Re O and N; Re B - Uncertain evidence and risk-taking in child protection cases [2004] CFLQ 63

This commentary critically examines how the House of Lords, when faced with uncertain facts, has applied different standards of proof at the threshold and welfare stages of care proceedings. It proposes that the 'real possibility' test should be applied at all stages of the proceedings. This test strikes the correct balance between protecting children from future risk and interfering, perhaps wrongly, in their lives and in the lives of their parents. However, where there is uncertainty about whether a child has been harmed, or uncertainty about who caused the harm, great caution is needed before family ties are seriously disrupted or terminated. A care plan that protects the child from danger, and no more, may be all that is permitted by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. Proportionality in the face of uncertainty requires that the door is left open to a child's eventual re-integration with her family. This will normally, although not necessarily, be in the interests of the child.