The Supreme Court have given their decision in Re J, looking at whether a finding of fact that an injury was caused and neither parent can be excluded, forms a basis for finding that such a parent would be a risk to children in a new relationship.
They conclude, to skip to the chase, that it does not. But before there are fireworks and street parties / wailing and gnashing of teeth, wait, it is a bit more nuanced than that.
To make it simpler, Fred and Wilma find themselves in care proceedings, as a result of Pebbles suffering a skull fracture. The Court finds that the skull fracture was caused non-accidentally, and that it must have been caused by either Fred, or Wilma, who were the only people caring for Pebbles at the relevant time.
The Court looks very carefully to see whether it is possible to say that it is more likely than not that Fred caused the injury, or Wilma, or whether one has to make a finding that neither of them can be excluded as a possible perpetrator. (The last of these findings is usually called a “Lancashire” finding, named after the leading case that decided that this was an option open to the Court where the evidence was compelling that the injury must have been caused by Fred OR Wilma, but not sufficient to say it was Fred and not Wilma or vice versa)
Now, the Court, as a result of a previous Supreme Court decision (Re S-B Children 2009) http://www.bailii.org/uk/cases/UKSC/2009/17.html have to be careful not to dance on the head of a pin and strive too hard to decide that it was Fred, if the evidence was not there.
If the Court feel that it is not possible to say with confidence that it was Fred, they shouldn’t make the finding that Fred did it just because he seems more likely than Wilma. Re S-B suggests that there’s real value, where the evidence is there to allow it, in making a positive finding about whether it was Fred or Wilma, but that Courts should not strive to force the issue if the evidence isn’t there. (The Supreme Court put that in terms – the risk of doing that is the risk that the Judge gets it wrong, and someone is treated as a risk who is not, and more importantly that someone who IS a risk is treated as though they were not)
When the Court considers, if they make a Lancashire finding, the risk to Pebbles, they are entitled to consider the risk from both parents, in the light of the finding that neither is excluded. That doesn’t mean that Pebbles can’t live with them, it will depend on a careful assessment of risk, and of how that risk can be managed in the future.
So, if Fred and Wilma go on to have another child, the threshold criteria is capable of being made out on the basis of the findings about Pebbles.
One of them caused that injury to Pebbles, and if they are both in the same household caring for the new baby, that risk is a live one. [It won’t mean that they are barred from caring for the new baby, the Judge will consider all of the factors – passage of time, work done, maturation, how they present now, but the Court is entitled to assess whether that risk is sufficiently addressed to make them safe carers for the new baby, or whether the risk is too high]
But what has been more murky, is what happens if Fred and Wilma split up, and Fred gets together with Betty* and has a baby.
[*Don’t pretend you’ve never wondered what Betty saw in poor dull Barney Rubble]
There have been strong arguments that Fred poses a risk to the new baby, because of the findings that he couldn’t be excluded from being the person who hurt Pebbles. Equally, there have been strong arguments that Fred should not be treated as a risk to the new baby UNLESS the Court made a positive finding that he WAS the person who hurt Pebbles. At some stage, the Supreme Court was going to have to step in and answer it once and for all, and they have finally done so.
The law is clear that when assessing likelihood of future harm, it doesn’t have to be that the risk is more likely than not to happen, it is a “risk which cannot sensibly be ignored’ BUT that in deciding whether there is a risk at all, there has to be an established fact to put into the pot, or on the scales.
So, Fred and Betty have a baby. Is the ‘fact’ that Fred was found to be one of two people who must have injured Pebbles, a ‘fact’ that can be put in the pot to mean that there is a risk that he might injure the new baby?
The Supreme Court decided that this is not a ‘fact’ which can legitimately go into the pot when deciding risk to Fred and Betty’s baby.
“In re S-B is authority for the proposition that a real possibility that this parent has harmed a child in the past is not, by itself, sufficient to establish the likelihood that she will cause harm to another child in the future.”
And here (my underlining)
- The question which has been put to us, as set out in the Statement of Facts and Issues, is whether (i) a finding that a child has suffered harm while in the care of more than one person and (ii) a finding that one or both of the carers have perpetrated that harm are findings of fact which may be relied on in subsequent proceedings relating to only one of the potential perpetrators, in support of a conclusion that a subsequent child is likely to suffer significant harm in a new family unit of which that potential perpetrator is part.
- The answer which I would give, applying the test set out in para 49 of In re S-B (Children) (Care Proceedings: Standard of Proof)  AC 678, is that these findings may be relied on only to the extent that they may be relevant to the issue the court has to decide. But to find that this information is relevant does not go far enough. This is because such findings would not be sufficient, on their own, to establish that a child in the new family unit was likely to suffer significant harm. If they are the only findings that are available, they must be disregarded in the assessment for lack of sufficiency. A prediction of future harm based on what has happened in the past will only be justified if one can link what has happened in the past directly and unequivocally with the person in the new family unit in whose care the subsequent child is living or will now live.
It is very important to note that the Supreme Court were keen to stress that the problem here arises in cases where the findings boil down to one single issue “Who caused the injuries to Pebbles, or who can be excluded from causing those injuries?”
They go on to say that in most cases, the case will not be pleaded on the basis of that one finding, and indeed was not in the original fact finding hearing here.
As McFarlane LJ pointed out, there were several facts found by Judge Masterman which might have been relevant to an assessment of whether it was likely that this mother would harm children in the future. There was “(a) gross and substantial collusion expressly designed to prevent the court identifying the perpetrator; (b) failure to protect T-L; (c) deliberately keeping T-L away from health professionals in order to avoid the detection of injury” (para 109). The local authority have chosen not to rely upon these. They acquiesced in the decision to treat this as a one point case. The result was that this mother returned to the household where she had previously been looking after the three subject children for some time without (as far as we know) giving any cause for concern. She has now been looking after her new baby for more than a year, also without (as far as we know) giving any cause for concern.
If findings were made about Fred and Wilma in relation to those sorts of matters, they could go into the ‘pot’ for any children Fred or Wilma have with other people.
In this case, it was the reliance of the LA on the single issue of “Fred is a risk to this baby, because the Court made a Lancashire finding about him not being excluded as having caused the injury to Pebbles” that meant that the threshold criteria on the new baby was not crossed.
This is emphasised again here:-
Finally, I would observe that if, as has been said, the current law is causing consternation, that appears to me to be an over-reaction. It is important to emphasise, as Lady Hale has done at paras 52-54, that the court’s inability to establish whether X was the perpetrator of harm to a child in the past does not necessarily mean that the threshold set by section 31(2)(a) cannot be met in relation to a child now being cared for by X. It means however that some other cause for concern, besides the possibility that X was the perpetrator of the harm, must be established. The onus thereby imposed is, in a case of that kind, one which should ordinarily be capable of being discharged where substantial causes for concern currently exist. In practice, in the great majority of cases where a child has been harmed by one of its primary carers but it has not been possible to identify which of them was responsible, and only one of them is now responsible for the care of another child, it will be possible to establish facts on the basis of which a prognosis as to the future risk of harm can be made. The case at hand would itself appear to have been such a case, if the evidence before the court had not been deliberately restricted.
It is going to be important, therefore, in care proceedings, for the schedule of findings to be drawn up carefully, particularising a chain of events both before and after the injury, and making it plain those areas on which the Court can properly make findings that BOTH Fred and Wilma are culpable for, those areas which FRED is culpable for, those areas that WILMA is culpable for and then the ultimate question of who caused the injury being for the Court to determine whether it was FRED, WILMA or one of them with it being impossible to exclude either on the balance of probabilities.
And thereafter, for any subsequent care proceedings involving children of Fred and Wilma to not rely on the single “whodunit” fact, but to rely on the totality of matters which were found in the judgment.
It is noteworthy that in fact, what the Supreme Court in effect said to this particular Local Authority is, that the threshold isn’t made out on the way that you have pleaded the case (that Fred was the subject of a Lancashire finding), but you can pick through the original judgment about and make a threshold based on the findings that were definitive findings as to the parent’s culpability and failings, and just issue the proceedings again.
So it is not as earth-shattering as ones first impression of it might be. It will mean a careful consideration on any threshold document involving a parent who had previously been the subject of a Lancashire style finding, and also a careful consideration of the schedule of facts proposed on any forthcoming finding of fact hearing.
[And of course none of any all of that tells us how a Court will decide the future of Fred and Betty’s child, just whether in making their deliberations they should pay any attention to the finding that Fred may be one of the two people who injured Pebbles – NO, they should not. ]