Significant harm can only be established by reference to past facts that are proved on the balance of probabilities. Mere possibility is insufficient.

A Pakistani family lived with their three children and another girl who was not their own. She was taken into care amid fears of trafficking and she alleged abuse which led to the other children being taken into care. Held: the threshold in relation to the biological children had not been met. On appeal the decision was upheld. The way the parents had treated the girl was not evidence that they would treat their biological children in the same way.

Harm must be ‘significant enough to justify the intervention of the State and disturb the autonomy of the parents to bring up their children … in the way they choose’.

Local authorities produced evidence, including that of experts, that the children involved in these cases had suffered non-accidental injuries (leading to death in one case), and sought care orders (in respect of a sibling in the one case).

Courts must ensure that the evidence meets the requisite standard of proof. Local authority evidence pointing to the possibility of non-accidental injury is not conclusive, even in the absence of an alternative explanation, if the standard of proof is not met. Scientific evidence cannot be judged in isolation, but must be weighed against an assessment of the credibility of witnesses and the probability (or improbability) that the events took place.

A 16-year-old girl alleged that she had been sexually abused by her step-father. What was the standard of proof to be applied in considering the allegations for the purpose of a care order?

The standard of proof in relation to such abuse is the ordinary civil standard—it must be more probable than not. There is no sliding scale depending on the seriousness of the allegation and the consequences of the abuse.

The eldest of four sisters claimed her step-father had raped her. He was tried but acquitted. The girl went to live elsewhere but the other girls remained at home. The local authority applied for a care order in respect of them. This was dismissed as there was insufficient proof of the allegations.

A care order cannot be made without proof even if there is suspicion of abuse. There must be a real possibility of significant harm.

The local authority applied for a care order in respect of a baby whom it was alleged had suffered intra-cranial injuries caused by one or both parents. Held on the balance of probabilities the father had inflicted the injuries although the mother had failed to protect the child from harm.

The following principles were applied: the burden of proof—the balance of probability—lies with the local authority; cases must be based on evidence and all evidence must be considered in the context of other evidence; expert witnesses must keep to their specialist areas; evidence of parents/carers is important but must be assessed for credibility and reliability. Witnesses may lie for many reasons and they may not lie about everything.

Four children witnessed their father murder their mother. He was imprisoned. Three of the children went to live with another relative. The youngest child initially went to foster parents but later joined the rest of his family. The local authority applied for a care order in case the child needed to be removed at a later date. The application was refused as the threshold criteria had not been satisfied. The child was no longer suffering from harm.

The date on which the child is judged to be suffering or likely to suffer significant harm is the date when the proceedings are initiated.

A care order was granted in respect of a 14-year-old persistent truant. On appeal it was argued that truancy was not a ground for a care order. It was held that the threshold criteria were satisfied. If she had not truanted her intellectual and social development would be improved.

When deciding whether a child is suffering significant harm the child should be compared with a child of equal intellectual and social development who had gone to school, not with an average child who might or might not have gone to school.

A local authority applied for care orders in respect of two children who had sustained bruising and fractures for which the parents had no adequate explanation. Medical evidence was that the injuries were non-accidental. However, one medical witness stated that it was possible the mother had an epileptic fit during which she could have caused injury and not remembered it. The local authority withdrew the case, which was dismissed.

The local authority had not adequately discharged its burden of proof—the balance of probabilities. The level remains the same, regardless of the extent of the injuries.

A local authority obtained an emergency protection order in respect of three brothers. The social worker’s evidence to the court had been inaccurate. On appeal the judge gave guidance on the future use of such orders.

These orders are ‘draconian’ and should not be used if suitable alternatives are available. If made they should be for as short a time as necessary. Evidence given must be full and compelling and hearsay evidence must be identified. High regard must be given to the human rights of both parents and child.