Family analysis: Maud Davis, partner at TV Edwards LLP, says the judgment in A local authority v A mother and others  EWHC 3741 (Fam),  All ER (D) 146 (Dec) makes it clear that the risk of significant harm has to be established on the basis of evidence, and not ‘assumptions or speculation on future behaviour’.
What are the practical implications of the judgment?
The judgment makes it clear that however startling or unusual the facts of the case, the basic principles apply. So, even though there was evidence of terrorist connections (in the form of convictions against the father, and the fact that he was subject of a terrorist prevention and investigation measure (TPIM)), the court still had to look at the evidence of significant harm—or risk of significant harm—to the children, in the care of their parents (in line with the threshold criteria set out in s 31 of the Children Act 1989 (ChA 1989)). The risk of significant harm has to be established on the basis of evidence, and not ‘assumptions or speculation on future behaviour’.
MacDonald J refers to the important judgment in Re A
 EWFC 11,  1 FLR 1, with its reminder that facts relied on by a local authority to establish the threshold criteria need to justify any conclusion that a child has suffered, or is at risk of suffering, significant harm.
The court was also clear that the local authority could not use any ChA 1989, s 17 (children in need) work as a way of supervising the children, when the local authority had already accepted that it could not succeed in an application for a supervision order.