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

At this point it is convenient to situate the appeal in the context of statute and authority.

Whether making an interim care order or a final care order, the court must be satisfied that the statutory conditions contained in Part IV of the Children Act 1989 are met.

Section 31(2)(a) and (b) provide that a court may only make a care order or supervision order if it is satisfied that the child concerned is suffering, or is likely to suffer, significant harm attributable to unreasonable parental care.

Section 31(9) defines ‘harm’ widely, including ‘ill-treatment or the impairment of health’.

Section 38 concerns interim care orders. Sub-section (2) provides that a court shall not make such an order unless it is satisfied that there are reasonable grounds for believing that the circumstances are as mentioned in section 31(2).

In the present case, there can be no doubt that the conditions for making an interim care order were met on the basis of the threshold as first pleaded. Further, as the judge found that there was a meaningful foundation for the additional allegation about Z’s death, it would have been open to the court, applying the lower threshold applicable at the interim stage, to find that there were reasonable grounds for believing that X was at risk of physical harm from her mother arising from the circumstances of Z’s death. But as the other evidence was ample to establish the interim threshold, that was unnecessary.

The appellants of course contend that the judge was obliged to go further before making a final order, and to investigate its allegation about Z’s death to the civil standard. They rely on the leading decisions in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563; [1996] 2 WLR 8 (‘Re H’) and, in particular, Re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35; [2009] 1 AC 11 (‘Re B’).

In Re H, the House of Lords held that 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: see 585F.

In a well-known passage, beginning at 589C and headed ‘A conclusion based on facts’, Lord Nicholls emphasised that, in marked contrast to the standard of proof required for interlocutory (interim) decisions, conclusions at trials must be based on proven 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.” 589C

“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.” 590A

“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.” 590B

He went on to make this important point at 591D:

“Thus far I have concentrated on explaining that a court’s conclusion that the threshold conditions are satisfied must have a factual base, and that an alleged but unproved fact, serious or trivial, is not a fact for this purpose. Nor is judicial suspicion, because that is no more than a judicial state of uncertainty about whether or not an event happened. I must now put this into perspective by noting, and emphasising, the width of the range of facts which may be relevant when the court is considering the threshold conditions. The range of facts which may properly be taken into account is infinite. Facts include the history of members of the family, the state of relationships within a family, proposed changes within the membership of a family, parental attitudes, and omissions which might not reasonably have been expected, just as much as actual physical assaults. They include threats, and abnormal behaviour by a child, and unsatisfactory parental responses to complaints or allegations. And facts, which are minor or even trivial if considered in isolation, when taken together may suffice to satisfy the court of the likelihood of future harm. The court will attach to all the relevant facts the appropriate weight when coming to an overall conclusion on the crucial issue.”

Re H was a single-issue case, in which the local authority had relied only on suspected but unproven sexual abuse. Lord Nicholls regarded that as an important feature: see 584A. He referred to another single-issue case (‘Re P’) at 588F:

“In re P. (A Minor) (Care: Evidence) [1994] 2 F.L.R. 751 is another instance where the same problem arose. There the only matter relied upon was the death of the child’s baby brother while in the care of the parents. Douglas Brown J. held that it was for the local authority to prove that the death was non-accidental and that, since they failed to do so, there was no factual basis for a finding of likelihood of harm to the surviving child.”

In the context of this appeal, Re B does no more than affirm what was said in Re H. The appellants rely on Lord Hoffmann’s summary:

“2.

If a legal rule requires a fact to be proved (a “fact in issue”), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are zero and one. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of zero is returned and the fact is treated as not having happened. If he does discharge it, a value of one is returned and the fact is treated as having happened.”

For the purposes of a case management decision of this kind, this well-known passage risks being reductive. Z’s death is not to be treated as not having happened, and there are a number of ‘facts’ surrounding it that cannot reasonably be doubted. Z suffered a head injury from which he died. There has been no account of an accident and, given his age, there is therefore a strong case that this was an inflicted injury of a shaking/impact character. Given the mother’s complete denial, the only ‘fact’ that could not be relied upon to satisfy the threshold for a final order in X’s case without a judicial finding is that the harm was attributable to her under section 31(2)(b).

Be that as it may, it was not suggested by anyone in the present case that the court could base its final assessment of risk on anything other than proven fact. At this stage in the proceedings, the judge was addressing the precedent question of whether, as a result of a legal rule or otherwise, the local authority’s allegation in respect of Z’s death should be investigated.

In a number of decisions, of which the most recent is Re T (Risk Assessment) [2025] EWCA Civ 93 (‘Re T’), this court has considered the correct approach to risk assessment, while emphasising that the assessment of actual or likely harm is not the same thing as an all-round welfare assessment. Accordingly, when addressing the welfare checklist factors of harm and parental ability in the present case, the court will ultimately have to address these questions:

It is in the context of these statutory provisions and authorities that the appeal arguments must be analysed.