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Swimming in the Pool: relevant factors to satisfy the threshold criteria after the Supreme Court's judgment in J (Children)

Ben Boucher-Giles of Fountain Chambers considers the Supreme Court’s judgment in J (Children) and considers how it fits into the wider picture of findings as they relate to threshold.

Ben Boucher-Giles, barrister, Fountain Chambers

Ben Boucher-Giles
, barrister, Fountain Chambers

The judgment of the Supreme Court in Re J [2013] UKSC 9 was delivered last week clarifying Lady Hale's obiter remarks in paragraph 49 of Re S-B [2009] UKSC 17 in the face of the ongoing consternation of "local authorities, among other professionals who work in the area of public law and among academic commentators" (Re F (Interim Care Order) [2011] EWCA Civ 258 per Wilson, LJ (as he then was) at paragraph 15). They must remain consternated... The decision was however rather more nuanced than that as we shall see. Where then does Re J fit into the wider picture of findings as they relate to threshold?

The general approach to evidence in relation to threshold
The difficulty which gave rise to Re J has its genesis, in part, in the way in which the standard of proof is applied to threshold. Facts must be established on the balance of probabilities: "The general rule is that if the likelihood that a past event occurred is proved to the requisite standard the law regards that event as definitely having happened. If not, it is treated as not having happened." (per Lord Nicholls in Re O and Another [2003] UKHL 18 at paragraph 10). The test is "the simple balance of probabilities, neither more nor less." (Re B [2008] UKHL 35 at paragraph 70; see also Lord Hoffmann's remarks in paragraph 2).

These same considerations do not apply to predicting future harm. Lord Nicholls set down the test to be applied in Re H [1996] AC 563 at 585F as: "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." A prediction of future harm can be based on any relevant fact and is not limited to past harm (ibid, 591H-592A).

This distinction makes sense – clearly the greater the consequences of the harm, the less certain the risk needs to be before it should be taken seriously. Where then is the protection for the parents from the unreasonable interference of the state, particularly where the risk of future harm is lower than 50%? Predictions of future harm must be based on a proven factual foundation. In Re M and R (1996) 4 All ER 239 it was established that it is not open to a judge to find a risk of future harm based solely on a 'real possibility' that there has been abuse in the past: "the Court must reach a conclusion based on facts, not on suspicion or mere doubts." (per Butler-Sloss, LJ, at 247). The court cannot base a possibility upon a possibility.

Crossing threshold
Threshold is an artificial, legal construct; a hurdle over which local authorities must jump before they can consider the removal of a child from their family. As Hedley J put it in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050 at paragraph 50, "society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent... it is not the provenance of the state to spare children all the consequences of defective parenting." The purpose of threshold "is to prevent the state interfering in the upbringing of children simply on the basis that it could do better than the parents" (Re G (Children) (Care Order: Evidence) [2001] EWCA Civ 968, per Hale, LJ (as was) at paragraph 8).

The burden of proving the facts upon which threshold is said to be crossed falls on the state:  Re H [1996] AC 563 at 586B. This was recently reiterated by Ward LJ in Re M (A Child) [2012] EWCA Civ 1580 where the absence of a benign explanation for a child's injuries did not automatically render them non-accidental nor lead to the conclusion that the true explanation was a malevolent one. Threshold is only relevant at the point at which protective measures (or proceedings) are initiated: Re M [1994] 2 A.C. 424.

Once past harm has been established on the balance of probabilities the court must then decide whether this harm is attributable to the care given to the child, even if not necessarily by the child's primary carers (the 'attributable condition'). In Lancashire County Council v B [2000] AC 147 it was held that threshold may be crossed if it can be said that at the relevant time (i.e. when protective measures or proceedings are initiated) the child suffered significant harm attributable to the absence of proper care and the carers cannot be excluded from the pool of perpetrators (a 'Lancashire finding'). The court should exclude a carer from the pool unless it can be said that there is a "real possibility" that they were the perpetrator (Lady Hale in Re S-B [2009] UKSC 17 at paragraph 43).

The decision in Re J
This brings us to the difficulty which arose in Re J. Where a judge has made a Lancashire finding against a parent in previous proceedings and the pool of potential perpetrators then separates, can a local authority use the Lancashire finding to establish threshold in subsequent proceedings? It is appropriate that Lady Hale dealt with the apparent confusion created by paragraph 49 of Re S-B in paragraph 49 of her lead judgment in Re J:

"49. 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."

In paragraphs 52 and 53 Lady Hale gives some examples of the sorts of questions which courts should consider when deciding whether threshold has been crossed. It should of course be remembered that merely because threshold is crossed a care or supervision order does not follow automatically (Re C and B [2000] 2 FCR 614); rather the court must then proceed to consider the welfare checklist. In Re O & N [2004] 1 AC 523 it was established that the court can consider a party's inclusion within a pool of perpetrators at the welfare stage (although only as an unproven allegation); in paragraph 60 of Re J Lord Wilson gives some extremely welcome guidance to judges who must try to reconcile these unproven allegations against the welfare needs of a child.

The caveat: using allegations to establish facts
The court was divided over one question: what use could be made in subsequent proceedings of the fact that a carer had been previously confined to a pool of perpetrators. Lord Reed (with whom Lord Clarke and Lord Carwath agreed), Lord Hope and Lady Hale were aligned on this point; Lord Wilson (with whom Lord Sumption agreed) dissented in paragraphs 78-80 of the judgment. Lord Hope put the proposition in contention most explicitly in paragraph 87 (although see also Lady Hale at paragraphs 50 and 54 and Lord Reed at paragraphs 95-98):

"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."

It is of particular interest to note that Lord Reed was critical of the court's previous approach in Re H, suggesting in paragraph 93 that the law was overly complicated as a consequence but that "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."

Lord Wilson took a different view at paragraph 71. At paragraph 80 Lord Wilson remarks that the suggestion that a non-finding can be used to bolster a separate finding "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."

Some hope for the consternated masses?
Lord Hope's comments at paragraph 87 may give some degree of reassurance to those who feel that the balance between protecting parents from unwarranted interference and their children from harm has swung too far in favour of the parents. It is not entirely clear how this might operate: whilst the Supreme Court unanimously accepted that a judge could use the fact that a parent has a Lancashire finding in relation to a previous child to assist in establishing as fact on the balance of probabilities an allegation in relation to a new child ("how likely is it that a second child would be harmed in the same fashion by two different perpetrators", etc.), it is more difficult to see how an unproven allegations (or indeed several) can be said to contribute directly toward a proven fact. This, as Lord Wilson points out in paragraph 80 of the judgment, could be seen as a step toward the dissenting view in Re H and may give rise to the need for further guidance. Perhaps with legal aid in private law matters about to disappear their Lordships are trying to assist impoverished counsel with appellate briefs?