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Supreme Court will decide this week whether finding of fact can be relied upon in respect of later children

Panel of seven justices will give judgment on 20th February

The Supreme Court is due to hand down its judgment on Wednesday, 20th February in Re J (Children).

The Court will determine whether a previous court finding that one or both of two individuals caused significant harm to a child constitutes a 'finding of fact' in subsequent proceedings aimed at determining whether there is a real possibility that other children will suffer harm in the care of one or other of those individuals.

JJ is the mother of three children with her former partner SW. On 29 March 2004 the eldest of those children, T-L, was found dead having suffered numerous injuries. Following the birth of the couple's second child, S, care proceedings were initiated by the local authority in South Wales in which it was found that JJ and SW were the two possible perpetrators of T-L's death although the Court found there to be no definite evidence linking one parent or the other to the injuries T-L sustained. S was taken into care and JJ and SW subsequently separated. JJ later went to live in the north of England with a new partner, DJ, and his two children, H and T, from a previous relationship. JJ later had another child, I, again with SW, although both JJ and I continued to live with DJ and his children. In December 2010 the local authority became aware of the previous Court findings in relation to S and instigated a child protection plan under which they required JJ to leave the new family home she shared with DJ, H, T and I.

The local authority also issued applications for care orders in respect of H, T and I. The Court dismissed those applications on the grounds that it had not been proven that JJ was the perpetrator of T-L's injuries and there was binding authority to the effect that findings of fact which did not identify the actual perpetrator had to be ignored in evaluating the likelihood of future harm to other children under section 31(2) of the Children Act 1989. An appeal against this decision was dismissed by the Court of Appeal in Re J (Children) [2012] EWCA Civ 380. However, the Court of Appeal felt that (a) the case law was inconsistent; and (b) there was a substantive difference between cases in which there had been no finding of past harm and cases in which past harm had been established but the identity of the actual perpetrator had not been proven to the civil standard; in the latter category of cases the Court of Appeal was of the view that courts should be able to consider such evidence.

The appeal was heard by a panel of seven justices comprising Lord Hope of Craighead, Lady Hale of Richmond, Lord Clarke of Stone-cum-Ebony, Lord Wilson, Lord Sumption, Lord Reed and Lord Carnwath of Notting Hill.