CA-2025-001313 & CA-2025-001318 - [2025] EWCA Civ 1044

The judge approached his decision with care and he reached a conclusion that was open to him, balancing the very specific factors that arose. Far from ‘fudging’ the issue, as the guardian complains, his analysis was clear-sighted and legally coherent. I would dismiss the appeal.

In Re F (A Child: Placement Order: Proportionality) [2018] EWCA Civ 2761; [2019] 1 FLR 779 and Re K (Children) (Placement Orders) [2020] EWCA Civ 1503; [2021] 2 FLR 275, Peter Jackson LJ identified four questions to be answered by a court when assessing risk of future harm in care proceedings under Part IV of the Children Act 1989:

In the present case, the local authority asserts that: (1) the type of harm which the child X might suffer includes serious head injury caused by shaking; (2) there is a real possibility that she may suffer such an injury; and (3) the consequences would be that she would suffer permanent brain damage and possibly death. The central issue between the parties is (2), the likelihood of such an injury arising. The local authority’s case is that there is a likelihood because the mother inflicted the head injuries that led to the death of her first child, Z, in part as a result of her personal circumstances which have not substantially changed in the intervening seven years. The mother denies causing Z’s death. It is her case that there is no likelihood of X sustaining such an injury. In those circumstances, as Mr Wiliam Tyler KC submitted in the course of the appeal hearing, whilst the events in 2018 cannot be ignored entirely, it would be impermissible to proceed on a suspicion or quasi-finding that she was responsible for inflicting Z’s injuries as a basis for assessing risk.

Peter Jackson LJ has concluded that the court can safely answer question (4) and identify the steps which could be taken to reduce the likelihood of harm arising without a fact-finding hearing into the circumstances of Z’s death. I have come to the opposite conclusion.

I gratefully adopt my Lord’s summary of the facts, the judgment at first instance and the submissions made to this Court.

An evaluation of the likelihood or risk of future harm may be required at two stages in care proceedings under the Children Act 1989. The first stage is when the court is determining whether the threshold criteria for making a care or supervision order are satisfied. Under s.31(2):

“A court may only make a care or supervision order if it is satisfied -

(a)

that the child concerned is suffering, or is likely to suffer, significant harm; and

(b)

that the harm, or likelihood of harm, is attributable to -

(i)

the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or

(ii)

the child's being beyond parental control.”

The second stage is when, having concluded that the threshold criteria are satisfied, the court is deciding what order should be made for the children’s future care. At that point, the court applies s.1 of the Act. Under s.1(1) the child’s welfare is the paramount consideration and the court is required by s.1(4) to have regard to the factors in the “welfare checklist” in s.1(3). The list includes, under paragraph (e), “any harm which he has suffered or is at risk of suffering”.

In submissions identifying the relevant legal principles to be applied to the assessment of the likelihood or risk of harm, counsel focused on the decision of the House of Lords in Re B (Care Proceedings: Standard of Proof) [2008] UKSC 35. In fact, that is the third in a series of four cases in the House of Lords and the Supreme Court in which the relevant principles have been elucidated.

The first – and still the leading – case on the meaning of s.31(2) is the decision of the House of Lords in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] 1 AC 563; [1996] 1 FLR 80. In his speech, with which the majority of the House agreed, Lord Nicholls of Birkenhead considered first the meaning of “likely” in the phrase “likely to suffer significant harm”. He concluded (at 585F):

“in section 31(2)(a) likely is being used in the sense of 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.”

Under a further heading “A conclusion based on facts”, Lord Nicholls continued (at 589C)

“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. To decide whether a car was being driven negligently, the court will have to decide what was happening immediately before the accident and how the car was being driven and why. Its findings on these facts form the essential basis for its conclusion on the issue of whether the car was being driven with reasonable care. Likewise, if the issue before the court concerns the possibility of something happening in the future, such as whether the name or get-up under which goods are being sold is likely to deceive future buyers. To decide that issue the court must identify and, when disputed, decide the relevant facts about the way the goods are being sold and to whom and in what circumstances. 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.”

Lord Nicholls proceeded to identify several other factors which supported this interpretation. These included (at 591C) the fact that, if the contrary were true,

“this would effectively reverse the burden of proof in an important respect. It would mean that once apparently credible evidence of misconduct has been given, those against whom the allegations are made must disprove them. Otherwise it would be open to a court to hold that, although the misconduct has not been proved, it has not been disproved and there is a real possibility that the misconduct did occur. Accordingly there is a real possibility that the child will suffer harm in the future and, hence, the threshold criteria are met. I do not believe Parliament intended that section 31(2) should work in this way.”

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.”

Seven years later, Lord Nicholls restated these principles in Re O and N (Minors) (Care: Preliminary Hearing) [2003] UKHL 18; [2004] 1 AC 523; [2003] 1 FLR 1169:

“15.

The first limb of condition (a), the 'significant harm' condition, concerns an existing state of fact: the child 'is suffering' significant harm. In the nature of things this calls for proof, to the requisite standard, of the facts said to constitute significant harm. An unproved allegation that the child has been sexually abused or subjected to non-accidental injuries will not suffice.

16.

The second limb of condition (a) requires the court to evaluate the chance that an event will occur in the future: the child 'is likely to suffer' significant harm. In re H (minors) (Sexual abuse: standard of proof)[1996] AC 563 the House considered the matters which, in this context, the court may take into account in assessing whether the child is likely to suffer significant harm. In the context of section 31(2)(a) 'likely' does not mean more probable than not. It means 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. This is a comparatively low level of risk. By a majority the House held that, for the purpose of satisfying this threshold level of risk in cases (such as alleged sexual abuse) in which there is a dispute over whether the child has indeed suffered past harm, the court may have regard only to harm proved to the requisite standard to have happened. Otherwise the purpose for which the threshold criteria were prescribed by Parliament could be defeated in a case where the only evidence that the child was likely to suffer harm in the future was an unproved allegation that he had suffered harm in the past. It would be extraordinary if, in respect of the self-same non-proven allegations, the self-same insufficient evidence could nonetheless be regarded as a sufficient factual basis for satisfying the court there is a real possibility of harm in the future: see [1996] AC 563, 591.

17.

This would not be an acceptable interpretation of section 31(2). This suggests that, given the purpose of the threshold criteria, both limbs of the 'significant harm' condition call for proof of facts. Like the inference that the child is already suffering harm, the inference that the child is likely to suffer significant harm must be founded on one or more proved facts, as distinct from unproved allegations. Therein lies the protection Parliament intends the threshold criteria shall provide against arbitrary intervention by public authorities. This is the principal rationale for what might otherwise seem an unduly rigid approach.”

In Re B, Lord Hoffmann reiterated these principles in the well-known passage in paragraph 2 of his judgment (“the law operates a binary system in which the only values are 0 and 1” etc.) which, as my Lord has observed, is somewhat reductive as a tool for case management. More pertinently for present purposes, Baroness Hale in Re B addressed an invitation issued by counsel to depart from Re H. Counsel’s submission, summarised by Baroness Hale (at paragraph 53), was that the “artificiality of proceeding on the basis that such harm did not happen at all, when there is a real possibility that it did [was] irresponsible and dangerous”.

Baroness Hale “unhesitatingly declined” the invitation in the following terms (at paragraph 54):

“The reasons given by Lord Nicholls for adopting the approach which he did in Re H remain thoroughly convincing. The threshold is there to protect both the children and their parents from unjustified intervention in their lives. It would provide no protection at all if it could be established on the basis of unsubstantiated suspicions: that is, where a judge cannot say that there is no real possibility that abuse took place, so concludes that there is a real possibility that it did. In other words, the alleged perpetrator would have to prove that it did not. Mr Cobb accepts that it must be proved on the balance of probabilities that a child "is suffering" significant harm. But nevertheless he argues that those same allegations, which could not be proved for that purpose, could be the basis of a finding of likelihood of future harm. If that were so, there would have been no need for the first limb of section 31(2)(a) at all. Parliament must be presumed to have inserted it for a purpose.”

In one respect, the House of Lords in Re B departed from the majority judgment in Re H by holding, (in the words of Baroness Hale at paragraph 70) that “the standard of proof in finding the facts necessary to establish the threshold under section 31(2) or the welfare considerations in section 1 of the 1989 Act is the simple balance of probabilities, neither more nor less”, as opposed to a variable standard depending on the seriousness of the allegation proposed by Lord Nicholls. But the principles derived from Re H under consideration in the present appeal were fully endorsed.

Those principles received a further endorsement from the Supreme Court in Re S-B (Children) [2009] UKSC 17; [2010] 1 FLR 1161. Giving the judgment of the court, Baroness Hale, referring to the threshold conditions in s.31(2), said:

“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).

9.

Thus the law has drawn a clear distinction between probability as it applies to past facts and probability as it applies to future predictions. Past facts must be proved to have happened on the balance of probabilities, that is, that it is more likely than not that they did happen. Predictions about future facts need only be based upon a degree of likelihood that they will happen which is sufficient to justify preventive action. This will depend upon the nature and gravity of the harm: a lesser degree of likelihood that the child will be killed will justify immediate preventive action than the degree of likelihood that the child will not be sent to school.”

This last point echoes the observation made by Lord Nicholls in Re H at p588 and again in Re O and N at paragraph 16. In addressing the question whether there is a real possibility that the child will suffer significant harm in future, the court considers whether the possibility is one which “cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case”. The degree of likelihood required to cross the threshold varies depending on the type of harm. There is nothing abnormal in this variation. It reflects how we deal with risk in our everyday lives.

The approach mandated by the House of Lords and Supreme Court to the assessment of the likelihood of harm at the threshold stage of care proceedings under s.31(2)(a) of the Act also applies to the assessment of risk at the welfare stage under s.1(3)(e). This was the conclusion reached by this Court six months after the decision in Re H in Re M and R (Child Abuse: Evidence) [1996] EWCA Civ 1317; [1996] 4 All ER 239. Butler-Sloss LJ, giving the judgment of the Court, said (at 246j to 247d):

“Section 1(3) requires a court, when considering whether, among other things, to make an order under s 31, to have regard in particular to a number of matters. The subsection then sets out those matters in the welfare checklist. Item (e) of this list is: 'any harm which [the child] has suffered or is at risk of suffering'.

If there is a dispute as to whether the child has suffered or is at risk of suffering harm the task of the judge, when considering whether to make any order whether it be a care or supervision order under s 31 or a s 8 order, must be to resolve that dispute. Unless this is done, it will remain in doubt whether or not the child has suffered harm or is at risk of suffering harm and thus it will remain in doubt whether or not there exist factors which Parliament expressly considered to be of particular importance to be taken into account. The question is how such a dispute is to be resolved.

To our minds there can be only one answer to this question, namely the same answer as that given by the majority in Re H and R (above). The court must reach a conclusion based on facts, not on suspicion or mere doubts. If, as in the present case, the court concludes that the evidence is insufficient to prove sexual abuse in the past, and if the fact of sexual abuse in the past is the only basis for asserting a risk of sexual abuse in the future, then it follows that there is nothing (except suspicion or mere doubts) to show a risk of future sexual abuse.

Mr Newton submitted that this is not so. His point was that if there is a real possibility of harm in the past, then it must follow (if nothing is done) that there is a risk of harm in the future. To our minds, however, this proposition contains a non sequitur. The fact that there might have been harm in the past does not establish the risk of harm in the future. The very highest it can be put is that what might possibly have happened in the past means that there may possibly be a risk of the same thing happening in the future. Section 1(3)(e), however, does not deal with what might possibly have happened or what future risk there may possibly be. It speaks in terms of what has happened or what is at risk of happening. Thus what the court must do (when the matter is in issue) is to decide whether the evidence establishes harm or the risk of harm.”

This approach was endorsed by Lord Nicholls (obiter) in Re O and N and then approved by the House of Lords in Re B. In the latter case the House was invited to overrule Re M and R. At paragraph 54 of her judgment, with which the rest of the House agreed, Baroness Hale, declining the invitation, said:

“If Parliament had intended that a mere suspicion that a child had suffered harm could form the basis for making a final order, it would have used the same terminology of "reasonable grounds to suspect" or "reasonable grounds to believe" as it uses elsewhere in the Act. Instead, as Butler-Sloss LJ pointed out in In re M and R, it speaks of what the child is suffering or is likely to suffer.”

In my view, an analysis of these principles clearly demonstrates the answer to the issue arising in the present appeal. The local authority asserts that the mother inflicted the injuries that led to Z’s death and there is therefore a real possibility that X will suffer significant harm through inflicted injury. The mother denies inflicting Z’s fatal injuries and says that there is no real possibility that X will be injured in her care. The issue of whether there is a real possibility that X will suffer inflicted injuries in the mother’s care therefore turns principally on the question whether the mother inflicted Z’s injuries. A fact-finding hearing into the circumstances of Z’s injuries and death is required to determine: (1) the type of harm which X may suffer in her mother’s care; and (2) the degree of likelihood that she will suffer that harm, bearing in mind that, if the mother was responsible for Z’s injuries, the degree of likelihood required for the threshold to be crossed in X’s case will be less, given the “nature and gravity of the feared harm”.

As Lord Nicholls recognised in Re H, even if a court concludes that the harm alleged to have happened in the past did not occur, it may conclude that there is a real possibility that the child will suffer harm in the future although harm in the past has not been established, where the evidence establishes, on a balance of probabilities, what Lord Nicholls described as “a combination of profoundly worrying features affecting the care of the child within the family”. In the present case, leaving aside the circumstances of Z’s death, there are a number of features of the mother’s background, character and current circumstances which are relevant to the question of whether the child X is at risk in her care and her capacity to care for the child. She has a history of significant mental health issues. She has been diagnosed as suffering from chronic complex PTSD with psychotic features. She has smoked skunk cannabis for many years, including during her pregnancy with X. Dr Van Velsen observed that the mother had “a long and consistent description of her being emotionally labile, hostile, angry and non-collaborative”. She has shown a confrontational and sometimes hostile attitude to a range of professionals. She has been described by the local authority as “highly triggered” and quick to anger with no adequate coping mechanisms in place. In her own childhood, she experienced neglect and abuse and was exposed to domestic violence. Her brother died at the age of 5 months, the cause of death being sudden infant death syndrome. It may be that, taken together, those features give rise to a likelihood that X will suffer significant harm in her mother’s case. But the likelihood would be higher, and the potential harm of much greater significance, if it is established that the mother inflicted the injuries that led to Z’s death. Without a finding that the mother inflicted Z’s fatal injuries it is extremely unlikely that the court would conclude that there was a real possibility that X may suffer harm of that type. With such a finding, the court may conclude, on the totality of the evidence, that there is a real possibility that X will suffer harm of that type, having regard to the degree of likelihood required to cross the threshold in cases involving harm of that type.

At the welfare stage, the court will proceed on the same basis when having regard, as required by s.1(3)(e), to the harm which X is at risk of suffering. Those professionals carrying out assessments to assist the court’s decision about the child’s future care arrangements – which may include, in addition to the local authority social worker and children’s guardian, an independent social worker and psychologist – will take into account any finding as to the circumstances of Z’s death. In the light of that finding, they will scrutinise in careful detail the evidence about the mother’s current circumstances. They will interview the mother and assess her level of understanding and insight. They will advise the court as to the nature and extent of any future risk to X and what steps can be taken to alleviate that risk to enable the mother to care for X safely. Without any finding one way or the other as to whether the mother inflicted Z’s injuries, the professional advisers will be obliged to disregard it. In my view, any risk assessment carried out in such circumstances would be unfair and dangerous to the child.

In this case, the mother’s core submission to the judge, as expressed in paragraph 30 of the judgment, was:

“to acknowledge that a finding of impulsivity by its nature requires risk assessment when considering care of a young child but that the format of the risk assessment and the resultant care planning does not require the clear definition of the outcome or outcomes that might follow from the same.”

The judge accepted this submission, saying (at paragraph 35):

“I do not understand why those working in such a setting would be unable to bring into their care and safety planning the prospect of a range of risk outcomes including that which would be subject to fact-finding. I consider, and agree with those acting for the Mother, that the risk planning is focused on what it is that causes risk (here impulsivity). The question of how that might play out should not be limited only to those outcomes which have been established to have previously arisen as a result. Any such risk planning would be short sighted in the extreme. Rather the risk planning would take a broader approach in its evaluation of the best way to manage risk. Put simply it is most unlikely any care planning would be structured simply to guard against a future risk of ‘shaking’ given any future risk would on balance likely arise in a different way. But risk planning would be able to have regard to risks including loss of control and conduct towards the child, including by ‘shaking’ without such a finding being made.”

The judge’s ultimate reasoning on this issue was summarised in paragraph 43 of his judgment:

“I simply do not accept that in principle the degree of risk to [X] is greater if this finding is made. As I have explained this is to confuse risk with outcome. I also do not agree the nature of the risk is different if this finding is made. Rather this is a risk which falls into a broad category of risks which sit on a spectrum of potential flowing from a finding of impulsive behaviour. The real question is not what may have happened on one occasion and then planning to prevent that but asking what in principle could happen and creating a plan to guard against a range of risks.”

In my view, the judge’s analysis is wrong for several reasons.

First, he was wrong to accept the submission made on behalf of the mother that the risk assessment and the resultant care planning did not require a clear definition of the outcome or outcomes that might follow. In order to assess risk, it is first necessary to identify the outcome – the type of harm – in issue. A finding of impulsivity on the part of a child’s parent does not warrant a risk assessment unless the “range of risk outcomes” of the impulsivity includes the real possibility that the child will suffer significant harm. “Those working in such a setting” would only be entitled to include the risk of serious physical injury and death within the range of outcomes if it was agreed by the parent that such an outcome was a real possibility or after the court had reached that conclusion on the basis of findings as to past events. To include such a possibility within the range of outcomes without agreement or a finding would be manifestly contrary to the principles set out above. The judge’s analysis ignores the point emphasised by Butler-Sloss LJ in Re M and R and by Baroness Hale in Re B that the Act speaks in s.31(2)(a) of significant harm which the child “is likely to suffer” and in s.1(3)(e) of any harm which the child “is at risk of suffering”. As Lord Nicholls said in Re O and N, “for the purpose of satisfying this threshold level of risk in cases … in which there is a dispute over whether the child has indeed suffered past harm, the court may have regard only to harm proved to the requisite standard to have happened.”

Secondly, the judge was wrong to conclude that the degree and nature of the risk to X would be no greater if a finding of loss of control in relation to Z was made. As Lord Nicholls explained in Re L, a real possibility means “a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case”. As Baroness Hale added in Re B, “Predictions about future facts need only be based upon a degree of likelihood that they will happen which is sufficient to justify preventive action. This will depend upon the nature and gravity of the harm.” A finding that the injuries to Z were inflicted by the mother would plainly be relevant to the degree and nature of the risk to X.

Thirdly, the judge was wrong to proceed on the basis that the risk that X would suffer serious physical injury leading to death fell into “a broad category of risks which sit on a spectrum of potential flowing from a finding of impulsive behaviour”. If it is the case that the mother inflicted the injuries which led to Z’s death, the risk to X would not be adequately covered simply by an agreed finding that the mother has the capacity to act impulsively. Many people act impulsively. The central issue in the assessment of risk in this case is whether the mother’s impulsivity may lead her to act violently to the extent of causing the death of a child. A not insignificant number of parents have characteristics identified in this mother – a disturbed childhood with a history of being neglected and abused, significant mental health issues, a history of drug abuse, a confrontational attitude to professionals, and being emotionally labile and quick to anger. Very few of them inflict fatal injuries on a child. The likelihood of someone with those characteristics, who is liable to act impulsively, inflicting fatal injuries on a child through shaking will in all probability be greater if that person has done it before. A finding to that effect will obviously be relevant to the assessment of risk.

As Baroness Hale said in Re B, “the threshold is there to protect both the children and their parents from unjustified intervention in their lives.” But it is also there to protect children from significant harm. The purpose of these proceedings is to devise a plan that will ensure the welfare and safety of the child. In order to devise such a plan, it is necessary to carry out a thorough assessment of the child’s needs, the capacity of the mother to meet her needs, the risks to the child if she is placed with the mother, and the measures needed to support the mother to care for X safely and to alleviate the risks. The focus and details of the assessment, and the consequent plan, will be wholly different if there is a finding that the mother inflicted Z’s fatal injuries.

The judge approached the question of whether there should be a fact-finding hearing by reference to the guidance in the case law, in particular the matters set out by McFarlane J in Oxfordshire County Council v DP, RS and BS [2005] EWHC 1593 (Fam); [2005] All ER (D) 91 (Aug), as approved and developed by this Court inRe H-D-H (Children), Re C (A Child) [2021] EWCA Civ 1192; [2022] 1 FLR 454. The factors identified in the Oxfordshire case are:

“(a)

the interests of the child (which are relevant but not paramount);

(b)

the time that the investigation will take;

(c)

the likely cost to public funds;

(d)

the evidential result;

(e)

the necessity or otherwise of the investigation;

(f)

the relevance of the potential result of the investigation to the future care plans for the child;

(g)

the impact of any fact finding process upon the other parties;

(h)

the prospects of a fair trial on the issue;

As Peter Jackson LJ observed in Re H-D-H at paragraph 21:

“Many of the factors identified in Oxfordshire overlap with each other and the weight to be given to them will vary from case to case. Clearly, the necessity or otherwise of the investigation will always be a key issue, particularly in current circumstances. Every fact-finding hearing must produce something of importance for the welfare decision.”

In most cases, the magnetic factors in deciding whether or not to allow a further fact-finding hearing are likely to be the necessity or otherwise of the investigation and the relevance of the potential result of the investigation to the future care plans for the children. If the investigation is unnecessary, and the result of it irrelevant to the future care plans, it would obviously be wrong to hold a fact-finding hearing. The only reason for holding a fact-finding hearing is to facilitate welfare decisions about the child. Where the investigation and its potential result are of marginal relevance to the future care plans, the arguments for fact-finding hearing may be outweighed by other factors, such as the time that the investigation will take and the likely cost to public funds. But where the potential result of the investigation is of the utmost importance to the future care plans for the child, it is difficult to think of circumstances in which that factor would be outweighed by any of the others.

In my view this case falls into that category. There are a number of arguments against holding a fact-finding hearing. They include the delay in making decisions about how X’s future welfare needs will be met, the costs that will be incurred, the fact that the passage of seven years since Z’s death may impinge on the quality of the evidence, and the impact on the mother, and resultant impact on X. But those factors are outweighed by the importance of securing a sound basis for making the decisions about X’s future. I note that, whilst acknowledging the concerns about “the very serious delay in the case, the substantial costs and the profound likely impact on the mother with resultant likely impact on X and the care given to that child”, and the “residual concerns as to the fairness of any hearing”, the judge reached his conclusion on the basis of his views about the necessity of a fact-finding hearing and the impact the same would likely have on the future planning for the child. He observed that “in the final analysis these are the magnetic features.” I agree that they are the magnetic features, but for the reasons set out above I have reached the opposite conclusion about them.

I would therefore allow the appeals, set aside paragraph 1 of the judge’s case management order, and order that there should be a fact-finding hearing into the circumstances of Z’s death before another judge.

In the course of his carefully reasoned reserved judgment which is the subject of this appeal Judge Willans said at [28] that the question he had to decide was “whether the care planning for X would in fact or in all likelihood be materially different by reason of the court finding that some years previously and whilst herself a child the mother acted in a manner which led to the death of Z?”

It was accepted by Mr Twomey KC for the local authority that this was the correct question. The issue was whether the judge’s answer to the question was wrong.

The important points which emerge from the judge’s decision include these:

These, among other factors, led the judge to say:-

“I cannot see that a determination on the balance of probabilities as to what happened [to Z] will have a meaningful impact on being able to dispose of this case justly.”

Having formed that view, he added that his conclusion was supported by the very serious delay in the case, the substantial costs and the “profound likely impact on the mother with resultant likely impact on X”.

In Re H-D-H Children [2021] EWCA Civ 1192, Peter Jackson LJ, with whom King LJ and Sir Patrick Elias agreed, said at [23]:

“These are not always easy decisions and the factors typically do not all point the same way. Most decisions will have their downsides. The reasoned case management choice of a judge who approaches the law correctly and takes all relevant factors into account will be upheld on appeal unless it has been shown that something has gone badly wrong with the balancing exercise.”

This was not an easy decision and there were indeed factors pointing both ways, as shown by the fact that Peter Jackson LJ and Baker LJ have taken different views about the outcome of this appeal. To my mind this is a case where the principle set out in Re H-D-H should be applied. The judge approached the law correctly and took all relevant factors into account in the balancing exercise. I do not consider that it has been shown that he was wrong, still less “badly wrong”. Accordingly, and for the reasons set out more fully by Peter Jackson LJ, with which I agree, I would dismiss the appeal.