CA-2025-001564 - [2025] EWCA Civ 1368

A child is likely to suffer harm if there is a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case: Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] 1 AC 563; [1996] 1 FLR 80, at 585.

The same approach is to be taken when assessing the likelihood of harm for the purpose of the s. 31 threshold and when assessing risk under the s.1(3) welfare checklist: Re M and R (Child Abuse: Evidence) [1996] EWCA Civ 1317; [1996] 4 All ER 239 at 246, approved in Re O and N (Minors) (Care: Preliminary Hearing) [2003] UKHL 18; [2004] 1 AC 523; [2003] 1 FLR 1169 and Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35;[2009] 1 AC 11.

The court’s conclusions must be based on facts. Facts are evidence of which a court can be judicially satisfied to the requisite standard of proof. In Re H Lord Nicholls explained this with clarity at 589C under the title “A conclusion based on facts”:

“The starting point here is that courts act on evidence. They reach their decisions on the basis of the evidence before them. When considering whether an applicant for a care order has shown that the child is suffering harm or is likely to do so, a court will have regard to the undisputed evidence. The judge will attach to that evidence such weight, or importance, as he considers appropriate. Likewise with regard to disputed evidence which the judge accepts as reliable. None of that is controversial. But the rejection of a disputed allegation as not proved on the balance of probability leaves scope for the possibility that the non-proven allegation may be true after all. There remains room for the judge to have doubts and suspicions on this score. This is the area of controversy.

In my view these unresolved judicial doubts and suspicions can no more form the basis of a conclusion that the second threshold condition in section 31(2)(a) has been established than they can form the basis of a conclusion that the first has been established ….

At trials … the court normally has to resolve disputed issues of relevant fact before it can reach its conclusion on the issue it has to decide. This is a commonplace exercise, carried out daily by courts and tribunals throughout the country. This exercise applies as much where the issue is whether an event may happen in the future as where the issue is whether an event did or did not happen in the past… Then, but only then. can the court reach a conclusion on the crucial issue. A decision by a court on the likelihood of a future happening must be founded on a basis of present facts and the inferences fairly to be drawn therefrom.

The same, familiar approach is applicable when a court is considering whether the threshold conditions in section 31(2)(a) are established. Here, as much as anywhere else, the court's conclusion must be founded on a factual base. The court must have before it facts on which its conclusion can properly be based. That is clearly so in the case of the first limb of section 31(2)(a). There must be facts, proved to the court's satisfaction if disputed, on which the court can properly conclude that the child is suffering harm. An alleged but non-proven fact is not a fact for this purpose. Similarly with the second limb: there must be facts from which the court can properly conclude there is a real possibility that the child will suffer harm in the future. Here also, if the facts are disputed, the court must resolve the dispute so far as necessary to reach a proper conclusion on the issue it has to decide.”

At 591F he added:

“It is, of course, open to a court to conclude there is a real possibility that the child will suffer harm in the future although harm in the past has not been established. There will be cases where, although the alleged maltreatment itself is not proved, the evidence does establish a combination of profoundly worrying features affecting the care of the child within the family. In such cases it would be open to a court in appropriate circumstances to find that, although not satisfied the child is yet suffering significant harm, on the basis of such facts as are proved there is a likelihood that he will do so in the future.”

Lest there was any doubt, the position was summarised by Baroness Hale in Re S-B (Children) [2009] UKSC 17; [2010] 1 FLR 1161:

“8.

The leading case on the interpretation of these conditions is the decision of the House of Lords in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563. Three propositions were established which have not been questioned since. First, it is not enough that the court suspects that a child may have suffered significant harm or that there was a real possibility that he did. If the case is based on actual harm, the court must be satisfied on the balance of probabilities that the child was actually harmed. Second, if the case is based on the likelihood of future harm, the court must be satisfied on the balance of probabilities that the facts upon which that prediction was based did actually happen. It is not enough that they may have done so or that there was a real possibility that they did. Third, however, if the case is based on the likelihood of future harm, the court does not have to be satisfied that such harm is more likely than not to happen. It is enough that there is "a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case" (per Lord Nicholls of Birkenhead, at p 585F).I would further refer to the statements of Munby LJ in Re A (Fact-Finding: Disputed Findings) [2011] EWCA (Civ) 12, [2011] 1 FLR 1816 at paragraphs 29 and 30.

At paragraph 135 (see [39] above), she described the primary focus of the judgment and hearing as being about the risk of harm arising from the convictions of the grandfather and the “behaviour” of the uncle. No explicit distinction was made at any point between the behaviour he admitted and the behaviour he denied.

Despite being clear at paragraph 51 that she had not been asked to make findings about R’s behaviour at school, she considered that the concerns about his behaviour were part of the overall picture and could not be ignored when assessing the three children’s welfare: see [31(2)] above. At paragraph 153, she considered the concerns around R’s behaviour to be “significant and very concerning in the context of the family’s background.”: see [39] above. However, although some attention had been paid to the possible source of the behaviour at paragraph 50 (see [31(1)] above), no conclusion was reached about whether it lay within the grandparents’ home, as opposed to elsewhere, or at an earlier time.

Building on that, the recorder repeatedly adopted the concerns expressed by Ms Sensicle and the Guardian about “patterns of repeated behaviour in the generations”: see [27] and [31(1)] above and paragraphs 141 and 166 of the judgment ([39] and [42] above), where she said that she shared “the views of Ms Sensicle and the Guardian that it is extremely worrying that not one, but now three generations of the same family have had concerns raised about inappropriate sexual behaviour” and that sexualised behaviour had been displayed in “a 3^rd generation of the family”. For something to be a pattern there has to be a relevant link, but no link was alleged, still less proved, between the grandfather’s behaviour and that of the uncle, or between the adults’ behaviour and that of R.

Instead, the witnesses and the recorder fell back on speculation by asking “where is this coming from and is there something within the household?” No answer was attempted, but the recorder still observed that “As I have already said, this cannot be ignored.”: judgment paragraph 166, [42] above.

Their clear wishes and feelings, which she described as an important factor.

Their strong attachment to their grandparents, which she described as a significant factor.

The high standard of care they had received, giving them “stability, consistency, love and nurture” over a sustained period.

The importance of the children remaining together.

The family’s consistent cooperation with the local authority and the support that had been put in place.

The importance of the children’s school, with its really good understanding of their history and needs.

The fact (not emphasised by the recorder, but in my view highly significant in welfare terms) that the placement enjoyed the support of the parents and was likely to give the children the best chance of maintaining relationships with them.

The distress and trauma that would be involved in removal from the grandparents and a move into care by strangers, which the recorder accepted would be “devastating for the children” and “a huge loss”.

The risk that removal would lead to regression: the recorder said “I cannot say” whether it would be mitigated by the children’s positive time with their grandparents, but she accepted that they would need significant support to understand and process why they had been moved.

The severe reduction in family contact.

The disadvantages of being in long term foster care for over a decade, with the possibility of repeated moves and even separation from each other, against a background of daily life as children in care.

The fact that, despite the identified risks, the children had apparently come to no harm whatever in the past three years.

Sexual abuse is a great evil, but the court’s function is not to protect children from all risk at any price. Here, the standard which the recorder applied was not clear. She recorded without comment the Guardian’s evidence that she was not reassured that the grandparents had the capacity to protect and keep the children “100% safe”, and that “24/7” monitoring would be needed (paragraphs 100 and 102). She does not appear to have considered that the uncle moving out in response to Ms Sensicle’s evidence made any meaningful difference to the risk because he continued to play a significant role in the children’s lives (paragraphs 145-148). Overall, I am left with the sense that the recorder considered that any significant risk of these children being sexually abused in the home, arising from a combination of historic events and lack of protective insight, must lead to removal. That unduly privileged one factor in the welfare checklist over all others.

In this case, the recorder did not enjoy any particular advantage from seeing the witnesses. The only part of the judgment that contains any relevant assessment of the oral evidence is at paragraphs 154 and 173 (see [39] and [42] above), where she speaks of not being reassured by the family’s evidence about their understanding of the risks. She was entitled to find that the family lacked insight (in the sense that it did not see the risks that the court found to exist), but it was unduly rigorous to hold that “without insight the grandparents cannot act protectively” (paragraph 154) or that “just following rules and boundaries is not enough if you don't understand the reasons” (paragraph 182). Similarly, the recorder noted that the grandparents had “not shown a great deal of their own initiative in taking protective steps and are overly reliant on being told what to do.” (paragraph 143, see [39] above). That approach led the recorder to pay inadequate regard to the sustained history of cooperation, and the quality of care that the children had actually received and which she was satisfied would continue (paragraph 118, see [34] above).

Placement in foster carer care would protect the children from the risk of sexual abuse by family members, but it would not “ensure that the children are kept safe from the risk of sexual harm now and throughout their minority” (paragraph 186, see [42] above).

The judge said, rightly, that she could not ignore the expert assessments (paragraph 185, see [42] above), but their recommendations are subject to the same reservations as hers.