supreme cout judgement re threshold

Hilary Term
[2013] UKSC 9 
On appeal from: [2012] EWCA Civ 380 
JUDGMENT 
In the matter of J (Children) 
before 
Lord Hope, Deputy President
Lady Hale
Lord Clarke
Lord Wilson
Lord Sumption
Lord Reed
Lord Carnwath

JUDGMENT GIVEN ON 
20 February 2013 
Heard on 17 and 18 December 2012 Appellant Respondent
Stephen Cobb QC Paul Storey QC
Justin Gray Martin Todd
(Instructed by Stockton- (Instructed by Wollen
on-Tees Borough Council) Michelmore Solicitors)
Respondent
Pamela Scriven QC
Ben Boucher-Giles
(Instructed by Leigh
Turton Dixon) LADY HALE


1. In a free society, it is a serious thing indeed for the state compulsorily to
remove a child from his family of birth. Interference with the right to respect for
family life, protected by article 8 of the European Convention on Human Rights,
can only be justified by a pressing social need. Yet it is also a serious thing for the
state to fail to safeguard its children from the neglect and ill-treatment which they
may suffer in their own homes. This may even amount to a violation of their right
not to be subjected to inhuman or degrading treatment, protected by article 3 of the
Convention. How then is the law to protect the family from unwarranted intrusion
while at the same time protecting children from harm?
2. In England and Wales, the Children Act 1989 tries to balance these two
objectives by setting a threshold which must be crossed before a court can consider
what order, if any, should be made to enable the authorities to protect a child. The
threshold is designed to restrict compulsory intervention to cases which genuinely
warrant it, while enabling the court to make the order which will best promote the
child’s welfare once the threshold has been crossed. That threshold is defined by
section 31(2) of the Act as follows:
“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; 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.”
Once that threshold is crossed, section 1(1) of the Act requires the court to treat the
welfare of the child as its paramount consideration, having regard to the checklist
 Page 2 of factors listed in section 1(3). These include “any harm which [the child] has
suffered or is at risk of suffering” (section 1(3)(e)). There are therefore three
questions to be answered in any care case: first, is there harm or a likelihood of
harm; second, to what is that harm or likelihood of harm attributable; and third,
what will be best for the child?
3. It is some indication of the importance of the issues that the apparently
simple words of section 31(2) have been considered by the House of Lords and the
Supreme Court in no less than six cases: In re M (A Minor) (Care Orders:
Threshold Conditions) [1994] 2 AC 424; In re H (Minors) (Sexual Abuse:
Standard of Proof) [1996] AC 563; Lancashire County Council v B [2000] 2 AC
147; In re O (Minors) (Care: Preliminary Hearing) [2003] UKHL 18, [2004] 1
AC 523; In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS
intervening) [2008] UKHL 35, [2009] AC 11; and In re S-B (Children) (Care
Proceedings: Standard of Proof) [2009] UKSC 17, [2010] 1 AC 678. In re M was
concerned with the first limb of the first question: what is meant by “is suffering”
significant harm? We are concerned with the second limb of that question: what is
meant by “likely to suffer” significant harm?
4. A child may be protected, not only if he is actually suffering harm as a
result of a lack of reasonable parental care, but also if it is likely that he will do so
in the future. But how is a court to be satisfied that it is likely that this particular
child – the child concerned - will suffer significant harm in the future? It has twice
been held in the House of Lords that the mere possibility, however real, that
another child may have been harmed in the past by a person who is now looking
after the child with whom the court is now concerned is not sufficient. The court
has to be satisfied on the balance of probabilities that this person actually did harm
that other child: see In re H [1996] AC 563 and In re B [2009] AC 11. But in both
those cases, it was not established that the other child had been harmed at all. The
issue in this case is whether it makes a difference that another child has indeed
been harmed in the past and there is a possibility that this parent was responsible
for that harm.
5. Before turning to the facts and the arguments in this case, it should be
emphasised that in the real world the issue hardly ever comes packaged in this
simple way. There are usually many readily provable facts upon which an
authority can rely to satisfy the court that a child is likely to suffer significant harm
unless something is done to protect him. Cases in which the only thing upon which
the authority can rely is the possibility that this parent has harmed another child in
the past are very rare. As the Court of Appeal pointed out, this case has itself been
artificially constructed by the decision to treat the issue as a preliminary question
of law: [2012] EWCA Civ 380, [2012] 3 WLR 952, para 81. Who can say what
facts the court might have found relevant had the history been fully investigated in
the usual way?
 Page 3 The history
6. There are three children concerned in this case: HJ, a girl born on 20 June
2005, so now aged seven years and seven months; TJ, a boy born on 17 August
2006, so now aged six years and five months; and IJ, a girl born on 19 July 2009,
so now aged three years and six months. The two eldest, HJ and TJ are the children
of DJ, the second respondent, and his former partner, SC. They have been looked
after by their father for the whole of their lives, having remained in his care when
their mother left in 2008.
7. IJ is the daughter of JJ, the first respondent, with whom DJ formed a
relationship in 2008. It was originally thought that DJ was the father of IJ, but
DNA testing established that her father is SW, with whom JJ had earlier had a
relationship. IJ has been part of the family unit with DJ, HJ and TJ for the whole of
her life. Her mother, JJ, also formed part of that family unit for 20 months after IJ
was born. Then in March 2011, the local authority formed a child protection plan
which required her to move out of the family home, which she did. The local
authority issued care proceedings in respect of all three children in April 2011. DJ
and JJ married in June 2011 and have since had a child together, RJ, who was born
on 1 December 2011.
8. The local authority quite properly took steps to protect the three older
children after being made aware by another local authority of the findings of Judge
Masterman in earlier care proceedings relating to JJ’s second child, S, who was
born on 13 August 2005. Those proceedings were brought because of the death of
her first-born child, T-L, when T-L was only three weeks old. T-L was born on 9
March 2004 and discharged from hospital two days later. When T-L died on 29
March 2004, she was found to have multiple fractures to her ribs, caused on at
least two occasions, bruising to her left jaw, right side of her face, left shoulder and
left inner elbow, all caused non-accidentally, and serious and untreated nappy rash.
She had died as a result of asphyxia caused either by a deliberate act or by SW
taking her to bed with him and JJ leaving her in SW’s care. Both were held to have
colluded to hide the truth. In the circumstances, the judge found that “singling out
a likely perpetrator does not help this couple because it must be debateable as to
which is worse, to inflict this injury or to protect the person responsible”.
9. Following Judge Masterman’s judgment of 24 May 2006, JJ and SW
withdrew from contact with S and eventually consented to his being adopted
outside the family. They remained in a relationship until August 2007, when SW
committed an assault upon JJ to which he eventually pleaded guilty at Cardiff
Crown Court in June 2008. This was by no means the first occasion known to the
local authority upon which SW had been violent towards JJ.
 Page 4 10. The current care proceedings were transferred to the High Court in
September 2011, for determination as a preliminary issue whether the local
authority could rely upon Judge Masterman’s findings to cross the threshold in
section 31(2) of the Children Act 1989. By the time that this issue came to be tried
by Judge Hallam in November 2011, the local authority had conceded that “the
only matter that could meet the threshold criteria, at the relevant time, are the
findings . . . as to the physical injuries sustained by T-L. They do not seek to bring
failure to protect into the equation”. Hence the issue Judge Hallam had to
determine was “whether JJ’s inclusion in a pool of perpetrators in earlier
proceedings involving a different child and a different relationship can form the
basis of the threshold in relation to a subsequent child in later proceedings”.
11. After examining the earlier authorities, Judge Hallam concluded that “the
likelihood of significant harm . . . can only be proved by reference to past facts
which are proved on the balance of probabilities”. The only facts available to the
local authority had not been proved to that standard. Hence the threshold was not
met and the proceedings were dismissed. Following this judgment, JJ returned to
the family home, where she has remained ever since. No proceedings have been
taken in respect of RJ, who was born shortly after the judgment.
12. Judge Hallam did remark that she was “aware that the present law does
cause consternation for local authorities, professionals involved in the protection
of children and academic commentators. However, it is quite apparent that the
higher courts have considered those concerns and taken them into account in
reaching their decisions”. The local authority appealed to the Court of Appeal,
which reached the same conclusion in April 2012. However, the Court of Appeal
took the unusual step of itself granting the local authority permission to appeal to
this court. Giving the leading judgment, McFarlane LJ commented that
“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” (para 81).
13. While I would not criticise the local authority for agreeing to isolate the
issue in this way, that comment does underline the unreality of the question with
which this court, in common with Judge Hallam and the Court of Appeal, has been
presented. The unreality is further illustrated by the way in which Mr Stephen
Cobb QC, on behalf of the appellant local authority, has framed the issue as a
choice between two extremes:
“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 or her care, is that ‘finding’ a
 Page 5 ‘finding of fact’ that may be relied upon in subsequent proceedings
relating to only 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 or she is part
suffering significant harm or is it a ‘finding’ that must be totally
ignored in the subsequent proceedings?”
As will be seen, this is not the only way of framing the issue.
The authorities
14. The leading authorities are well-known and have been reviewed many
times, most recently by this court in In re S-B [2010] 1 AC 678. However, as Mr
Cobb correctly observes, they were not reviewed with this precise issue in mind
and it is therefore necessary to consider them briefly once more.
15. The starting point is the decision in In re H [1996] AC 563. The
proceedings concerned three young girls whose elder sister alleged that she had
been sexually abused by their mother’s partner, her step-father and the father of the
two youngest girls, from the age of seven or eight. The judge did not find the
allegations proved but held that there was a real possibility that they were true. As
this was the only basis upon which it was suggested that it was likely that the other
children would suffer harm in the future, the case was dismissed. The decision of
the House of Lords is authority for three important propositions: first, that the
standard of proof of such allegations is the simple balance of probabilities; second,
that “likely” in section 31(2) does not mean “more likely than not”; rather, it
means likely “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” (per Lord Nicholls of Birkenhead at p 585F); third, however, “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” (p 590A);
unresolved judicial doubts and suspicions “can no more form the basis of a
conclusion that the second [likelihood of harm] threshold condition in section
31(2)(a) has been established than they can form the basis of a conclusion that the
first [present harm] has been established” (p 589E).
16. The third proposition was held only by a majority of three to two but has
been reaffirmed in two later decisions at this level. In In re B [2009] AC 11, the
essential facts were very similar to those in In re H. Care proceedings were
brought in respect of three children, because the oldest of the three, a 16-year-old
girl, alleged that their mother’s husband, her step-father and the father of the two
younger children, had sexually abused her and physically abused both her and her
 Page 6 elder brother. The judge could not decide that it was more likely than not that the
girl was telling the truth, but nor could he decide that it was more likely than not
that the husband was telling the truth. Hence those allegations could not form the
basis of a conclusion that the children were likely to suffer harm in the future. On
appeal, the children’s guardian, with the support of the local authority, invited the
House of Lords to over-turn the decision in In re H in favour of a test that there
was a “real possibility” that certain events had happened. The House unanimously
and unhesitatingly declined that invitation (per Baroness Hale of Richmond at
paras 53-54). The “thoroughly convincing” reasons given by Lord Nicholls were
summarised thus (para 54):
“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 [for the
children] accepts that it must be proved on the balance of
probabilities that the 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. Furthermore the Act
draws a clear distinction between the threshold to be crossed before
the court may make a final care or supervision order and the
threshold for making preliminary and interim orders. 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”’.
17. The House also reaffirmed and clarified that the standard of proof was the
simple balance of probabilities. No more severe standard was to be applied
because of the seriousness of the allegations. The inherent probabilities were only
part of deciding what was more likely than not to have happened. As Lord
Hoffmann pointed out (at para 15), assaulting children is a serious matter, but if it
is clear that the child has indeed been assaulted, it makes no sense to say that
neither of the possible perpetrators is likely to have done it. The fact is that one of
them did and the task is to decide whether it is more probable that one rather than
the other was responsible.
 Page 7 18. In neither In re H nor In re B had the question of identifying a perpetrator
arisen. The “real possibility” under discussion was whether or not the alleged
abuse had taken place at all. But the question did arise in In re S-B [2010] 1 AC
678, a judgment of this court to which seven Justices subscribed. The case
concerned two children. The older child, J, was found to have sustained nonaccidental bruising to his face and arms at the age of only four weeks. The judge
found it likely that only one parent had been responsible and there was no question
of the other having failed to protect the child. She concluded that neither parent
could be ruled out as the perpetrator of the injuries, although she later indicated a
60% likelihood that it was the father. The parents had separated while the
proceedings were going on and their younger child, W, was born before the
hearing. He had never come to any harm, having been removed from his mother at
birth. Nevertheless, the judge concluded that, because there was a real possibility
that the mother had injured J, there was also a real possibility that she would injure
W in future.
19. The principal point in the case was the standard of proof to be applied in
identifying the perpetrator of injuries which are found to have been non-accidental.
The court reaffirmed that this was the simple balance of probabilities, and pointed
to the very real advantages of making such a finding where it was possible to do so
(paras 36 to 38). The judge had applied too high a standard and it was not possible
to treat her later 60% indication as a positive finding that the father was the
perpetrator. Hence the case was sent back to be re-heard.
20. In relation to the younger child, W, there was another reason to remit the
case (para 49):
‘The judge found the threshold crossed in relation to [W] on the
basis that there was a real possibility that the mother had injured [J].
That, as already explained, is not a permissible approach to a finding
of likelihood of future harm. It was established in In re H [1996] AC
563 and confirmed in In re O [2004] 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 [W] on a different
basis but she did not do so.’
Strictly speaking, that paragraph may be obiter, as the case was to be remitted for
re-hearing in any event. However, it did constitute an independent reason for
remitting the case in relation to W, a reason which would have applied to him
even if the judge had applied the correct standard of proof in relation to the
 Page 8 perpetrator of J’s injuries but been unable to decide between the parents. It is that
paragraph which has apparently caused “consternation” in some quarters and
which is under challenge in these proceedings.
21. One reason for that “consternation” may be that paragraph 49 is
inconsistent with some observations of Wall J in In re B (Minors) (Care
Proceedings: Practice) [1999] 1 WLR 238. The case concerned two-year-old
twins, CB and JB, one of whom, CB, had suffered shaking injuries on two
occasions. The judge found that the mother had shaken the child on the second of
those occasions, so (the father being off the scene) there was a proper factual basis
for concluding that the threshold criteria were met in relation to both children.
Nevertheless, the judge went on to observe that they would have been met even if
he had been unable to decide who was responsible for the shaking. His basis for
doing so appeared to be that, as “likely” means a “real possibility”, “there must
therefore, in my judgment, be a possibility which cannot sensibly be ignored that if
JB were left in the care of his parents – or either of them – he too will suffer
significant harm” (p 248E). With the greatest of respect to the undoubted wisdom
and experience of the judge, that reasoning fails to distinguish between the degree
of likelihood required by the word “likely” and the factual findings required to
satisfy the court of that likelihood, a distinction which was clearly drawn by the
House of Lords in the later case of In re B [2009] AC 11.
22. It is also suggested that para 49 of In re S-B [2010] 1 AC 678 is inconsistent
with the two other cases which, together with In re H [1996] AC 563, make up a
“trilogy” of House of Lords cases in which the leading opinion was given by Lord
Nicholls. The second in the trilogy is Lancashire County Council v B [2000] 2 AC
147. The House of Lords was not concerned with the basis for predicting the
likelihood of future harm for the purpose of section 31(2)(a) but with the proper
interpretation of the second part of the threshold test, the “attributability” criterion
in section 31(2)(b). A seven-month-old baby had suffered injury from having been
violently shaken on at least two occasions. Care proceedings were brought in
relation to that child and also in relation to the child of a child-minder who looked
after the injured child during working hours. The judge found that the injuries had
been caused either by the mother, or by the father, or by the child-minder, but he
could not identify the perpetrator. He concluded that the threshold criteria were not
met in respect of either child, but the Court of Appeal and the House of Lords held
that they were met in respect of the injured child. However, the Court of Appeal
held that they were not met in respect of the child-minder’s child and permission to
appeal that decision out of time to the House of Lords was refused.
23. The House held that it was not necessary, for the purpose of section
31(2)(b), to make a finding that an individual parent whose parental responsibility
would be curtailed by the order was responsible for the harm suffered. It was
enough that the harm was attributable to the care given to the child not being what
 Page 9 it ought to have been. What was meant by the “care given to the child”? Did it
refer only to the care given by the parents, or by other primary carers, or by anyone
who was looking after the child? The House held that it referred principally to the
child’s primary carers, but where, as here, the care of the child was shared, it could
also embrace those who shared that care (at p 166B-D). This might mean that the
attributability condition was satisfied when there was no more than a possibility
that the parents were responsible (at p 166F).
24. Hence, it is now argued, the same should apply to the likelihood of harm
condition in section 31(2)(a). If a parent can fall foul of the attributability criterion
when there is no more than a possibility that she has harmed the child, why should
she not fall foul of the likelihood criterion in the same circumstances?
25. However, the Lancashire case was not about the likelihood criterion. There
is nothing in the House of Lords’ decision in the case to cast doubt upon the
decision of the Court of Appeal (albeit reached with no enthusiasm) that the
likelihood criterion in section 31(2)(a) was not met in relation to the childminder’s child. That child had not suffered any harm at all. The risk of future harm
could be established only on the basis of proven facts, not mere suspicion. It was
clear that the parents of the injured child would play no part in the child’s care in
the future. It had not been established on the balance of probabilities that the childminder was the perpetrator of the injuries (per Robert Walker LJ at p155F-G).
26. The decision of the Court of Appeal in the Lancashire case is, of course, in
line with para 49 of the judgment of this court in In re S-B [2010] 1 AC 678. In In
re F (Interim Care Order) [2011] EWCA Civ 258, [2011] 2 FLR 856, the Court of
Appeal held, on similar facts, that it was bound to dismiss the local authority’s
appeal. The child concerned was a baby, C, born in June 2010, who had come to
no harm: indeed the hearing took place only three days after he was born.
Proceedings were brought because, in 2004, his father had been party to care
proceedings involving his child, J, by a different woman. At the age of six months,
J had suffered two fractures to the right leg on separate occasions. The judge found
that either the mother or the father was responsible and in relation to the second
fracture the other parent had failed to protect J. But (as in this case) the local
authority in the current proceedings relied only on the real possibility that the
father was the perpetrator of J’s injuries and not upon any failure to protect.
27. In refusing the local authority permission to appeal to the Supreme Court,
Wilson LJ referred both to the Lancashire case and to para 49 of In re S-B. He
observed that “the strict status of that passage as obiter carries very little
significance in circumstances in which it is all of a piece with a number of earlier,
yet also recent, decisions of the House of Lords” (para 14). After referring to the
“consternation” caused by para 49, he continued, “No doubt there are hard and
 Page 10 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”
(para 15).
28. The application for permission to appeal was not renewed before this court,
perhaps because the local authority had since launched new proceedings alleging
that the threshold was crossed on an entirely different basis (current drug-taking by
the parents). Should the threshold be crossed on that basis, the question might
arise as to the relevance of the inclusion of the father in a (small) pool of possible
perpetrators of the injuries to J at the so-called “welfare” stage of the inquiry,
where the court is considering what order if any, will best promote the welfare of
the child. Wilson LJ raised the question, which he clearly regarded as causing
difficulties for a trial judge, but it was unnecessary to answer it in the
circumstances.
29. The third case in the “trilogy”, In re O [2004] 1 AC 523, was concerned
with the welfare stage of the inquiry. There were two separate appeals. In one case,
a child had suffered serious injuries; the father admitted responsibility for one of
them; but the judge held that neither parent could be excluded as a possible
perpetrator of the others. The Court of Appeal held that the case should proceed on
the basis that there was no risk, either to the injured child or to a younger child,
from the mother. In the other case, a child had died as a result of serious injuries
which the judge found had been inflicted by the mother’s partner. A differently
constituted Court of Appeal found that there was insufficient evidence that the
mother’s partner was the sole perpetrator, so the judge at the welfare hearing
would not be able to disregard the risk to the surviving child presented by the
mother.
30. Lord Nicholls re-iterated the principles already established in In re H and
Lancashire County Council v B: that in considering the likelihood of future harm
for the purpose of section 31(2)(a), the court had to act only on the basis of proven
facts (para 17); that “likely” meant a real possibility; and that the care given to the
child for the purpose of section 31(2)(b) included the care given by any of the
child’s carers so that the threshold could be crossed even though the identity of the
perpetrator was not known (para 19). It was in that connection, and not in
connection with the “likelihood” criterion, that Lord Nicholls (para 20) referred
with apparent approval to what Wall J had said in In re B [1999] 1 WLR 238, 248.
31. He went on to hold that, once it had been proved, to the requisite standard,
that a child had suffered harm or was likely to do so (para 26), the court could take
 Page 11 into account at the welfare stage the inclusion of the parent in a pool of possible
perpetrators of the child’s injuries. It would be “grotesque” to proceed on the basis
that the child was at risk from neither parent (para 27). The importance to be
attached to this, as to any other feature, would depend upon the circumstances of
the case (para 31).
32. On the other hand, Lord Nicholls went on to discuss, albeit obiter, whether
unproven allegations of harm could be taken into account at the welfare stage and
held that they could not (para 38). This accorded with the approach of the Court of
Appeal in In re M and R (Child Abuse: Evidence) [1996] 2 FLR 195 (para 39): it
would be extraordinary if Parliament intended that evidence insufficient to
establish harm for the purpose of section 31(2)(a) should be sufficient to establish
harm for the purpose of section 1(3)(e) (para 40).
33. Once again, therefore, it is argued that, if inclusion in a pool of possible
perpetrators can be taken into account (with whatever difficulty in assessing its
importance) both for the purposes of the attributability criterion and at the welfare
stage of the inquiry, then why can it not be taken into account for the purposes of
the likelihood criterion in section 31(2)(a)? Once again, however, there is nothing
in In re O to cast doubt upon the necessity for founding a prediction of future harm
upon a proven factual basis. Lord Nicholls went out of his way to reiterate the
necessity for this. It is also striking that, although both appeals were concerned
with a child who had not (yet) been harmed, there was no discussion of the basis
upon which the threshold had been crossed in their cases. Thus there was no
discussion of whether or not the possible perpetrators remained members of the
same household at the relevant time: clearly, if one child has suffered harm at the
hands of one of two parents who remain members of the same household, it is
possible (though not inevitable) to infer that another child in that household is also
likely to suffer harm. Furthermore, the discussion of the relevance of inclusion in
the pool at the welfare stage was all in the context of proven harm to the child
concerned.
34. Finally, reference should be made to the case of North Yorkshire County
Council v SA [2003] EWCA Civ 839, [2003] 2 FLR 849. This too was not a case
about the “likelihood” criterion. The child concerned had suffered serious nonaccidental injuries. The case was about the identification of the pool of possible
perpetrators for the purpose of the later stages of the inquiry. The court held that a
“no possibility” test, ruling out only those people who could not be perpetrators,
cast the net far too wide. The court preferred the test of including only those where
there was a “likelihood or real possibility” that they were responsible (para 26). In
doing so, Dame Elizabeth Butler-Sloss P referred to the opinion of Lord Nicholls
in In re O [2004] 1 AC 523, and expressed the view that the “real possibility” test
which he had applied at the welfare stage should also be applied at the section
31(2) part of the case (para 21). Once again, however, this was not a case about
 Page 12 predicting the likelihood of future harm. It was about identifying the pool of
possible perpetrators at the attributability and welfare stages. Its approach at that
stage was expressly approved by this court in In re S-B [2010] 1 AC 678, at para
43.
35. It is worth remembering that all of these cases, in which the judge (or the
Court of Appeal) found it impossible to identify a perpetrator, were decided before
the decision of the House of Lords in In re B [2009] AC 11. That includes the
decision of Judge Masterman in the earlier proceedings which led to this case. As
was apparent in In re B, until that case was decided, the opinion of Lord Nicholls
in In re H [1996] AC 563 had frequently been misinterpreted so as to require a
higher standard of proof where the allegations made were serious. The nostrum
had taken hold that “the more serious the allegation, the more cogent the evidence
needed to prove it”: In re B [2009] AC 11, para 64. Reference had been made to In
re H in two House of Lords cases which were concerned with two quite different
statutes: see B v Chief Constable of Avon and Somerset Constabulary [2001] 1
WLR 340 (concerning sex offender orders) and R (McCann) v Crown Court at
Manchester [2003] 1 AC 787 (concerning anti-social behaviour orders). These had
led to suggestions that in care proceedings there was a “heightened standard of
proof” and even that the difference between the criminal and civil standards was
“largely illusory”. Those suggestions were firmly rejected by the Court of Appeal
in In re U (A Child) (Department for Education and Skills intervening) [2005] Fam
134, and equally firmly by the House of Lords in In re B [2009] AC 11.
36. Hence, in In re S-B [2010] 1 AC 678, this court re-iterated that the simple
balance of probabilities was the test for the identification of a perpetrator. There
were cases where the judge might find this difficult, and he was under no
obligation to do so if he could not. But there were particular benefits in doing so if
he could. It would promote clarity in future planning for the child (para 36). It
would also enable the professionals to work with the family on the basis of the
judge’s findings (para 37). And it would help the child in due course to understand
and come to terms with what had happened and why he might have been removed
from his family (para 38).
37. It may well be that a misunderstanding of the standard of proof has been
responsible for some of the difficulties. Trial judges have felt themselves unable to
decide which parent was responsible for harming a child. This did not matter too
much at the attributability and welfare stages, although it was bound to make the
task of deciding what would be best for the child much more difficult, especially if
the parents had separated after the harm was done. It clearly did matter at the stage
of deciding whether another child was likely to suffer significant harm, but trial
judges will no doubt have taken comfort from the dicta of Wall J in In re B [1999]
1 WLR 238 until the basis for predicting likelihood came before the House once
more in In re B [2009] AC 11 and In re S-B [2010] 1 AC 678.
 Page 13 Criminal and Civil law
38. It is also argued that the approach established in the care cases, culminating
in In re S-B, is out of step with the modern approach in criminal and civil law
where it is clear that harm has been suffered but not clear who has caused it.
Section 5 of the Domestic Violence, Crime and Victims Act 2004 (as amended in
2012) creates the offence of causing or allowing a child (or vulnerable adult) to die
or suffer serious physical harm. If a child dies or suffers serious physical harm as a
result of the unlawful act of a member of the child’s household who has frequent
contact with the child, and there was at the time a significant risk of serious
physical harm being caused to the child by such a person, then such a person is
guilty of an offence if either (i) he or she was the person whose act caused the
death or serious physical harm or (ii) he or she was or ought to have been aware of
the significant risk, failed to take such steps as he or she could reasonably have
been expected to take to protect the child from the risk, and the act occurred in
circumstances of the kind that he or she foresaw or ought to have foreseen. The
prosecution does not have to prove whether it is (i) or (ii), thus getting round the
well-known problem that if a child was seriously injured or died at the hands of
one of his parents, but it could not be proved which, both had to be acquitted: see,
for example, R v Lane (1986) 82 Cr App R 5.
39. It will be immediately apparent that child care law already protects the child
who is injured in such circumstances. He has suffered significant harm attributable
to the care given to him not being what it would be reasonable to expect a parent to
give to him. As the Lancashire case [2002] 2 AC 147 made clear, it is not
necessary to identify the perpetrator of the harm in order to cross the threshold.
Furthermore, child care law will protect another child who is a member of the
same household where the other child was injured.
40. The criminal law is only concerned with punishing those who bear some
responsibility, either directly or through a failure to protect from predictable harm,
for a death or serious injury which has actually taken place. It does place a duty
upon those looking after a child to protect him from the foreseeable risk of serious
harm caused by others in the household. But child care law already does the same.
A parent who fails to protect her child not only stands to lose that child but also
stands to have that failure taken into account in predicting risks to other children.
The criminal law is not addressing the question with which we are concerned,
which is how the likelihood of future harm can reliably be predicted.
41. Developments in the civil law are even less in point. In Fairchild v
Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1 AC 32, the House of
Lords created an exception to the general principle that a person who has suffered
harm as a result of a breach of duty can only recover damages against a person
 Page 14 who can be shown to have caused or contributed to that harm. That exception
applies only where the claimant has contracted mesothelioma, has been exposed to
asbestos from more than one source, and it cannot be shown which source was
responsible for the disease. Any defendant who has wrongfully exposed the
claimant to asbestos is liable. But in Sienkiewicz v Greif (UK) Ltd [2011] UKSC
10, [2011] 2 AC 229, the Supreme Court made it clear that this is a special rule,
created only because of the special difficulty of proving causation in mesothelioma
cases. It can scarcely be described as the herald of a brave new world in which
people may be held liable for harm whether or not they have caused it.
42. In any event, like the criminal law, the civil law is looking to the past, not
the future. It seeks to compensate for harm already done, not to predict whether
harm is likely in the future.
Discussion
43. As this review has shown, there is no inconsistency between para 49 of In
re S-B [2010] 1 AC 678 and any of the earlier House of Lords authorities. On the
contrary, although it addresses a different factual situation from those addressed in
In re H [1996] AC 563 and In re B [2009] AC 11, it is entirely consistent with
them in principle. Nor is it inconsistent with developments in the criminal and civil
law. In my view, it represents a correct statement of the law, and should be
followed in preference to the obiter dicta of Wall J in Re B [1999] 1 WLR 238,
248.
44. Time and again, the cases have stressed that the threshold conditions are
there to protect both the child and his family from unwarranted interference by the
state. There must be a clearly established objective basis for such interference.
Without it, there would be no “pressing social need” for the state to interfere in the
family life enjoyed by the child and his parents which is protected by article 8 of
the ECHR. Reasonable suspicion is a sufficient basis for the authorities to
investigate and even to take interim protective measures, but it cannot be a
sufficient basis for the long term intervention, frequently involving permanent
placement outside the family, which is entailed in a care order.
45. That view is supported by the legislative history. The single threshold
contained in the Children Act 1989 replaced the many separate criteria for taking
or keeping children away from their families which were contained in the previous
law. Most care proceedings were brought in juvenile courts under section 1 of the
Children and Young Persons Act 1969. This contained a list of specific grounds
for making care orders, two of which catered for the likelihood of future harm:
where it was probable that this child would suffer harm in future, either because
 Page 15 another child in the same household had already been harmed, or because a person
who had been convicted of harming another child had joined the household.
During the 1970s, however, local authorities increasingly resorted to taking
children into care by making them wards of court: the High Court (along with the
divorce courts) had power, “in exceptional circumstances making it impracticable
or undesirable” for the child to be cared for by his parents or any other individual,
to commit a ward to the care of a local authority: section 7(2) of the Family Law
Reform Act 1969.
46. The Review of Child Care Law: Report to Ministers of an
Interdepartmental Working Party (1985) (DHSS), which led to the 1989 Act,
rejected a broad welfare test, because it would not offer the degree of statutory
protection against unwarranted interference which the preceding House of
Commons Select Committee Report on Children in Care had considered essential
(para 15.10). The Review also rejected the “exceptional circumstances” criterion,
because it would add little to the broad welfare criterion and “leave too much to
subjective interpretation” (para 15.11). Instead, it proposed a criterion of actual or
likely harm (paras 15.12 to 15.25). Much of the discussion focussed on the
definition of harm – the Review contemplated a substantial deficit in the standard
of health, development or well-being which could reasonably be expected of the
particular child, whereas the Act speaks of “significant” harm. The Review did not
discuss the meaning of “likely” or how such a likelihood is to be predicted. It is
clear, however, that the threshold was designed to be more precise than the
previous wardship criterion and to focus upon what was seen as the key objective
justification for state interference – that the child was suffering or likely to suffer
harm.
47. The threshold comes in two limbs and each has two distinct components. In
the first limb, the court must be satisfied (a) that the child is suffering significant
harm, and (b) that that harm is attributable to the care given to him not being what
it would be reasonable to expect a parent to give him. In the second limb, the court
must be satisfied (a) that the child is likely to suffer significant harm, and (b) that
that likelihood is attributable to the care likely to be given to him if the order is not
made not being what it would be reasonable to expect a parent to give to him. It
would, as Lord Nicholls pointed out in In re H [1996] AC 563, 591, be odd if the
first limb had to be proved to the satisfaction of the court but the basis for
prediction in the second limb did not.
48. Since In re H, a clear distinction has been drawn between the degree of
likelihood required by the second limb and the basis upon which the court can be
satisfied of that likelihood. It was held in In re H that “likely” did not mean “more
likely than not”, but a “real possibility”, the degree of possibility required
depending upon the seriousness of the harm which was feared. The House might
have held that “likely” meant “probable”, but it adopted a more flexible test. It is
 Page 16 worth noting that Lord Nicholls did not think that adopting this more flexible test
would significantly prejudice the parents’ interests: “so far as the parents are
concerned, there is no particular magic in a threshold test based on a probability of
significant harm as distinct from a real possibility” (p 585D).
49. Having adopted a flexible test of likelihood, it became all the more
important to hold that an objective factual basis was required from which to draw
the inference that future harm was likely. This was controversial in In re H [1996]
but has been firmly established ever since and for very good reasons. Care courts
are often told that the best predictor of the future is the past. But prediction is only
possible where the past facts are proved. A real possibility that something has
happened in the past is not enough to predict that it will happen in the future. It
may be the fact that a judge has found that there is a real possibility that something
has happened. But that is not sufficient for this purpose. A finding of a real
possibility that a child has suffered harm does not establish that he has. A finding
of a real possibility that the harm which a child has suffered is “non-accidental”
does not establish that it was. A finding of a real possibility that this parent harmed
a child does not establish that she did. Only a finding that he has, it was, or she did,
as the case may be, can be sufficient to found a prediction that because it has
happened in the past the same is likely to happen in the future. Care courts need to
hear this message loud and clear.
50. In In re S-B [2010] 1 AC 678, the “real possibility” that the mother had
harmed J was the only basis upon which the judge concluded that it was likely that
W would suffer harm in the future. There was nothing else. J had suffered bruises
and all bruising to a tiny baby must be taken seriously. But they had probably been
caused on one occasion by one parent. It could not be suggested that the other
parent had failed to protect him. What was impermissible, as stated in para 49, was
to make this, and this alone, the basis for predicting that the mother was likely to
harm W in the future. It may well be that when the case was re-heard, facts
emerged from which it was possible to make such a prediction.
51. Cases such as In re S-B are vanishingly rare. As McFarlane LJ pointed out
in the Court of Appeal [2012] 3 WLR 952, para 109, the Lancashire case [2000] 2
AC 147, in respect of the child-minder, was “truly a one-point case. There were no
other adverse findings made against the childminder” (he says “other” but he must
mean no adverse findings) (para 108). Likewise, In re S-B “was [a case] of a oneoff (‘whodunit’) injury, there was no question of failure to protect and no finding
of collusion” (para 111). Even in In re F [2011] 2 FLR 856, there were no adverse
findings against the father (para 112). Most care cases are not “one-off whodunit”
cases. They come with a multitude of facts.
 Page 17 52. It is, of course, a fact that a previous child has been injured or even killed
while in the same household as this parent. No-one has ever suggested that that
fact should be ignored. Such a fact normally comes associated with innumerable
other facts which may be relevant to the prediction of future harm to another child.
How many injuries were there? When and how were they caused? On how many
occasions were they inflicted? How obvious will they have been? Was the child in
pain or unable to use his limbs? Would any ordinary parent have noticed this? Was
there a delay in seeking medical attention? Was there concealment from or active
deception of the authorities? What do those facts tell us about the child care
capacities of the parent with whom we are concerned?
53. Then, of course, those facts must be set alongside other facts. What were
the household circumstances at the time? Did drink and/or drugs feature? Was
there violence between the adults? How have things changed since? Has this
parent left the old relationship? Has she entered a new one? Is it different? What
does this combination of facts tell us about the likelihood of harm to any of the
individual children with whom the court is now concerned? Does what happened
several years ago to a tiny baby in very different circumstances enable us to predict
the likelihood of significant harm to much older children in a completely new
household?
54. Hence I agree entirely with McFarlane LJ when he said that In re S-B is not
authority for the proposition that “if you cannot identify the past perpetrator, you
cannot establish future likelihood” (para 111). There may, or may not, be a
multitude of established facts from which such a likelihood can be established.
There is no substitute for a careful, individualised assessment of where those facts
take one. But 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.
Disposal
55. It follows that I would dismiss the local authority’s appeal on the single
issue which has been identified for the decision of this court and the courts below.
But what should be the consequence of that?
56. 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
 Page 18 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.
57. In those circumstances it would be most unfair to the whole family, not only
to this mother, but also to her husband and all the children, for these proceedings
to continue further. If the local authority wish to make a case that any of these
children is likely to suffer significant harm in the future, they will have to bring
new proceedings. The current application must remain dismissed.
LORD WILSON
58. I agree that the appeal should be dismissed. I will set out the reasons for
my agreement in all save the final three of the following paragraphs of this
judgment. Then I will identify an issue between myself and most other members of
the court which, although important, does not affect the disposal of the appeal.
59. Where a child has suffered significant harm but the court is unable to
identify its perpetrator or perpetrators, it will consign all those whose perpetration
of it remains a real possibility to a pool of possible perpetrators. One of the most
vexed issues in the public law relating to children surrounds the legal
consequences of the consignment of a person, let us say X, to a pool of possible
perpetrators. To be specific: at what stage or stages, and in what way, does a court
appraise the risk posed to a child by X when his or her perpetration of significant
harm to that child or to another child has been adjudged to be a real possibility yet
no more than a real possibility?
60. It is agreed that, when the threshold to the making of a care or supervision
order set by section 31(2) of the Children Act 1989 (“the Act”) has been crossed
and the court proceeds to consider, under section 1(1) of the Act, whether it would
serve the welfare of the child to make such an order, the consignment of a
proposed carer to a pool of possible perpetrators of harm to that child or to another
child must, with whatever degree of difficulty, be weighed in the balance: for it is
relevant to the harm which the child is at risk of suffering (section 1(3)(e)) and to
the capacity of X to meet his or her needs (section 1(3)(f)). So the court will, in
particular:
 Page 19 (a) study the circumstances in which X’s possible perpetration of that
harm took place;
(b) compare them with the circumstances in which, if permitted, X
would provide care for the subject child;
(c) weigh the significance of any changes in X and in the circumstances
surrounding him or her since the time when he or she may have
perpetrated the harm;
(d) have regard to the age and other characteristics of the subject child;
and
(e) assess the adequacy of the protective measures which are in place, or
could be put in place, by way of mitigation of such risk as X may pose to
the subject child.
61. It seems that occasionally, probably in order to aid the difficult task which
in the future he or another judge may face of weighing, at the welfare stage, the
significance of his consignment of X, along with another person (let us say Y), to
a pool of possible perpetrators, a judge has proceeded to suggest that the real
possibility that Y perpetrated the injuries is stronger than the real possibility that X
did so. In a case in the Court of Appeal, namely In re T (Care Proceedings:
Appeal) [2009] EWCA Civ 1208, [2010] 1 FLR 1325, I suggested, at para 62, that
a judge who had made such a suggestion might have been trying to dance on the
head of a pin. Three weeks later, in In re S-B (Children) (Care Proceedings:
Standard of Proof) [2009] UKSC 17, [2010] 1 AC 678, para 44, the Supreme
Court advised judges to be cautious about making such a suggestion. In my view
judges would at least have to ask themselves (for, if they did not do so, an
appellate court, as in In re T, might be invited to ask itself) whether their reasons
for considering that the real possibility of perpetration was stronger in relation to Y
than in relation to X were not, instead, reasons for concluding that the former had
probably perpetrated the injuries and that therefore there should be no pool at all.
62. But is the consignment of a person to a pool of possible perpetrators also
relevant to the issue whether the threshold set by section 31(2) of the Act is
crossed?
63. The threshold has two parts: (a) that the child is suffering, or is likely to
suffer, significant harm; and (b) that the harm or likelihood of harm is attributable
either to the care given, or likely to be given, to him not being what it would be
 Page 20 reasonable to expect a parent to give to him or to his being beyond parental
control.
64. The phrase “not being what it would be reasonable to expect a parent to
give” in section 31(2)(b) covers every case in which a court concludes that the care
provided by one or other of the parents or by anyone else who shared the child’s
care fell short of a reasonable standard, even if, provided that he must have been
within those categories, the person whose care thus fell short cannot be identified:
Lancashire County Council v B [2000] 2 AC 147. It is therefore only in few cases
that subsection 2 (b), known as the attributability condition, presents any
significant extra hurdle to the crossing of the threshold.
65. We may thus put the attributability condition to one side and ask, more
narrowly, whether the consignment of a person to a pool of possible perpetrators is
also relevant to whether the child is suffering, or is likely to suffer, significant
harm. Indeed we may further narrow the question by also putting to one side the
child who is suffering significant harm. For in such a case, and subject to the
attributability condition, the threshold is crossed irrespective of whether the
perpetrator of the harm to the child can be identified.
66. So this appeal surrounds the unharmed child, whom a local authority alleges
to be likely to suffer significant harm at the hands of a person because she (or he)
has been consigned to a pool of possible perpetrators of harm to another child.
67. The Court of Appeal directed substantial criticism at the appellant local
authority, Stockton-on-Tees Borough Council, for having presented this
application for care orders to the judge on the basis that the only fact upon which it
relied for the crossing of the threshold was that the first respondent, JJ, had been
consigned to a pool of possible perpetrators of injuries to her deceased child, T-L.
In making this confined presentation Stockton took a deliberate decision not to rely
on the findings of Judge Masterman that, had she not been the perpetrator of the
injuries, JJ had failed to protect T-L, had kept her away from health professionals
in order to avoid detection of her injuries and had colluded with T-L’s father in
attempting to prevent the court from identifying their perpetrator.
68. The most powerful of the criticisms made in the Court of Appeal emanated
from Lord Judge CJ. He suggested that if, on Stockton’s confined presentation, the
ultimate verdict of the courts was to be that the threshold had not been crossed but
if, on a wider presentation, the threshold would have been crossed and the court
would have proceeded to make care orders, Stockton’s decision might turn out
irresponsibly to have left the children at risk.
 Page 21 69. The Lord Chief Justice made a powerful point. It is no more than partly
undermined by a provisional conclusion, derived from the limited material before
the court, that it seems improbable that the welfare of the children would be served
by their being taken into care or even by obliging JJ’s husband, namely DJ, to
separate from her as a condition of the court’s declining to remove some or all of
them from his care. Nevertheless I decline to join in the condemnation of Stockton.
The relevance or otherwise to the threshold of a carer’s presence in a pool of
perpetrators is a question which has rightly concerned local authorities and other
child care professionals for years: see In re F (Interim Care Order) [2011] EWCA
Civ 258, [2011] 2 FLR 856, para 15. Local authorities need to understand the
parameters of their ability to obtain care and supervision orders. The only decision
of the Supreme Court directly to have addressed the question, namely In re S-B
(Children) (Care Proceedings: Standard of Proof), cited above, was primarily
reached on another basis, which related to the standard of proof. The present
appeal at last confers upon this court the opportunity, indeed imposes upon it the
obligation, to decide the question, in effect once and for all. For Stockton’s severe
pruning of its case has ensured that the decision cannot branch out in another
direction.
70. Nevertheless in my view leading counsel for JJ and DJ are right to submit
that it is a “vanishing rarity” for a past finding of a person’s (say a mother’s)
possible perpetration of injuries to a child not to be accompanied by findings that,
in any event, she had culpably ill-treated or neglected the child. The most usual
such findings, which, as I have indicated, were all made by Judge Masterman in
relation to JJ, are that, even assuming in her favour that she was not the perpetrator
of the injuries, she had culpably failed to protect the child from them, had failed to
seek medical attention for them and, by lying, had sought to disable the court from
identifying her then partner as their perpetrator. Findings of such a character can
be profoundly serious because they appear to betoken a mother’s willingness to
sacrifice the elementary interests of a child to be safe and free from injury on the
altar of some adult relationship. On reflection, I am not at all sure that such
findings become irrelevant just because the mother is now living, as JJ is now
living, with another partner who does not represent a risk to a subject child and
from whom there is therefore no specific need for the child to be protected: for no
doubt the child will continue to need protection from a variety of situations and
from persons other than the new partner. More widely, such findings raise grave
concerns about that mother’s entire capacity for responsible care; and, if
marshalled by a local authority as the factual foundation for the crossing of the
threshold, they would need most carefully to be weighed against such evidence as
indicated an improvement in her capacity for responsible care as at the relevant
date.
71. Stockton does not dispute that a prediction of likelihood of significant harm
must be founded on proven facts. There is, of course, no express statement of such
 Page 22 a requirement in the Act itself. It arises as a result of judicial interpretation at the
highest level, namely in In re H (Minors) (Sexual Abuse: Standard of Proof))
[1996] AC 563; and the interpretation has been specifically reaffirmed in In re B
(Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008]
UKHL 35, [2009] AC 11. I respectfully disagree with the view, which Lord Reed
at para 93 describes as attractive, that the interpretation is over-complicated. At all
events Stockton argues, instead, that a person’s consignment to a pool of possible
perpetrators of harm to a child is itself a finding of fact which can found a
prediction that a second child is likely to suffer significant harm; or, even if not,
that, when added to a finding (being on any view a finding of fact) that the first
child did suffer harm, it provides the requisite foundation upon which it would be
open to the court to predict the likelihood.
72. Is a bald statement that there is a real possibility that X caused the injuries a
statement of fact? I personally do not find the answer easy. But there is no need for
an answer. For the consignment of two (or more) persons to a pool of possible
perpetrators goes further than that: it is a statement not only that there is a real
possibility that X caused the injuries and alternatively that Y caused them but also
that no one else caused them, i.e that one or other of them did cause them. I am
clear that such a conclusion does amount to a finding of fact. But is it a fact
relevant to the threshold? Where X and Y remain together as a unit and are putting
themselves forward as carers for an unharmed child, it is certainly relevant and
might well suffice in enabling the threshold to be crossed in relation to that child;
for in those circumstances the fact is that somebody in the child’s proposed home
did perpetrate injuries to another child. But the difficulty arises in the case,
reflective of the facts in this appeal, in which X and Y no longer remain together
as a unit and in which only one of them, X, is put forward as a carer. The
consignment of X to a pool is not a finding that X did cause the injuries. So the
question arises whether in that situation such a finding of fact is relevant.
73. Here is the crux of this appeal. Stockton’s case is deeply illogical.
74. Stockton argues that the children are at risk of suffering significant harm
because of the presence in their home of JJ. So the requisite foundational facts
must relate to JJ. To point to no more than the fact that T-L suffered grave nonaccidental injuries is, on any view, insufficient. A second fact is needed such as
relates to JJ. Stockton seeks to make the link with her by relying on her
consignment to the pool of possible perpetrators of the injuries. But her
consignment to the pool is not a relevant fact because it falls short of ascribing
their perpetration to her. The result is that there is no relevant second fact. In both
In re H and In re B, cited above, it was clear that, if in each case the girl had
suffered harm, it had been at the hands of her step-father; in the event, however,
the court’s conclusion was no more than that there was a real possibility that she
had suffered the harm. Stockton does not challenge the principle established by
 Page 23 those cases that such a conclusion was insufficient to found a likelihood that the
step-father would cause significant harm to other children. The present appeal
presents the precisely obverse situation; there was no doubt that T-L had suffered
harm and the only issue, which in the event was unable to be resolved save in
terms of a real possibility, related to the identity of the perpetrator. There is in my
view no basis for departing from that principle in this precisely obverse, yet
analogous, situation. The harm and the person’s responsibility for it are the two
planks on which any conclusion about likelihood must rest and they must be
equally sturdy.
75. If and insofar (so Stockton proceeds to submit) as the basis of the appeal is
illogical, then so be it; for otherwise legalism would triumph over child protection.
But - in my view - logic is the blood which runs through the veins of the law:
allow it to escape and ultimately the edifice collapses. Nor is the rigid approach to
the factual foundation properly categorised as legalism. In In re H, cited above,
Lord Nicholls commented, at p 592, on the unanimous conclusion of the House
that, when it turned from looking at the past to look at the future, a likelihood of
significant harm meant only a real possibility of it. “Therein”, said Lord Nicholls,
“lies the protection for children.” He continued:
“But, as I read the Act, Parliament also decided that proof of the
relevant facts is needed if this threshold is to be surmounted. Before
the section 1 welfare test and the welfare ‘checklist’ can be applied,
the threshold has to be crossed. Therein lies the protection for
parents. They are not to be at risk of having their child taken from
them and removed into the care of the local authority on the basis
only of suspicions...”
My view remains that the need for the local authority to prove the facts which give
rise to a real possibility of significant harm in the future is a bulwark against too
ready an interference with family life on the part of the state. And, subject to the
caveat that the court received no argument on the impact of article 8 of the
European Convention on Human Rights, I incline to the view that nothing less
than a factual foundation would justify such grave interference with the rights of
the child and the parents thereunder to respect for their family life: see Olsson v
Sweden (1989) 11 EHRR 259, in which, at paras 67 and 68 (which it has cited with
approval on many subsequent occasions), the European Court of Human Rights
stressed that a child’s removal into care was justified only if it was necessary in a
democratic society in the sense that it corresponded to a pressing social need and
was based on reasons which were relevant and sufficient.
76. In a final argument which found some favour with McFarlane LJ in the
Court of Appeal, but which, with respect, I find puzzling, Stockton urges that the
 Page 24 interpretation of the alternative limb of section 31(2)(a) of the Act should be no
less flexible than the modern approach of the criminal law reflected in section 5 of
the Domestic Violence, Crime and Victims Act 2004, as amended. Its general
effect is that, where a child has died or been seriously harmed as a result of an
unlawful act, a member of his household is guilty of an offence even if the jury can
conclude no more than that either he perpetrated the act or he was or ought to have
been aware that the child was at significant risk of harm and failed to take
reasonable steps to protect him from it. In my view, however, there is no disparity
of principle in this respect between the criminal law and the proper approach to the
likelihood of significant harm in the subsection. In paras 103 to 109 of his
judgment McFarlane LJ reverted to the findings of Judge Masterman that, if she
did not perpetrate the injuries to T-L, JJ was at any rate culpable in the respects
summarised at para 67 above; and the Lord Justice suggested that the effect of the
dismissal of the appeal would be that such findings of culpability “must be
ignored” in evaluating the likelihood of significant harm to another child. But they
are to be ignored only because, in setting up the present proceedings as a test case,
Stockton has invited the court to ignore them.
77. I therefore conclude that the mother’s consignment to the pool of possible
perpetrators of the injuries to T-L is irrelevant to whether the three subject children
are likely to suffer significant harm.
78. The issue between myself and most other members of this court arises out
of the following observations:
(a) those of Lady Hale, at paras 50 and 54, that what had been
impermissible in the In re S-B case [2010] 1 AC 678 was for the court to
have made the mother’s consignment to the pool “alone” or “by itself”
the basis for predicting the likelihood;
(b) that of Lord Hope, at para 87, that a person’s consignment to a
pool may “in combination with other facts and circumstances” help to
show that the threshold has been crossed; and
(c) those of Lord Reed, at paras 95, 96 and 98, that a person’s
consignment to a pool cannot “solely” or “by itself” form the basis of a
prediction of likelihood and that “some other cause for concern, besides
[the consignment], must be established”.
79. First, I hasten to make clear that I respectfully agree with a different point
made by Lord Hope at para 87, namely that, in addressing the likelihood that an
 Page 25 uninjured child will suffer significant harm, the court can treat X’s consignment to
a pool of possible perpetrators of injury to a second child as information which
invites further inquiry. It would therefore go too far to say that, at the threshold
inquiry, the consignment should be ignored. It might enable the court to find
relevant facts established. There might, for example, be a disputed allegation that
X had perpetrated the injuries which a third child had suffered; and the real
possibility that X had perpetrated the injuries to the second child might, when
added to the other evidence, lead the court to find the allegation established. X’s
perpetration of the injuries to the third child would then be a relevant fact. By no
alchemy, however, could X’s possible perpetration of the injuries to the second
child then become a relevant fact.
80. My disagreement with most of my colleagues relates to their suggestion,
made most explicitly by Lord Hope, that although X’s consignment to a pool
cannot alone constitute a factual foundation for a prediction of likely significant
harm, it can, if weighed together with other facts which are on any view relevant,
figure as part of the requisite factual foundation. I feel driven to the conclusion
that their suggestion is illogical; and that if, for the purpose of the requisite
foundation, X’s consignment to a pool has a value of zero on its own, it can, for
this purpose, have no greater value in company. I can only hope that their
suggestion, highly authoritative though it will be, will not destabilise the requisite
foundation; will not in practice lead to a prediction about a real possibility in the
future being founded, in part, on no more than a real possibility about what
happened in the past; and will not, by the back door, lead to the ascendancy over
the majority view in In re H (Minors) [1996] AC 563 of the minority view which,
so Lord Reed (with whom Lord Clarke and Lord Carnwath agree) indicates, would
in principle have held some attraction for him.
LORD HOPE
81. It is not the function of the court to give rulings on points of law arising
from a hypothetical state of facts. But I do not see this appeal, or the approach that
has been taken by the local authority in pruning the case as it has done in order to
present us with a single issue on which authoritative guidance is said to be needed,
as open to that criticism. From time to time cases of the kind that require that sort
of treatment do come up, and it is in the public interest that the court should
respond to them in as helpful a way as possible. That is especially so where the
problem to which its attention has been drawn is said to be due to a difficulty in
applying the way judges have interpreted the provisions of a statute to a given set
of facts, which need to be isolated from their usual surroundings in order to obtain
a definitive ruling on the point.
 Page 26 82. The court will, of course, need to be satisfied that the issue which has been
raised is one which does genuinely require attention, and is not itself an artificial
one. It is, no doubt, highly unusual for cases under section 31(2) of the Children
Act 1989 to be decided on such a narrow basis. The question whether the threshold
has been crossed must almost always be decided on a consideration of all the facts.
Had it not been for the need for guidance on the point that has been raised, that
would certainly have been the proper way to approach this case. But I am entirely
satisfied that the issue that has been presented to us in this appeal is one of general
public importance and that we should deal with it.
83. I also think that such facts as we have at our disposal suggest that it would
be wrong to criticise the local authority for having acted irresponsibly. JJ’s
relationship with SW, with whom she was living at the time of T-L’s death, ended
more than five years ago. Since then she has formed a new relationship with DJ, to
whom she is now married, and she has been looking after the three children who
are the subject of these proceedings for about four years and her new baby for
more than a year. So far as we know, there has been no cause for concern. It would
be open to the local authority to take the appropriate action at any time if there
were grounds for thinking that the children were suffering or were likely to suffer
significant harm. I am prepared to assume in the local authority’s favour that it
would not have approached this case in the way it has done if there were reasons
for thinking that it was putting the children at risk of suffering significant harm by
doing so.
84. Turning to the issue that has been presented to us, the golden rule must
surely be that a prediction of future harm has to be based on facts that have been
proved on a balance of probabilities. I would respectfully endorse Lord Wilson’s
observation in para 75, repeating what he said in In re F (Interim Care Order)
[2011] EWCA Civ 258, [2011] 2 FLR 856 that this is a bulwark against too ready
an interference with family life on the part of the state. One has only to reflect for a
moment on the tragic consequences of some of the notorious cases of two decades
ago to appreciate the wisdom of this remark. They were referred to by the First
Division of the Court of Session in L, Petitioners (No 1) 1993 SLT 1310, 1313: see
also Rochdale Borough Council v A [1991] 2 FLR 192; Sloan v B 1991 SC 412
(the Orkney case). L was a case where eight children from three separate families
in Ayrshire were made the subject of place of safety orders under Part III of the
Social Work (Scotland) Act 1968 on inadequate evidence. It was several years
before those orders could be set aside, and it took many months of careful and
skilled work after that to bring the families who had been split up in traumatic
circumstances together again.
85. These were extreme examples. Many other cases of unjustified removal
may be expected to occur if the golden rule is not adhered to. Unjustified removal
can itself result in significant harm to the children – the very thing that section 31
 Page 27 was designed to prevent. It is not just the immediate distress of separation. Longterm relationships between parents and their children can be damaged too, as the
court found in the Ayrshire case in the series of unreported hearings that it took to
restore the situation as closely as possible to what it had been before the removal
took place.
86. To identify what is and is not a “finding of fact” for the purposes of the
threshold, which looks to the future, is only the first step in the analysis. Views
may differ as to what is truly a “fact” for this purpose, but I do not think that one
need dwell on this question. Anything that is proved on a balance of probabilities
may be taken into account to see what can be made of it. The crucial steps are to
identify what is relevant and what is not, and then to determine whether what is
found to be relevant is sufficient for a finding that the threshold has been crossed.
If it is not, the question will be whether there are other facts and circumstances that
can be brought into account to satisfy this requirement.
87. Let us assume that the question is whether the child would be at risk while
in the care of X. A finding that X is in the pool of two or more possible
perpetrators of harm that a child sustained in the past is a finding of fact. It means
that, because X is in the pool, it is possible that X was the perpetrator. If the
perpetrators are still together, it will be relevant, and may on its own be sufficient,
to show that the threshold has been crossed. If the parties have separated and X is
the carer, I decline to say that a finding that X was in the pool will no longer be
relevant. That is so for two reasons: first, because it is information which invites
further inquiry as to whether the subsequent child is likely to suffer harm while in
the care of X; and, second, because, in combination with other facts and
circumstances that the inquiry reveals about X’s attitude or behaviour, it may help
to show that this threshold has been crossed. It may have a bearing on the weight
of the evidence when looked at as a whole, including an assessment of the balance
of probabilities.
88. Each case will turn on its own facts, and the context in which the finding is
being examined will vary from case to case. It is not possible, dealing with an
issue about the risk of future harm in the abstract as we are here, to be more
precise than that. So I do not, with respect, agree with Lord Wilson that the finding
can never be relevant. But it will not on its own be sufficient. The crucial point is
this: it cannot, and must not, be treated on its own as a finding of fact that it was X
who caused or contributed to the injuries.
89. 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
 Page 28 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.
90. 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) [2010] 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.
91. For these reasons, and for those given by Lady Hale, Lord Wilson (except
in his final three paragraphs) and Lord Reed I too would dismiss the appeal.
LORD SUMPTION
92. I share the misgivings of Lord Wilson about the suggestion that something
which has not been proved to the requisite standard and therefore has no weight of
its own at the threshold stage, can nevertheless add to the weight of something else
that has been proved. I therefore agree with the observations at paragraphs 78-80
of his judgment. With that reservation, I agree with the judgment of Lady Hale and
would, like the rest of the court, dismiss the appeal.
LORD REED (with whom Lord Clarke and Lord Carnwath agree)
93. I see the attraction of the view that the approach to the interpretation of
section 31(2)(a) of the Children Act 1989 adopted by the majority in In re H
(Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 was over-complicated
and has had unfortunate consequences. As Lord Lloyd of Berwick said, at p 581:
“Parliament has asked a simple question: Is the court satisfied that
there is a serious risk of significant harm in the future? The question
should be capable of being answered without too much overanalysis.”
 Page 29 The number of subsequent appeals concerned with the interpretation of section
31(2)(a) suggests that the approach adopted in that case may have raised problems
of interpretation or application calling for repeated clarification. This is
unfortunate, especially in an area of the law which has to be applied on a daily
basis by courts at all levels, and in which clarity is therefore of particular
importance. Nevertheless, it is too late to reconsider the decision in In re H. The
view of the majority has been followed in two later decisions at the highest level,
as Lady Hale has explained, and it must in my view be treated as settled law.
94. The case of In re H was itself concerned with the question whether, where a
child alleged that she had been sexually abused and that allegation was the sole
cause for concern, the allegation had to be proved before the court could intervene.
As Lord Nicholls of Birkenhead explained at p 591, the conclusion that it did was
consistent with the terms of section 31(2)(a), which permit intervention where “the
child concerned is suffering, or is likely to suffer, significant harm”. Why, it was
asked, would Parliament have provided the former of those alternatives, if the
likelihood of harm (construed as meaning a real possibility) would be sufficient in
a case where previous harm was alleged but not proved?
95. As Lady Hale has explained at paras 48-50 of her judgment, if In re H
established that a real possibility of past harm was an impermissible basis for
inferring a real possibility of future harm, the decisions of the Court of Appeal in
Lancashire County Council v B [2000] 2 AC 147, and of this court in In re S-B
(Children) (Care Proceedings: Standard of Proof) [2009] UKSC 17; [2010] 1 AC
678, established that a real possibility that X was the perpetrator of past harm was
an insufficient basis for inferring a real possibility that X might perpetrate future
harm. This conclusion does not cause any difficulty in circumstances where all the
possible perpetrators of the past harm are also responsible for the future care of the
child in question: where for example a child is living with X and Y, proof that
either X or Y previously harmed another child may provide a basis for inferring
that either X or Y might harm the child in question, and that there is therefore a
real possibility of that child’s being harmed. The court cannot on the other hand
draw such an inference, following Lancashire County Council and In re S-B,
where it is proved that either X or Y harmed another child but it is only X who is
now responsible for the care of the child in question. In other words, where the
person who harmed a child cannot be identified, the threshold cannot be met in
relation to another child solely on the basis that a possible perpetrator of the harm
is involved in the care of that child unless all possible perpetrators are so involved.
96. In substance, as it appears to me, the court is saying that, as a matter of law,
a real possibility that X harmed another child in the past is not by itself a basis
upon which the court can properly be satisfied that there is a likelihood that X will
harm the child in question in the future. A basis for such a rule can be found,
 Page 30 ultimately, in the language of section 31(2)(a): as Lady Hale has explained, the
decision in In re H reflected the terms of that provision, and that decision, together
with the subsequent decisions of the House of Lords and the Supreme Court,
including the decision in In re S-B, form a coherent body of law. Support for such
a rule can also be found in the contrast between section 31(2)(a) and section
43(1)(a), which applies where the court is satisfied that the applicant “has
reasonable cause to suspect that the child is suffering, or is likely to suffer,
significant harm”. The approach adopted in In re S-B also derives support from the
legislative history of section 31(2), as Lady Hale has explained.
97. I am, with respect, less convinced, at least in the absence of any argument
on the point, by Lord Wilson’s suggestion that it is an approach which the court is
compelled to adopt in order to comply with article 8 of the European Convention
for the Protection of Human Rights and Fundamental Freedoms. Article 8 is
undoubtedly relevant to the circumstances in which a care order should be made,
but there seems to me to be room for argument as to whether it is engaged by a
provision which merely confers upon the court the jurisdiction enabling it to make
such an order. As Lord Clyde explained in the Lancashire County Council case
[2000] 2 AC 147, 170, section 31(2) merely opens the way to the possibility that
an order may be made. A care order will only be granted by the court after careful
consideration of the case in accordance with section 1, including consideration of
the matters specified in section 1(3) and the requirement in section 1(5) that an
order is only to be made if the making of it would be better for the child than the
making of no order at all. The need for caution and restraint in the making of an
order is further underlined by the requirement that any order be proportionate in
order to comply with article 8 of the Convention.
98. 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.
 Page 31 99. For these reasons, and those given by Lord Hope and Lady Hale, I agree
that the appeal should be dismissed.