New Judgment: Re J (Children)  UKSC 9
20 Wednesday Feb 2013
On appeal from:  EWCA Civ 1511
The issue in this appeal was whether a child can be regarded as “likely to suffer” harm if another child has been harmed in the past and there was a possibility the parent now caring for them was responsible for that harm to another child. The High Court held that a likelihood of significant harm can only be established by reference to past facts that are proved on the balance of probabilities – mere possibility would be insufficient. The Court of Appeal upheld this view.
The Supreme Court unanimously dismissed the local authority’s appeal, with Lords Wilson and Sumption expressing disagreement on one point. It is a serious matter for the state to remove a child from their family of birth, and the high threshold of s 31(2) of the Children Act 1989 is an important measure to protect a family from unwarranted intrusion. The wording of s 31 has been the subject of six appeals to the House of Lords and Supreme Court; all have consistently held that a prediction of future harm has to be founded on proven facts. The dissenting point was that as the consignment of a person to a pool of possible perpetrators of injuries to a child could not constitute a factual basis for prediction of likely future harm to another child, then, as a matter of logic, it could not constitute part of a factual basis in combination with other facts and circumstances.