Past no predictor of the future

The possibility that a mother may have harmed her child in the past is not sufficient proof to demonstrate that another of her children is “likely to suffer” harm in the future, the Supreme Court has unanimously ruled.

In the matter of J (children) [2013] UKSC 9 concerned the threshold that must be satisfied before a care or supervision order can be granted, under s 31(2) of the Children Act 1989.

The test includes that the child must have suffered or be “likely to suffer significant harm”.

Dismissing the local authority’s appeal, Lady Hale said case law had “consistently held that a prediction of future harm has to be founded on proven facts: suspicions or possibilities are not enough. Such facts have to be proved on the simple balance of probabilities.

“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.

“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.”

The local authority brought care proceedings for three children who are cared for by JJ, the mother of the youngest child, and her husband, DJ, the father of the other two children from a previous relationship. JJ’s first child died of non-accidental injuries as an infant in 2004 and her second was subsequently adopted. A judge had found that either JJ or her previous partner caused the injuries and the other had at least colluded to hide the truth.