The Court of Appeal gave judgment this week in an interesting case where they attempted to cut through the thicket of authorities on whether having identified a parent as one of a pool of possible perpetrators in an earlier case, the Court should approach a future case involving the parent as either a sole parent or in a new relationship. Is there a likelihood of future harm made out as a result of the first finding, or is the likelihood only applicable where the Court found that the parent HAD caused the injuries and the previous finding be completely ignored if it is a ‘pool of perpetrators’ finding, or does each case turn on its individual facts?
It has been settled law for some time that a Court faced with a non-accidental injury (or indeed sexual allegation) can find that the threshold is met even if it is not possible to identify which of the parents is the perpetrator of the abuse, and this was extended still further with the parents AND a third party being the potential perpetrators and the Court being unable to exclude the parents from being the perpetrator of the harm/abuse ( which is commonly called a “Lancashire” finding – I wonder if they call it that in Lancashire, or if like French kissing and Brussel sprouts, they have an entirely different term for it in the eponymous locale)
Indeed, there are authorities to indicate that where it is not possible for a Judge to exclude on the balance of probabilities one of the parents, the Court should not ‘dance on the head of a pin’ to try to decide, for example that the injury was 60% likely to have been committed by mum, and 40% by dad, so that dad is not ‘more likely than not’ to have caused the injury. (Re SB)
But there is a conflict between various authorities as to whether, when a parent is the subject of a “Lancashire” finding and goes on to separate from the other subject of that finding and go on to found a new family, that finding has any evidential weight in establishing the threshold with the new child, or whether it should be ignored completely.
RE J (CHILDREN) (2012)
 EWCA Civ 380
All of my quotations here are taken from the lead judgment of Lord Justice McFarlane, who has again done most of the heavy lifting, in a case which has required a great deal of it.
The Court identify, with the succinctness that is their hallmark, the issues of judicial importance in the appeal here :-
16. Put shortly the point raised by this appeal is as follows:
a) Where a previous court has found that there is a ‘real possibility’ that one or other or both of two or more carers have perpetrated significant harm on a child in his/her care;
b) Is that ‘finding’ a ‘finding of fact’ that may be relied upon in subsequent proceedings relating only to one of the potential perpetrators in support of a conclusion that there is a ‘real possibility’ or likelihood of a subsequent child in a new family unit of which he/she
is part suffering significant harm or is it a ‘finding’ that must be totally ignored in the subsequent proceedings?
17. There have been authoritative statements in judgments of the Court of Appeal and the
Supreme Court which assert that the previous adverse ‘finding’ must be totally
ignored in any subsequent proceedings involving a new family unit, on the basis that a
‘finding’ that there is a ‘real possibility’ is not a ‘finding of fact’ at all as, by
definition, it falls short of a finding on the balance of probabilities. Despite these
apparently clear authoritative statements, the appellant argues that such statements
are, or may well be, at odds with the fully reasoned analysis of the approach to be
taken to the statutory threshold criteria in Children Act 1989, s 31 as set out by Lord
Nicholls of Birkenhead in a trilogy of cases in the House of Lords.
The particularly troubling authority, is the Supreme Court authority of Re SB, and this passage in Baroness Hale’s judgment :-
“49 There is a further reason to remit the case. The judge found the threshold crossed in relation to William on the basis that there was a real possibility that the mother had injured Jason.That, as already explained, is not a permissible approach to a finding of likelihood of future harm. It was established in In re
H  AC 563 and confirmed in In re O  1 AC 523 , that a prediction of future harm has to be based upon findings of actual fact made on the balance of probabilities. It is only once those facts have been found that the degree of likelihood of future events becomes the “real possibility” test adopted in In re H. It might have been open to the judge to find the threshold crossed in relation to William on a different basis, but she did not do so.”
And the assertion therefore is that in allocating a pool of perpetrators, the Court has not said in relation to any particular one of them that they HAD caused the injury, but rather that an injury HAS been caused and that there is a real possibility that it was caused by A or B. That is sufficient for THAT particular child, but on moving onto another child born to A or B at a later stage, it does not satisfy the threshold criteria for the younger child.
As a Local Authority hack, it would greatly trouble me for the Court to conduct a fact-finding hearing, and decide that the injury was caused by either A or B, and neither could be excluded, but for A and B to then part company and have new families, and the finding to be completely excluded from consideration (rather than an approach where there is a historical risk to be assessed and considered by the Court and the parents change in circumstances, passage of time, any reflection or admissions etc be taken into account as to what action, if any is required in relation to the new child)
You will spot immediately, that the Court of Appeal are in difficulties, since they can’t over-rule what Baroness Hale said in Re SB (though if they consider that the interpretation of what Baroness Hale said has been misconstrued, they can provide some clarification)
The next problematic authority is Re F (Interim Care Order) 2011, and the facts of that case are set out below :-
The second recent authority which has been at the forefront of our consideration is ReF (Interim Care Order)  EWCA Civ 258. Re F involved a father in respect of whom there had been a previous finding of fact relating to his eldest child who had suffered two leg fractures. In care proceedings relating to that child the finding as to the perpetrator of the fractures was that both of that child’s parents were in the pool of possible perpetrators. Time then moved on, the father separated from that child’s mother and he became a parent for a second time when a baby was born to his new partner. The local authority issued care proceedings with respect to the new baby on the basis that the previous finding of the father being a possible perpetrator was sufficient to cross the threshold criteria on the basis that the new baby was likely to suffer significant harm. The trial judge dismissed the care proceedings on the basis that the previous finding was insufficient to support a ‘likelihood’ threshold finding in relation to the new baby. The trial judge did, however, grant the local authority permission to appeal to the Court of Appeal.
The Court of Appeal, when hearing Re F, grappled with the Re SB issue here (my bolding):-
Mr Heaton contends, and Mr Hayden concedes, that the reasoning so clearly set out in In Re S-B, at , has caused great consternation among local authorities, among other professionals who work in the area of public law and among academic commentators. Mr Heaton’s aspiration is to persuade the Supreme Court to modify its demand for proven factual foundation in uncertain perpetrator cases. Take, says he to us this morning, a case of two parents who are consigned to a pool of possible perpetrators of non-accidental injuries to their child; and who then separate; and who each, with other partners, produce a further child, who together become the subject of conjoined care proceedings. Are both those applications for care orders required to be dismissed even though before the court is, on any view, a perpetrator of injuries to that older child? No doubt there are hard and worrying cases. But the requirement of proven factual foundation is a bulwark against the state’s removal of a child from his family, which I consider very precious. I also applaud the Supreme Court’s regular acknowledgement of the fact that, although it can depart from its previous decisions, the exercise of departure is highly unsettling for the law and should be undertaken only with great caution.
For those reasons I would not wish us to foist upon the Supreme Court a full appeal in circumstances in which it had not itself had the opportunity to consider whether to accept it.”
As luck, for good or ill, would have it, the parents in Re F made some other admissions which were capable of resolving the threshold, and therefore the issue of whether threshold was met fell by the wayside, but the problem as outlined by Mr Heaton above, remained a live one, hence the Court of Appeal revisiting it in this case of RE J.
In a nutshell, here are the counter arguments deployed by the parties :-
76. Mr Cobb’s attractive presentation of his case leads the judicial listener
through the words of Lord Nicholls endorsing, as he does, the earlier utterances of Wall J and Hale LJ. The Local Authority’s ultimate submission is that the court should adopt theapproach of Lord Nicholls in Re O and N to the determination of the “likely to suffer” threshold criteria in a later case, with the result that an uncertain perpetrator from anearlier determination is regarded as equally likely to have been the cause of past significant harm, and that that established “fact” is a sufficient vehicle to satisfy the threshold in the later case.
77. Attractive though that argument is, Mr Paul Storey QC on behalf of JJ and Miss Rowe QC on behalf of DJ argue that it is untenable. They submit that to compare the stage of proceedings being described by Lord Nicholls in Re O and N with the stage of proceedings being undertaken by HHJ Hallam in the present case is not to compare like with like. In the former the threshold was crossed and there was no strict evidential yardstick to be deployed by the court in exercising its jurisdiction in affording the child’s welfare paramount consideration in deciding what, if any, order to make in the concluding “welfare stage” of the proceedings. Judge Hallam, on the other hand, was required to operate within a strict evidential context, only relying on past facts which had been established on the balance of probabilities.
78. The opposing counsel submit that Mr Cobb’s argument falls down because a finding that someone is in the pool of perpetrators is no more than a finding on the basis that there is “a real possibility” that they perpetrated past injuries, a finding which by definition falls short of the balance of probabilities. To use that finding as the basis for holding that there is a further “a real possibility” (that is a likelihood) of that person causing significant harm in the future, is to find the threshold crossed on the basis of two successive findings of “real possibility” and no finding at all of fact on the balance of probabilities in relation to the one, now separated, parent. Mr Storey submits that such an outcome, on the present law, would be impermissible and that parents and children would risk permanent separation by the State in circumstances where absolutely nothing adverse about the parental care had been established on the balance of probabilities.
In weighing matters up, the Court of Appeal warned against the risk of artificially limiting or restricting the issues and evidence available to the Court and gave this helpful guidance (again, bolding is mine)
81. Pausing there, I would question the desirability of artificially limiting the judicial consideration to just one, albeit important, aspect of the case. A judge hearing a fresh s 31 application, some years later, about a new family unit which involves a parent about whom adverse findings have previously been made in another family context, should be exposed to the full detail of the available evidence and be permitted to come to her own overview and determination taking into account all of the material insofar as she considers it to be relevant and giving it such weight as she may see fit at the time of her determination. Artificially to limit the judicial exercise in a manner which invites the court to ignore part of the evidence in the case, might well set up the legal point for determination in a clinically clear and legally accessible manner, but it cannot, in my view, represent a proper exercise of the judicial task. In determining whether the threshold criteria are satisfied in relation to each of these three children as at 3rd March 2011 a judge must be under a duty to acquaint herself with all of the available evidence and then bring it to bear on the ultimate question of whether, in the context of this case, each or any of these three children can be said to be “likely to suffer significant harm” attributable to failures in parental care likely to be given to him as at that date.
82.I would go further and criticise the decision to tee up the preliminary issue for
determination within an otherwise entirely empty evidential context. By the relevant date seven years had passed between the death of T-L and the commencement of child protection procedures in relation to the new family unit. JJ was seventeen when T-L died and she is now twenty five. Much has no doubt happened in her life in the intervening period, some of it has continued to involve SW. On the positive side it is apparently the case that she had lived with these three children as DJ’s partner for well over two years prior to the implementation of protective measures and without apparently causing any degree of concern to child protection professionals.
83. When a local authority issues a s 31 application seeking the court’s determination that the threshold criteria is crossed at the present time in relation to a child or children, the court must be under a duty to ensure that it has before it not only evidence of what may have happened in one of the parent’s lives years before, but also some account of the events in that parent’s life during the following years and the current circumstances in the family unit which is now being brought before the court within the proceedings. The extent, quality and character of the evidence that a judge may need will of course vary from case to case. But in the present case it would seem to me that, in addition to social work evidence as to what, if any, social work and other professional contact there has been with the mother and/or the new family over the intervening period, together with a basic social work assessment of the children’s current circumstances within the home, there should be an expectation for the mother to file evidence which should include an up to date statement of what she now says with respect to her care of T-L and the matters that had been the subject of HHJ Masterman’s findings.
84. A judge in care proceedings at the threshold stage has the important responsibility of determining whether or not he or she is satisfied that, at the relevant date, that is therefore in the current period of time, the threshold criteria are or are not satisfied with respect to a particular child. Artificially to limit the judicial exercise to the consideration of facts relating to a period seven years earlier and, further, to limit consideration to only some of those facts, seems to me to fall well short of the required evaluation of the circumstances of the new child before the court in the current time period.
85. Despite making these negative observations about the process adopted in this case, I have nothing but professional sympathy for HHJ Hallam who was presented with the task of determining the preliminary issue in accordance with ground rules chosen by the parties. The Local Authority chose not to file any additional evidence. A direction for the mother to file a statement was made but produced no more than a position statement. The Local Authority expressly elected not to rely upon any of the negative findings made by HHJ Masterman other than those relating to the perpetrators of physical injury. Having been presented with the case within this restricted compass, HHJ Hallam was further handicapped by the fact that she was not HHJ Masterman, who had plainly regarded the aspects of the case that fell short of the direct physical injury of T-L as being of an equal standard of concern with the infliction of those injuries.
86. It is sometimes convenient, efficient and realistic for local authorities to make concessions as to aspects of the evidence. Indeed, such no doubt is the stuff of every day experience in courts conducting care proceedings. There is, however, a danger of such matters being elevated to the status, as would be the case in civil proceedings, of points of pleading, thereby removing from the judge’s consideration evidence which may, despite the view of the local authority, be of some importance
I think that this paragraph, during the Court of Appeal’s analysis of the authorities and the issue at hand, demonstrates the Court’s willingness to approach this with child protection being at the forefront :-
92. Standing back from these cases, there is, I would suggest, a qualitative difference, in terms of the need for child protection, between a situation where absolutely no adverse findings have been made as to past child abuse, and a situation where serious findings of child abuse have been made in relation to a child in the joint care of her parents either one or both of whom were the perpetrator(s).
I am, of course, biased, but that seems to me an entirely sensible approach. Of course there is a difference in the risks to be considered where one parent has been found to be a potential perpetrator of really serious injuries as opposed to a parent who has never come to the attention of the Local Authority, and pretending otherwise does not address the issues. (That doesn’t mean that the previous finding automatically damns the parent, but it must be right that there is a risk to be weighed and assessed in relation to whether there is a risk of future harm arising from it)
108. With respect, I do not consider the very narrow evaluation of this issue which it is said the short judicial statements in Re S-B and Re F require is supportable on the basis of the earlier authorities, the principal one in this context being the Court of Appeal judgment of Robert Walker LJ in Lancashire County Council v B which allowed the appeal in relation to the child minder’s child, B. In my view the Lancashire case can be readily distinguished from the present case. The only culpable matter that could have been established against the child minder was that she had caused the injuries to child A. The evidence was insufficient to establish, on the balance of probability, that she was the perpetrator. There was no suggestion that she would in the future be part of a group of carers with the parents (about whom, collectively, there was a finding). There was therefore no proven fact upon which the risk of future harm could be established.
110. The Lancashire case in the Court of Appeal is undoubtedly authority for the proposition that where there is absolutely no adverse finding of fact against a parent, the likelihood threshold cannot be established. It is not, however, authority for the obverse proposition that you can only establish the likelihood threshold if you can identify the perpetrator irrespective of any other adverse findings that have been made.
111. Likewise Re S-B is not authority for the proposition ‘if you cannot identify the past perpetrator, you cannot establish future likelihood’. In that case, which was of a oneoff (‘whodunit’) injury, there was no question of failure to protect and no finding of collusion. Thus when, in paragraph 49, Baroness Hale describes as it as impermissible to hold that the likelihood threshold in relation to the non-injured child, William, was established on the basis only that there was ‘a real possibility’ that the mother had caused the injury, she does so in the context of there being no other adverse findings against that mother.
And here is the conclusion:-
114. At paragraphs 79 to 87 I criticised the narrow and legalistic approach adopted before HHJ Hallam in the present case. In my view, where there are significant adverse findings made on the balance of probability against a parent in previous proceedings, irrespective of the previous court having been unable to identify a perpetrator, a court seized of an application under s 31 has a duty to look at all of the available material including those adverse findings. Each case will no doubt differ from each other both on the question of whether in the new circumstances the s 31 threshold is actually established and on the question, if it is, whether the welfare of the child requires protection under a s 31 order. These are matters for courts to evaluate on a case by case basis and are not the stuff of a blanket policy based on the single point that,irrespective of what else has been found, if the past perpetrator has not been provedthe threshold cannot be crossed.
Given that the Supreme Court in RE SB weren’t deciding this issue, but the principle has been derived from authority building on judicial decisions made within the SB case, it would seem to now be the law, unless and until the point comes before the Supreme Court, that :-
A Court is not obliged to ignore a previous finding purely because it was made on a “Lancashire” type basis (that a parent is one of a pool of perpetrators), but has to look at all of the available material to consider whether the threshold is made out.
That appears to me to be a very good compromise between the polar opposites of ‘A past finding of harm equals likelihood of future harm always’ and ‘if you were only identified as one of a pool of perpetrators rather than the actual perpetrator, that must be ignored when determining future risk to other children’
130. The difficulties that have arisen in this case, in Re F and no doubt elsewhere, originate from the Lancashire case in the Court of Appeal and have been given additional focus and emphasis by Baroness Hale’s words in paragraph 49 of Re S-B. We were told, and I readily accept, that the situation is a cause for concern amongst child protection agencies.
131. Given the importance of the point in terms of its impact on the ground for families and for those charged with protecting children, there is a pressing need for the issue to be determined by the Supreme Court so that a clear and full statement of the applicable law is achieved.
I am not sure whether any of the parties to the case intend to appeal the Court of Appeal decision, but I read that sentence to mean that they might be pushing at an open door in such an application for leave to appeal.
I’m reminded that of the three most crucial case-law arguments / decisions which could be categorised as a debate between a narrow construction of the law and the Court’s ability to make the orders that they consider in the best interests of children, all three have now been ruled on and gone against the narrow legal construction.
(the previous two being the debate that certain remarks in RE H &R meant that the standard of proof with serious allegations was higher and that the difference with such serious allegations between the civil standard and the criminal standard was largely illusory, and the ‘imminent risk of really serious harm’ being the soundbite test for ICOs where the care plan was separation)