Care order for child at risk must be based on facts

Re H (minors); House of Lords (Lord Goff of Chieveley, Lord Browne- Wilkinson, Lord Mustill, Lord Lloyd of Berwick and Lord Nicholls of Birkenhead); 14 December 1995

A care order under section 31(2)(a) of the Children Act 1989 could be made only if, on the basis of facts and not suspicion, the court concluded on the balance of probability that the child was suffering harm or there was a real possibility of such harm.

The House of Lords (Lord Browne-Wilkinson and Lord Lloyd dissenting) dismissed an appeal by the local authority from the Court of Appeal's dismissal ([1995] 1 FL: 643) of the local authority's appeal from Judge Davidson QC's decision that he had no jurisdiction to make a care order.

Section 31(2) of the Children Act 1989 provides: "A court may only make a care order or supervision order if it is satisfied (a) that the child concerned is suffering, or is likely to suffer, significant harm . . ."

In 1993 D stated she had been sexually abused by her stepfather. She was accommodated with foster parents and interim care orders were made in respect of her sister and two stepsisters. In 1994 the stepfather was acquitted of four counts of rape of D. However the local authority applied for care orders in respect of D's sister and two stepsisters. Its case was based solely on the alleged sexual abuse of D by her stepfather. Judge Davidson QC dismissed the application since he could not be sure to the requisite high standard of proof that D's allegations were true, and although he was not impressed by the evidence of the stepfather or the mother, and was prepared to hold there was a real possibility that D's evidence was true.

James Munby QC (Sharpe Pritchard for council solicitor) for the local authority; Allan Levy QC and Judith Claxton (Freeth Cartwright Hunt Dickens, Nottingham; Fletchers, Nottingham) for the mother and father; Lindsey Kushner QC (German & Soar, Nottingham) for the guardian ad litem.

Lord Nicholls said that under section 31(2) the court must be satisfied of the existence or likelihood of harm. The appeal concerned the need for the court to be "satisfied" that the child was suffering significant harm or was "likely" to do so.

In section 31(2) Parliament had stated the prerequisites which must exist before the court had power to make a care order. The prerequisites marked the boundary line between the differing interests of the parents in caring for their child and the circumstances in which the interests of the child might dictate a need for his care to be entrusted to others. In section 31(2) Parliament had stated the minimum conditions which must be present.

In that context Parliament could not have been using "likely" in the sense of more likely than not. The context showed that in section 31(2)(a) likely was being used in the sense of a real possibility that could not be sensibly ignored having regard to the nature and gravity of the feared harm in the particular case.

The burden of establishing the existence of the conditions rested on the applicant for the care order. Where the matters in issue were facts the standard of proof in non-criminal proceedings was the balance of probability. Built into the standard was a generous degree of flexibility in respect of the seriousness of the allegation. In cases involving the care of children the standard of proof was the balance of probability. Contrary observations were not an accurate statement of the law. There was no difficulty in applying that standard to the threshold conditions in both limbs of section 31(2)(a).

The local authority's case was based on the second limb - that the three girls were likely to suffer significant harm. The starting-point was that courts acted on evidence. Unresolved judicial doubts and suspicions could no more form the basis of a conclusion that the second threshold had been established than that the first had been established.

The three younger girls were not at risk unless D was abused in the past. If she was not abused there was no reason for thinking the others might be. To decide that the others were at risk because there was a possibility that D was abused would be to base the decision, not on fact, but on suspicion: the suspicion that D might have been abused. That would lower the threshold prescribed.

Lord Goff and Lord Mustill agreed. Lord Browne- Wilkinson and Lord Lloyd dissented.