Case Comment – Re J (Children)  UKSC 9
08 Friday Mar 2013
On 20 February 2013 the Supreme Court handed down judgment in the matter of J (Children). The case concerns the problems faced when a child has suffered harm and while it is possible to identify the individuals that make up the pool of potential perpetrators, it is not possible to identify which specific individual caused the harm. The question was whether the finding that JJ was in the pool of possible perpetrators of harm against a child meant that other children in her care were ‘likely to suffer’ harm in the future.
Care proceedings had been issued in respect of three children who were in the care of DJ and JJ. The local authority sought to argue that the children were likely to suffer significant harm because JJ’s first child T-L with her previous partner SW, had died as a result of serious non-accidental injury. In earlier care proceedings issued in respect of JJ and SW’s second child, S, the court found that although it was not possible on the balance of probabilities to decide who had inflicted the injuries on T-L, both JJ and SW were possible perpetrators. Either JJ or SW had caused T-L’s injuries and the other had at the very least colluded to conceal them
The Children Act 1989, s 31(2) sets out the threshold that must be crossed in order for the court to make a care and supervision order in respect of a child. In order for this threshold to be crossed the child must have suffered, or be likely to suffer, significant harm that is attributable to the care (or lack thereof) given to the child. The local authority sought to rely on the previous finding that JJ was one of the possible perpetrators of T-L’s injuries to argue that the threshold had been crossed in relation to the three children now in the care of JJ and DJ.
The High Court rejected this argument, and held that a finding that a child is likely to suffer significant harm could only be based on facts that had been proven on the balance of probabilities; the mere possibility that JJ harmed T-L was not sufficient. Dismissing the local authority’s appeal, the Court of Appeal agreed. The local authority appealed to the Supreme Court, and the case was heard on 17 and 18 December 2012.
Judgment of the Supreme Court
Dismissing the appeal, Lady Hale stressed the seriousness of the matter; removing a child from its family represents a serious interference with the right to respect for family life. Yet it is an equally serious matter that children are protected from violence and neglect in their own homes. S 31(2) attempts to balance these two competing concerns by setting the threshold that must be passed before a child can be removed from its birth family. As above, s 31(2) not only allows a care and a supervision order to be made in respect of a child who has suffered significant harm, but also in respect of a child who is likely to suffer such harm in the future.
Lady Hale found that the case of re S-B  1 AC 678 represented a correct statement of the law in this area; the “real possibility” that an individual had harmed a child could not be the sole basis upon which a judge could conclude that the child was likely to suffer harm in the future.
“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.”
However, Lady Hale also found that the fact that an individual is in the pool of potential perpetrators of harm to child is one of the many facts which may be relevant to the exercise of prediction future harm to another child. Thus is does not follow that in circumstances where it is not possible to ascertain the specific perpetrator of the past harm, it is not possible to establish future likelihood of harm. Rather, a real possibility that a parent has harmed a child in the past is not, by itself, sufficient to establish the likelihood that he/she will cause harm to another child in the future.
Lord Wilson, while also dismissing the appeal, disagreed on that point arguing that if a finding that a parent was a ‘possible perpetrator’ could not alone constitute a factual foundation for a prediction of likely significant harm to another child, it was illogical that it could do so in combination other facts and circumstances. Lord Sumption agreed.
As Lady Hale commented in her judgement, this issue has been considered by the House of Lords and the Supreme Court in no fewer than six previous cases; In re M  2 AC 424; In re H  AC 563; Lancashire County Council v B  2 AC 147; In re O  1 AC 523; In re B  AC 11; and In re S-B. This wealth of past authority illustrates the importance of the construction of s 31(2) and the difficulties that have been faced in balancing the competing rights of parents and children in care applications. Further clarity to the law in the area then is certainly to be welcomed.
While it is likely that Local Authorities may now have to gather more evidence to support care applications where the risk of future harm is based on a real possibility that an individual was a perpetrator of past harm, as the Court pointed out, in reality cases such as this are rare. Few cases rest on the single issue of the possibility that an individual has harmed another child in the past; there will usually be all manner of other readily provable facts which can be used to establish the likelihood of future significant harm.
This decision undoubtedly makes it easier for individuals who have faced accusations of causing harm to a child that could not be proved to start afresh and build a new life. However, this judgment could also lead to some potentially concerning results. JJ and SW’s second child S was taken into care based on the basis of the fact that one or the other of them had harmed T-L, even if it was not possible to establish precisely which individual was responsible. However, the three children JJ cared for in her new relationship were not; a care order could not be based solely on the real possibility that JJ had caused harm to T-L. It follows then that should SW start a new family, any children in his care also could not be removed solely on the basis of his inclusion in the pool of possible perpetrators of the harm caused to T-L. Thus a child being cared for by two parents who together make up the pool of perpetrators can readily be taken into care, yet if they start new families separately a care order cannot be made in respect of the children who are cared for by only one of the parents from the pool, despite the fact that a court has found that one or the other of them was responsible for the past harm to a child.