Child Abuse in UK Law

The Strasbourg cases demonstrate that failure to remove a child from the parents can as readily give rise to a valid claim by the child as a decision to remove the child. It will always be in the parents' interests that the child should not be removed. Thus the child's interests are in potential conflict with the interests of the parents.

He may have found individual facts, such as inappropriate knowledge or behaviour, which constitute a high degree of concern about the child without being able to say on the test that they amount to actual abuse. He may have sufficient evidence of concern about the past care of the child to be satisfied that the child was in a potentially abusing situation without having sufficient evidence to be satisfied as to the extent of the abuse in the past or the identity of the abuser.

The best interests of a child and his parent normally march hand-in-hand. But when considering whether something does not feel 'quite right', a doctor must be able to act single-mindedly in the interests of the child. He ought not to have at the back of his mind an awareness that if his doubts about intentional injury or sexual abuse prove unfounded he may be exposed to claims by a distressed parent.

We understand that in many applications for care orders counsel are now submitting that the correct approach to the standard of proof is to treat the distinction between criminal and civil standards as 'largely illusory'. The standard of proof to be applied in Children Act cases is the balance of probabilities and the approach to these difficult cases was laid down by Lord Nicholls in his speech in re H.

Second, the task of the local authority and its servants in dealing with children at risk is extraordinarily delicate. Legislation requires the local authority to have regard not only to the physical well being of the child but also to the advantages of not disrupting the child's family environment: see, for example, section 17 of the 1989 Act.

In my judgment, the courts should proceed with great care before holding liable in negligence those who have been charged by Parliament with the task of protecting society from the wrongdoings of others.

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 Section 31 or a Section 8 order, must be to resolve that dispute.