Re P (A Minor) (Care Proceedings: Evidence)
| Jurisdiction | England & Wales |
| Judgment Date | 1995 |
| Date | 1995 |
| Year | 1995 |
| Court | Family Division |
DOUGLAS BROWN, J
Care proceedings – evidence – standard of proof.
Evidence – care proceedings – standard of proof.
The parents had two children. The elder was born in 1991 and the younger in 1993. The younger child died in September 1993. Early medical opinion was that the child's death was due to non-accidental injury. As a result, the local authority obtained an interim care order in respect of the elder child. Subsequent conflicting medical opinion was that the younger child's death was due to natural causes. The local authority applied for a care order in respect of the elder child. Counsel for the local authority submitted that in order to justify the making of a care order under s 31 of the Children Act 1989 it was necessary only to show a reasonable or a substantial possibility or a real risk of significant harm.
Held – dismissing the application: In order to establish that a child was likely to suffer significant harm, primary facts of past harm had to be established on the balance of probabilities. It was not enough to show that there was a real risk of significant harm; and the more serious the allegation the more convincing was the evidence needed to tip the balance in respect of it. On the facts in this case the local authority had to prove a high standard of probability that the younger child's death was due to non-accidental injury by one or other of the parents. The local authority had fallen very far short of doing so. Consequently, no care or supervision order would be made.
Note:This report is confined to that aspect of the case which is concerned with the issue of the standard of proof required in care proceedings to show that a child has suffered significant harm.
Statutory provisions referred to:Children Act 1989, ss 1 and 31.
Cases referred to in judgment:Cleveland County Council v A [1988] FCR 593.
Dunning v United Hospitals' Board of Governors [1973] 1 WLR 586; [1973] 2 All ER 454.
F (Minors), Re [1988] FCR 679.
H v H; K v K (Child Cases: Evidence) [1989] FCR 356; [1990] Fam 86; [1989] 3 WLR 933; [1989] 3 All ER 740.
M (A Minor) (Care Order: Threshold Conditions), Re[1994] 1 FCR 849; [1994] Fam 95; [1994] 2 WLR 200; [1994] 1 All ER 424 (CA); [nb revsd [1994] 2 FCR 871; [1994] 3 WLR 558; [1994] 3 All ER 298].
M (A Minor) (Care Proceedings: Appeal), Re[1995] 1 FCR 417.
Newham London Borough Council v AG[1992] 2 FCR 119.
Roger McCarthy for the local authority.
Rodger Hayward Smith, QC and Joanna Hall for the mother.
Bryce Somerville for the father.
Andrew McFarlane for the guardian ad litem.
MR JUSTICE DOUGLAS BROWN.In this matter the local authority apply for a care order under s 31 of the Children Act 1989 in respect of R, aged 2, his date of birth being 9 November 1991. He is the son of parents who are not married to each other.
The application is brought because of the circumstances arising out of the death of their younger son, D, who died on 8 September 1993 in hospital. Doctors attending the child formed the view that his death was due to non-accidental injury. Accordingly, the police and social services were involved, and after two weeks with grandparents R was accommodated under an interim care order with foster-parents from 17 September 1993.
One of the pathologists who performed the post-mortem on D formed the view that his death was likely to have been due to natural causes. That view has been supported by a consultant neuro-radiologist brought in to advise the parents.
The hearing of the local authority's application, lasting some 14 days, has been largely concerned with medical evidence as to the primary cause of D's death. There is no doubt that the baby had subdural bleeding, commonly associated with shaking or blunt trauma, when a scan was taken at 5.30 pm on the afternoon of 4 September 1993. There is equally no doubt that at the post-mortem the superior longitudinal sagittal sinus, otherwise called the sagittal sinus, was...
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