Supreme Court clarifies proper approach to determine child abuse

S-B (Children) [2009] UKSC 17

The Supreme Court has clarified the proper approach to decide who has been responsible for harming a child in proceedings taken to protect that child, and others in the family. The Justices unanimously decided that the lower court had taken the wrong approach and remitted the case for a complete rehearing before a different judge.

The case concerned a baby boy who had either been injured by the mother or the father. He had therefore suffered significant harm attributable to a lack of reasonable parental care, as required by section 31(2) of the Children Act 1989. The judge did not ask herself which parent was responsible, although she expressed the view that it was 60% likely that the father had injured the child and 40% likely that the mother had.

The mother and father were separated and the father played no part in the proceedings. At the later welfare hearing, the judge approved the placement of the child for adoption, together with his younger brother, who had been born during the proceedings and placed with foster parents soon after birth. The mother, who had maintained contact and developed a good relationship with the children, appealed.

Lady Hale, giving the leading judgment of the court, held that standard of proof in care proceedings is the balance of probabilities and that is incorrect to apply a heightened standard in relation to gravity of the allegations. Furthermore, where a judge has been unable to identify a perpetrator, it is "positively unhelpful to have the sort of indication of percentages that the judge gave in this case".

The decision to remove the second child, who had never been harmed, was also be remitted for rehearing. The lower judge had held that there was a risk of future harm to him because there was a real possibility that the mother had injured the older child. Howerver the Justices held that this was inconsistent with Re H which held that predictions of future harm must be based on proven findings of fact.

Anne-Marie Hutchinson, a partner at Dawson Cornwell who represented the mother, said: "The decision clarifies once and for all the standard of proof required in fact findings as to the cause of injuries. It also makes clear that assessments of likely future harm must be based on actual facts that have been found."

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