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(Supreme Court, Lady Hale, Lords Hope, Clarke, Wilson, Sumption, Reed, Carnwath, 20 February 2013)
A 3-week-old baby had died in her parents' bed with 17 fractures to her ribs, bruising and severe untreated nappy rash. The cause of death was asphyxia by obstruction of the airways but the precise mechanism was unascertained. When the parents had a second child, care proceedings were initiated and a fact-finding hearing determined that the first baby had suffered non-accidental injuries and that her death was caused either by one parent lying on her during the night, or as a result of deliberate suffocation.
A final care order was made in respect of the second child on the basis that one of the parents had caused the first baby's injuries and the other was protecting him or her. The parents subsequently separated and the mother moved to north-east England and commenced a new relationship with a man who had two children aged 5 and 6. The mother moved into their family home and after a brief reconciliation with the father of her two children, she became pregnant. DNA testing later established that the mother's new partner was not the father. The mother had, however, continued her new relationship and, since the child's birth, lived with her new partner and his two children as a family unit. They were now married and had a fourth child.
The local authority in north-east England were unaware of the mother's involvement with social services in her hometown until she had given birth to her third child and had been living with her new family for 2 years. Once the local authority received material on the mother's history they initiated a child protection plan which required the mother to leave the family home.
In care proceedings a preliminary issue was raised as to whether the results of the fact-finding hearing could support a determination under s 31 of the Children Act 1989 that the threshold criteria were satisfied in relation to a different family unit comprising the mother, her new partner and the three children. In the preliminary issue hearing the judge concluded that the established facts could not support a threshold finding in relation to the new family. Care proceedings were dismissed and the mother returned to the family home. The local authority appealed.
In the Court of Appeal the appeal was dismissed on the basis that the judge had been bound by the authorities in Re B and W (Threshold Criteria)  2 FLR 833, Re S-B (Children) (Care Proceedings: Standard of Proof)  1 FLR 1161 and Re F (Interim Care Order)  2 FLR 856 and unless the local authority could prove a child was at risk of significant harm based on the establishment of past facts proved on the balance of probabilities then the judge had no option but to disregard the earlier adverse findings. However, the court found that the inconsistency of the authorities, specifically with the Lord Nicholls trilogy of cases including Lancashire County Council v B  1 FLR 583, was causing some confusion to those charged with the protection of children and that there was a pressing need for the issue to be determined by the Supreme Court.
The Supreme Court dismissed the appeal.
The bulwark or golden rule in care proceedings was the threshold imposed by s 31 of the Children Act 1989. Those conditions existed to protect the child and family from unwarranted interference by the State. Reasonable suspicion was a sufficient basis for the authorities to investigate and even to take interim protective measures, but it could not be a sufficient basis for the long-term intervention, frequently involving permanent placement outside the family, which was entailed in a care order.
The Supreme Court unanimously found that as a matter of law, a real possibility that X harmed another child in the past was not by itself a basis upon which the court could properly be satisfied that there was a likelihood that X would harm the child in question in the future. That principle demonstrated no inconsistency in the case-law nor with developments in criminal and civil law.
Although several findings had been made by the judge which might have been relevant to an assessment of the mother's capacity to parent, the local authority had acquiesced in treating this as a one point case. The mother had returned to the family unit and cared for her new baby for over a year. In the interests of fairness the proceedings should not continue. If the local authority wished to make a case that any of the children were likely to suffer significant harm they would need to initiate fresh proceedings.
Per Lords Wilson and Sumption: in disagreement with the other members of the court, found the suggestion illogical that although X's consignment to a pool could not alone constitute a factual foundation for a prediction of likely significant harm, it could, if weighed together with other facts which were on any view relevant, figure as part of the requisite factual foundation.