Case No. LN23C50022

harm; and that the harm, or likelihood of harm, is attributable to 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 …”It is well-established that “likely” does not mean more likely than not, but rather that there is a “real possibility” of the happening of significant harm. In Re H & Ors (minors) [1995] UKHL 16 at [68] - [69] Lord Nicholls stated:“What is in issue is the prospect, or risk, of the child suffering significant harm. When exposed to this risk a child may need protection just as much when the risk is considered to be less than fifty-fifty as when the risk is of a higher order. Conversely, so far as the parents are concerned, there is no particular magic in a threshold test based on a probability of significant harm as distinct from a real possibility. It is otherwise if there is no real possibility. It is eminently understandable that Parliament should provide that where there is no real possibility of significant harm, parental responsibility should remain solely with the parents. That makes sense as a threshold in the interests of the parents and the child in a way that a higher threshold, based on probability, would not.In my view, therefore, the context shows 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.” (original emphasis)6.Where the threshold is based on the risk of future harm (as it usually is) the exercise is thus predictive. The court has to make an assessment of the likelihood of future significant harm. It does not have to be as much as 50%, but has to be of a degree that reflects the idea of a “real possibility”. The probability or degree of likelihood is not fixed at, say, 40% but will vary in step with the seriousness of the significant harm. Thus in Re S-B (Children) [2009] UKSC 17 at [9] Baroness Hale stated:“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.”7.In order to make the prediction the court will invariably have to rely on past facts, as it is a truism the best prophet of the future is the past. The past facts will either be admitted or the court will have to make findings about them on the balance of probabilities.8.However, on an application for an ICO the court does not have to make findings about past facts because the law requires only that it should have “reasonable grounds for believing” that the predictive exercise would take the court across the threshold. A belief is the subjective requirement for knowledge. It is, ex hypothesi a partial, personal judgment. However, s.38(2) requires the belief of the court to be well-supported by “reasonable grounds”. What this means is that the court must be satisfied that the LA’s case on the threshold is a strong one. And, save in exceptional circumstances, it will form that judgment on the written evidence alone – see FPR 22.7(1), which provides that:“the general rule is that evidence at hearings other than the final hearing is to be by witness statement unless the court, any other rule, a practice direction or any other enactment requires otherwise.”9.Therefore the threshold requirement for an ICO is that the court must be satisfied that the LA has a strong case for proving that, unless there is an intervention, there is a real possibility that the child will suffer significant harm at the hands of his or her parent(s). In determining whether the LA’s case is strong the court will be careful not to make findings of fact on controversial issues. The object is to hold the ring, neutrally and impartially, pending a final hearing. It is important that nobody takes away from an ICO decision any kind of perceived sense of victory or of tactical advantage for the final hearing.10.Although the terms of s. 38(2) do not require the LA to prove more than the strong case described above, case law has imposed additional requirements where the purpose of the ICO is to effect an immediate removal of a newly born baby from its mother’s care. There is a line of authority culminating in Re C (A Child : Interim Separation) [2019] EWCA Civ 1998, where Peter Jackson LJ stated at [2]:“(1)An interim order is inevitably made at a stage when the evidence is incomplete. It should therefore only be made in order to regulate matters that cannot await the final hearing and it is not intended to place any party to the proceedings at an advantage or a disadvantage.(2)The removal of a child from a parent is an interference with their right to respect for family life under Art. 8. Removal at an interim stage is a particularly sharp interference, which is compounded in the case of a baby when removal will affect the formation and development of the parent-child bond.(3)