity cause future difficulties. Professionals are able to assess the fundamentals of risk without a need to determine the actions of the mother 7 years ago. A determination would not have an impact on the ability to dispose of the case justly. A finding would in all likelihood necessitate a further assessment. There is a danger that this would turn out to be a circular process. The focus of the case should be on the circumstances now as opposed to then.
(4) The ultimate conclusion against fact-finding is supported by other factors, which standing alone would not have been conclusive themselves. They include delay, cost, impact on the mother, and resultant impact on X. There are residual concerns, arising from the passage of time, about the fairness of any fact-finding hearing.
The appeal
1. The judge wrongly concluded that the allegations concerning the injuries to and cause of death of the subject child's sibling should not be subject to a fact-finding process. The court was thereby unable to adjudicate upon the potential dangers to the subject child arising from her mother and prevented itself from making an informed decision on the risk of harm to her.
2. The judge was wrong to conclude that risk to the subject child could be assumed to be based on impulsivity and no more, without first deciding whether the local authority had proved its allegations against the mother and, if so, undertaking a risk assessment thereafter based on any findings made. This approach to risk was speculative.
3. The judge erred in refusing to investigate the local authority's allegations concerning the mother's culpability in the death of her first child on the basis of an erroneous conclusion that the mother's impulsivity was the only risk factor. In its evidential references document, the local authority highlighted a number of wider canvas points which, in its submission, were relevant to the context in which that child met his death. The Court attached undue weight to the mother's "impulsivity" and insufficient, if any, weight to the other circumstances surrounding his death, such as the mother's mental health, her cannabis misuse and her wavering commitment to her son in a context where she was prioritising spending time with Mr A and her emotional focus was largely directed to the problems in the relationship with Mr A.
4. The judge decided that a fact-finding enquiry into Z's death was unnecessary on the incorrect basis that a risk assessment of the mother could be undertaken on the basis of the mother's alleged impulsivity when she had made no concessions as to any such behaviour and none of the alleged recent impulsivity had consequences of a gravity similar to the allegations concerning her care of Z.
5. The judge's approach to the issues of (a) public interest in identifying perpetrators of child abuse and (b) the prospects of a fair trial was flawed.
6. The judge erred in two significant respects when determining not to undertake a fact-finding hearing in relation to the allegations against the mother concerning Z's death:
a. in placing weight on an indication having been given in a meeting on 17th April 2025 that a transition home might be in contemplation;
and
b. in proceeding on the basis that the assessment at the residential unit had "concluded (as it has) without this issue being determined" and that they had not been restricted in their ability to provide a conclusion without the findings being determined."
1. The judge was wrong in his conclusion that a finding that the mother had brought about the death of a previous child, Z, by abusive handling would not be material to a current assessment of the risk of harm that she currently presents to a baby or infant child in her care. The relevance of such a finding is all too clear to see. The last time the mother had the unsupervised care of a baby, he tragically died in suspicious circumstances and there is persuasive evidence to suggest that he died as a result of inflicted injury and that she, the mother, was the perpetrator. It is axiomatic that a positive finding to that effect would be bound to be relevant to the question as to whether it would be safe for the subject child X to be placed in the care of her mother, and if so, as to what would be the scope and nature of protective measures necessary to arrange to mitigate any properly identified risk of harm.
2. The decision ignores the binary nature of the standard of proof in care proceedings. The court would either find that the injuries were inflicted by the mother or that they were not. Any risk assessment could only properly take place against the background of a determination of what had actually happened, not what might have happened. The spectrum of risk in a case where the previous child could have been killed by his parent is far too wide to suggest that a viable and effective assessment could take place contemplating all of the forensic possibilities ranging from an unknown and/or innocent cause of death to deliberate infliction of very significant harm.
3. The notion as posited by the judge that any assessment, including a risk assessment, could proceed on the basis of all of the possible posited scenarios is wrong in law. If, for example, the local authority/assessor took the view that it was simply too unsafe for X to be looked after by her mother because of the circumstances of Z's death, that would be an impermissible conclusion absent any finding of fact that the mother had handled him abusively. In those circumstances the mother would be quite entitled to submit that this would be an unfair basis upon which her separation from X could be justified. In short, the issue cannot properly be fudged in the way the learned judge's conclusions require.
4. The judge's conclusions as to the proper way to analyse the risks presented by the facts in this case were wrong. It was wrong for him to find that, in this case, it would be a flawed approach to focus on the outcome of an abusive event, rather than the risk of an abusive event happening in the first place. On one viable scenario, the last time the mother acted impulsively when she had sole care of a child, that child died as a result of abusive handling. The outcome could not have been more serious. A proper analysis must consider not just the magnitude of the risk of harmful event taking place (impulsive momentary loss of control), but also the gravity of the consequences of that event (death of a child). Just to focus on the former without consideration of the latter is illogical and a defective assessment of the risk of harm. Any viable risk assessment would be bound to address both elements.
5. The judge was wrong to have regard to the passage of time (7 years) as being of significance to the assessment of the risk of harm when there was plenty of evidence before the court of the mother's ongoing personality difficulties, impulsive and worrying behaviour which, on the face of it, stand in harmony with the wider canvas of evidence which suggests that in 2018 she could well have handled Z abusively so as to cause his death.
(1) The binary system of proof means that as a matter of law the court is required to assess risk on the basis of proven facts and not on assumptions or suspicions. The judge was therefore wrong to find that risks to X could be properly assessed without a determination of whether her mother was responsible for Z's death.
(2) It was speculative to assume that, if the mother caused Z's death, she did so impulsively.
(3) The evidence of the mother's impulsivity, contested by her, does not relate to situations comparable in gravity to Z's death. The judge wrongly focused on the magnitude of the risk but did not give due consideration to the gravity of the consequences.
(4) Further, the judge wrongly approached the question of the public interest, the history of care planning, and the fairness of a trial (these matters alone not being said to justify reversal).
The broader legal context
"The starting point here is that courts act on evidence. They reach their decisions on the basis of the evidence before them. When considering whether an applicant for a care order has shown that the child is suffering harm or is likely to do so, a court will have regard to the undisputed evidence. The judge will attach to that evidence such weight, or importance, as he considers appropriate. Likewise with regard to disputed evidence which the judge accepts as reliable." 589C
"A decision by a court on the likelihood of a future happening must be founded on a basis of present facts and the inferences fairly to be drawn therefrom." 590A
"The court must have before it facts on which its conclusion can properly be based. That is clearly so in the case of the first limb of section 31(2)(a). There must be facts, proved to the court's satisfaction if disputed, on which the court can properly conclude that the child is suffering harm. An alleged but non-proven fact is not a fact for this purpose. Similarly with the second limb: there must be facts from which the court can properly conclude there is a real possibility that the child will suffer harm in the future. Here also, if the facts are disputed, the court must resolve the dispute so far as necessary to reach a proper conclusion on the issue it has to decide." 590B
"Thus far I have concentrated on explaining that a court's conclusion that the threshold conditions are satisfied must have a factual base, and that an alleged but unproved fact, serious or trivial, is not a fact for this purpose. Nor is judicial suspicion, because that is no more than a judicial state of uncertainty about whether or not an event happened. I must now put this into perspective by noting, and emphasising, the width of the range of facts which may be relevant when the court is considering the threshold conditions. The range of facts which may properly be taken into account is infinite. Facts include the history of members of the family, the state of relationships within a family, proposed changes within the membership of a family, parental attitudes, and omissions which might not reasonably have been expected, just as much as actual physical assaults. They include threats, and abnormal behaviour by a child, and unsatisfactory parental responses to complaints or allegations. And facts, which are minor or even trivial if considered in isolation, when taken together may suffice to satisfy the court of the likelihood of future harm. The court will attach to all the relevant facts the appropriate weight when coming to an overall conclusion on the crucial issue."
"In re P. (A Minor) (Care: Evidence) [1994] 2 F.L.R. 751 is another instance where the same problem arose. There the only matter relied upon was the death of the child's baby brother while in the care of the parents. Douglas Brown J. held that it was for the local authority to prove that the death was non-accidental and that, since they failed to do so, there was no factual basis for a finding of likelihood of harm to the surviving child."
"2. If a legal rule requires a fact to be proved (a "fact in issue"), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are zero and one. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of zero is returned and the fact is treated as not having happened. If he does discharge it, a value of one is returned and the fact is treated as having happened."
For the purposes of a case management decision of this kind, this well-known passage risks being reductive. Z's death is not to be treated as not having happened, and there are a number of 'facts' surrounding it that cannot reasonably be doubted. Z suffered a head injury from which he died. There has been no account of an accident and, given his age, there is therefore a strong case that this was an inflicted injury of a shaking/impact character. Given the mother's complete denial, the only 'fact' that could not be relied upon to satisfy the threshold for a final order in X's case without a judicial finding is that the harm was attributable to her under section 31(2)(b).
(1) What type of harm has arisen and might arise?
(2) How likely is it to arise?
(3) What would be the consequences for X if it did?
(4) To what extent might the risks be reduced or managed?
Analysis
"27. … A finding which would or be likely to identify an existing and continuing risk of a material/significant nature and, which without fact-finding determination, could not be properly brought into the process of risk assessment, will in my assessment almost always require adjudication by way of fact-finding hearing. To fail to do so would mean any care planning would be structured without regard to the risk leaving the subject child at risk of harm. In such a case the care planning would be materially changed from what it would otherwise have been had a finding not been made…
28. The question for me in this analysis is as to whether the care planning for X would in fact or in all likelihood be materially different by reason of the Court finding that some 7 years previously and whilst herself a child the Mother acted in a manner which led to the death of Z?"
While all relevant factors had to be considered, the fulcrum of the balancing exercise was therefore the question of whether a finding about Z's death would realistically be likely to have a material impact on the orders that might be made about X.
"JUDGE WILLANS: … I am not going to engage in a mini trial. I did say at the start that I might be talking in terms of what-ifs. But taking the local authority's case at its highest, I mean, we are all familiar with cases involving these sort of issues without this outcome, and we are all aware of the conclusions courts often come to which is not, necessarily, an intended or malicious action of temporary loss of control and the like. Evidentially, when one looks at something which happened a year ago, the court often reaches that conclusion, unless there is something that stands out, that demonstrates that there was more going on. If you are looking back now at eight years, the prospects shifting from that, at most, is going to be very challenging. I mean it would probably be realistic to take the view that the local authority's case at its highest would be, in a moment of something such as frustration or temporary loss of control, there was a shake. That is probably, it seems likely, as far as one might go, taking at its highest.
MR ARCHER: I would refine that slightly, my Lord, respectfully and say in a moment of madness, given the vulnerabilities which the mother had and which she continues to have."
And shortly after that:
"JUDGE WILLANS: … That is the nub of it and you say, well, that is impulse, this is impulse and we need to follow that. It is not as simple as that, but you are saying there are impulsive behaviours now, that might be an impulsive response and, therefore, we need to be able to work through the risks that may be associated with further impulsive behaviours if X remains in her mum's care.
MR ARCHER: Yes.
JUDGE WILLANS: Are you not able to care plan with that in mind, in terms of risk assessments? In terms of, you know, safety plans and structures around the child. Is that not possible?
MR ARCHER: My Lord, my submission on that would be the gravity of the risk is relevant to the qualities of a safety plan, the structure of a safety plan. If the mother's impulsive behaviour, as a result of her mental health difficulties, as a result of cannabis misuse, the local authority would aver, behaves impulsively, it is relevant to know whether, in a moment of impulsive behaviour, the sort of harm that is inflicted, is as serious as occasioned to Z. That is the nexus that I suggest there is between these two events. The relevance is there, because of the fact that these are underlying, innate difficulties that the mother has, which are a factor in what happened in December 2018, we say, and what might happen in the future."
In these exchanges, counsel was taking a fair view of the local authority's case, and there is no good explanation for its decision to resile from that approach on appeal.
"2a. M presents as highly triggered and quick to anger, without any coping mechanisms in place, placing X at risk of suffering significant harm."
This clearly refers to, or includes, a risk of significant physical harm.
Paragraph 6 of the revised threshold document, which relates to X, reads:
"6. X is at risk of suffering similar significant physical harm."
Paragraphs 7-9 of that document, which relate to the mother, read:
"The Mother's Mental Health
7. M has a diagnosis of chronic complex post-traumatic stress disorder with psychotic features.
8. M declined intervention with the perinatal mental health team during her pregnancy and was not receiving support or treatment for her condition.
9. As a result of her condition, M is easily triggered and quick to arouse. This places X at risk of suffering significant physical and emotional harm."
There is then reference to the mother's cannabis use.
"… risk planning would be able to have regard to risks including loss of control and conduct towards the child, including by 'shaking'…"
Conclusion
Lord Justice Baker:
(1) What is the type of harm that might arise?
(2) What is the likelihood of it arising?
(3) What consequences would there be for the child if it arose?
(4) What steps could be taken to reduce the likelihood of harm arising or to mitigate the effects on the child if it did?
KC
submitted in the course of the appeal hearing, whilst the events in 2018 cannot be ignored entirely, it would be impermissible to proceed on a suspicion or quasi-finding that she was responsible for inflicting Z's injuries as a basis for assessing risk.
"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."
The second stage is when, having concluded that the threshold criteria are satisfied, the court is deciding what order should be made for the children's future care. At that point, the court applies s.1 of the Act. Under s.1(1) the child's welfare is the paramount consideration and the court is required by s.1(4) to have regard to the factors in the "welfare checklist" in s.1(3). The list includes, under paragraph (e), "any harm which he has suffered or is at risk of suffering".
"in section 31(2)(a) likely is being used in the sense of 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."
"The starting point here is that courts act on evidence. They reach their decisions on the basis of the evidence before them. When considering whether an applicant for a care order has shown that the child is suffering harm or is likely to do so, a court will have regard to the undisputed evidence. The judge will attach to that evidence such weight, or importance, as he considers appropriate. Likewise with regard to disputed evidence which the judge accepts as reliable. None of that is controversial. But the rejection of a disputed allegation as not proved on the balance of probability leaves scope for the possibility that the non-proven allegation may be true after all. There remains room for the judge to have doubts and suspicions on this score. This is the area of controversy.
In my view these unresolved judicial doubts and suspicions can no more form the basis of a conclusion that the second threshold condition in section 31(2)(a) has been established than they can form the basis of a conclusion that the first has been established ….
At trials … the court normally has to resolve disputed issues of relevant fact before it can reach its conclusion on the issue it has to decide. This is a commonplace exercise, carried out daily by courts and tribunals throughout the country. This exercise applies as much where the issue is whether an event may happen in the future as where the issue is whether an event did or did not happen in the past. To decide whether a car was being driven negligently, the court will have to decide what was happening immediately before the accident and how the car was being driven and why. Its findings on these facts form the essential basis for its conclusion on the issue of whether the car was being driven with reasonable care. Likewise, if the issue before the court concerns the possibility of something happening in the future, such as whether the name or get-up under which goods are being sold is likely to deceive future buyers. To decide that issue the court must identify and, when disputed, decide the relevant facts about the way the goods are being sold and to whom and in what circumstances. Then, but only then. can the court reach a conclusion on the crucial issue. A decision by a court on the likelihood of a future happening must be founded on a basis of present facts and the inferences fairly to be drawn therefrom.
The same, familiar approach is applicable when a court is considering whether the threshold conditions in section 31(2)(a) are established. Here, as much as anywhere else, the court's conclusion must be founded on a factual base. The court must have before it facts on which its conclusion can properly be based. That is clearly so in the case of the first limb of section 31(2)(a). There must be facts, proved to the court's satisfaction if disputed, on which the court can properly conclude that the child is suffering harm. An alleged but non-proven fact is not a fact for this purpose. Similarly with the second limb: there must be facts from which the court can properly conclude there is a real possibility that the child will suffer harm in the future. Here also, if the facts are disputed, the court must resolve the dispute so far as necessary to reach a proper conclusion on the issue it has to decide."
"this would effectively reverse the burden of proof in an important respect. It would mean that once apparently credible evidence of misconduct has been given, those against whom the allegations are made must disprove them. Otherwise it would be open to a court to hold that, although the misconduct has not been proved, it has not been disproved and there is a real possibility that the misconduct did occur. Accordingly there is a real possibility that the child will suffer harm in the future and, hence, the threshold criteria are met. I do not believe Parliament intended that section 31(2) should work in this way."
"It is, of course, open to a court to conclude there is a real possibility that the child will suffer harm in the future although harm in the past has not been established. There will be cases where, although the alleged maltreatment itself is not proved, the evidence does establish a combination of profoundly worrying features affecting the care of the child within the family. In such cases it would be open to a court in appropriate circumstances to find that, although not satisfied the child is yet suffering significant harm, on the basis of such facts as are proved there is a likelihood that he will do so in the future."
"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."
"The reasons given by Lord Nicholls for adopting the approach which he did in Re H remain thoroughly convincing. The threshold is there to protect both the children and their parents from unjustified intervention in their lives. It would provide no protection at all if it could be established on the basis of unsubstantiated suspicions: that is, where a judge cannot say that there is no real possibility that abuse took place, so concludes that there is a real possibility that it did. In other words, the alleged perpetrator would have to prove that it did not. Mr Cobb accepts that it must be proved on the balance of probabilities that a child "is suffering" significant harm. But nevertheless he argues that those same allegations, which could not be proved for that purpose, could be the basis of a finding of likelihood of future harm. If that were so, there would have been no need for the first limb of section 31(2)(a) at all. Parliament must be presumed to have inserted it for a purpose."
"8. The leading case on the interpretation of these conditions is the decision of the House of Lords in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563. Three propositions were established which have not been questioned since. First, it is not enough that the court suspects that a child may have suffered significant harm or that there was a real possibility that he did. If the case is based on actual harm, the court must be satisfied on the balance of probabilities that the child was actually harmed. Second, if the case is based on the likelihood of future harm, the court must be satisfied on the balance of probabilities that the facts upon which that prediction was based did actually happen. It is not enough that they may have done so or that there was a real possibility that they did. Third, however, if the case is based on the likelihood of future harm, the court does not have to be satisfied that such harm is more likely than not to happen. It is enough that there is "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" (per Lord Nicholls of Birkenhead, at p 585F).
9. Thus the law has drawn a clear distinction between probability as it applies to past facts and probability as it applies to future predictions. Past facts must be proved to have happened on the balance of probabilities, that is, that it is more likely than not that they did happen. Predictions about future facts need only be based upon a degree of likelihood that they will happen which is sufficient to justify preventive action. This will depend upon the nature and gravity of the harm: a lesser degree of likelihood that the child will be killed will justify immediate preventive action than the degree of likelihood that the child will not be sent to school."
"Section 1(3) requires a court, when considering whether, among other things, to make an order under s 31, to have regard in particular to a number of matters. The subsection then sets out those matters in the welfare checklist. Item (e) of this list is: 'any harm which [the child] has suffered or is at risk of suffering'.
If there is a dispute as to whether the child has suffered or is at risk of suffering harm the task of the judge, when considering whether to make any order whether it be a care or supervision order under s 31 or a s 8 order, must be to resolve that dispute. Unless this is done, it will remain in doubt whether or not the child has suffered harm or is at risk of suffering harm and thus it will remain in doubt whether or not there exist factors which Parliament expressly considered to be of particular importance to be taken into account. The question is how such a dispute is to be resolved.
To our minds there can be only one answer to this question, namely the same answer as that given by the majority in Re H and R (above). The court must reach a conclusion based on facts, not on suspicion or mere doubts. If, as in the present case, the court concludes that the evidence is insufficient to prove sexual abuse in the past, and if the fact of sexual abuse in the past is the only basis for asserting a risk of sexual abuse in the future, then it follows that there is nothing (except suspicion or mere doubts) to show a risk of future sexual abuse.
Mr Newton submitted that this is not so. His point was that if there is a real possibility of harm in the past, then it must follow (if nothing is done) that there is a risk of harm in the future. To our minds, however, this proposition contains a non sequitur. The fact that there might have been harm in the past does not establish the risk of harm in the future. The very highest it can be put is that what might possibly have happened in the past means that there may possibly be a risk of the same thing happening in the future. Section 1(3)(e), however, does not deal with what might possibly have happened or what future risk there may possibly be. It speaks in terms of what has happened or what is at risk of happening. Thus what the court must do (when the matter is in issue) is to decide whether the evidence establishes harm or the risk of harm."
"If Parliament had intended that a mere suspicion that a child had suffered harm could form the basis for making a final order, it would have used the same terminology of "reasonable grounds to suspect" or "reasonable grounds to believe" as it uses elsewhere in the Act. Instead, as Butler-Sloss LJ pointed out in In re M and R, it speaks of what the child is suffering or is likely to suffer."
"to acknowledge that a finding of impulsivity by its nature requires risk assessment when considering care of a young child but that the format of the risk assessment and the resultant care planning does not require the clear definition of the outcome or outcomes that might follow from the same."
The judge accepted this submission, saying (at paragraph 35):
"I do not understand why those working in such a setting would be unable to bring into their care and safety planning the prospect of a range of risk outcomes including that which would be subject to fact-finding. I consider, and agree with those acting for the Mother, that the risk planning is focused on what it is that causes risk (here impulsivity). The question of how that might play out should not be limited only to those outcomes which have been established to have previously arisen as a result. Any such risk planning would be short sighted in the extreme. Rather the risk planning would take a broader approach in its evaluation of the best way to manage risk. Put simply it is most unlikely any care planning would be structured simply to guard against a future risk of 'shaking' given any future risk would on balance likely arise in a different way. But risk planning would be able to have regard to risks including loss of control and conduct towards the child, including by 'shaking' without such a finding being made."
"I simply do not accept that in principle the degree of risk to [X] is greater if this finding is made. As I have explained this is to confuse risk with outcome. I also do not agree the nature of the risk is different if this finding is made. Rather this is a risk which falls into a broad category of risks which sit on a spectrum of potential flowing from a finding of impulsive behaviour. The real question is not what may have happened on one occasion and then planning to prevent that but asking what in principle could happen and creating a plan to guard against a range of risks."
"(a) the interests of the child (which are relevant but not paramount);
(b) the time that the investigation will take;
(c) the likely cost to public funds;
(d) the evidential result;
(e) the necessity or otherwise of the investigation;
(f) the relevance of the potential result of the investigation to the future care plans for the child;
(g) the impact of any fact finding process upon the other parties;
(h) the prospects of a fair trial on the issue;
(i) the justice of the case."
"Many of the factors identified in Oxfordshire overlap with each other and the weight to be given to them will vary from case to case. Clearly, the necessity or otherwise of the investigation will always be a key issue, particularly in current circumstances. Every fact-finding hearing must produce something of importance for the welfare decision."
Lord Justice Bean:
KC for the local authority that this was the correct question. The issue was whether the judge's answer to the question was wrong.
a) There was no evidence to suggest that the mother had been a cruel or sadistic parent to Z. The allegation was one of baby shaking caused by a momentary loss of control and resulting in fatal brain injuries;
b) That incident occurred 7 years ago, when the mother herself was a child;
c) X was born in January 2025. Care proceedings were issued and an interim care order granted. The baby remained with her mother and at the time of the hearing before the judge there was no current intention of the local authority to separate them. As the judge observed:
"I questioned as to how the LA's case, which would not otherwise support adoption, could become one of adoption as a result of a finding as to events occurring almost certainly in mere seconds many years ago when the mother was herself a child."
d) The local authority had advanced a basis for threshold which included that:-
"M has a diagnosis of chronic, complex PTSD with psychotic features placing X at risk of suffering significant harm in her mother's care. M presents as highly triggered and quick to anger, without any coping mechanisms in place, placing X at risk of suffering significant harm."
"I cannot see that a determination on the balance of probabilities as to what happened [to Z] will have a meaningful impact on being able to dispose of this case justly."
"These are not always easy decisions and the factors typically do not all point the same way. Most decisions will have their downsides. The reasoned case management choice of a judge who approaches the law correctly and takes all relevant factors into account will be upheld on appeal unless it has been shown that something has gone badly wrong with the balancing exercise."