Children and Families Bill

Lord Judge Excerpts

Tuesday 17th December 2013 Lords Chamber

[Lord Judge (CB)]

My Lords, to add to a maelstrom of lawyers is not a particularly bright idea at this time in the afternoon, but I declare an interest as I was a member of the Court of Appeal that decided, when we decided it, the case of J. The case was brought to us so that the threshold test could be clarified: that was the only purpose of it. It was brought by a local authority, deliberately focusing on the single fact of possible perpetration and omitting any other consideration, so that the issue could go to the Supreme Court and that five previous decisions of the House of Lords could be analysed once more. We followed the previous decisions of the House of Lords and immediately gave leave for appeal to the Supreme Court—a very unusual step for the Court of Appeal to take—because it had to be addressed in that court.

Once it is established that an individual living in a household in which a child or children have been killed or seriously injured was one of the possible perpetrators of the injuries, but the evidence is not sufficiently clear for the court to identify who is actually responsible, where does that leave us? It leaves us with the possibility that the individual was, indeed, responsible for the death or those injuries or some of them. That seems to me to be a stark fact, but there is a further consideration. Often the ill treatment has been repeated; these awful occasions are not, generally speaking, a one-off. Generally, what you have is a series of repeated assaults on the child that culminate in an attack in which the child sustains fatal injuries. J was such a case. What that little baby had gone through in three weeks is beyond description.

Therefore, in many of these cases, although not all of them, the person who has not actually caused any injury has undoubtedly been aware of the fact that the child has been suffering. It is not just that the child cries—we all know that babies whinge and cry, some more than others—but this was a child with evidence on its little body of injury. Indeed, although these cases are largely confined to the family court, one needs to stand back and wonder why on earth criminal prosecutions under the Domestic Violence, Crime and Victims Act are not undertaken—not simply to establish who is guilty of the murder or manslaughter, but, where the evidence is uncertain, to demonstrate that both, on any view, are culpable in the sense that they have allowed the child to be bullied and abused in the way that has culminated in its death. If there had been a criminal prosecution and a conviction, it would not have occurred to anyone to say, “Oh well, that conviction is irrelevant to the threshold test that the family court has to ask in relation to another case”.

If there are combinations of events like those that have happened, it seems to me that they raise issues of great relevance to the threshold test in family proceedings. It is not a question of removing a child from a family on the basis of suspicion alone; it is that the threshold test should be allowed to be tested by reference to all the relevant evidence. If all the relevant evidence reveals that the threshold test should be passed, then you move on to care proceedings. For me, the idea that we should exclude from the threshold test possible relevant material is not how justice is done.

[Lord Hope of Craighead]

My Lords, I hope that I may be forgiven for adding one more lawyer’s speech to those which have already been given, and particularly that the noble Baroness, Lady Howarth, will forgive me for doing this. My reason for wanting to speak is that I presided over the case of In re J in the Supreme Court. I think that the noble and learned Lord, Lord Judge, expressed great concern that the issue was being brought before the courts on a hypothesis; I think I am right in saying that he said that it is not the business of the court to judge hypothetical cases. We took the view that we should decide the case on the material that we were given, but it is right to stress, as the noble and learned Baroness, Lady Hale, stressed, that the situation we were presented with was highly artificial in order to test one particular point: whether the “sole fact”, as it is put in the noble and learned Lord’s amendment, was enough to cross the threshold.

I do not want to add anything to the clear description which the noble and learned Lord, Lord Walker of Gestingthorpe, gave us as to what the case of In re J was all about, but I should like to say briefly why I join with the noble and learned Baroness in resisting the amendment. In my case, it is particularly on account of its wording, given the use of “sole fact” and the reference to “real possibility”. My objections can be summarised on three simple grounds: first, the amendment as it stands is wrong in principle; secondly, when you look at the structure of the statute it is unnecessary; and, thirdly, from the point of view of family life in circumstances that are quite likely to occur, it could indeed be damaging.

First, on the principle, I respectfully suggest that the golden rule is that a prediction of future harm has to be based on facts which have been proved on a balance of probabilities. It is only then that the state would be justified in removing a child from the family; in our democratic society, it is not enough that there should be suspicion. It has to be based on proof, so the state should be required to demonstrate that it has real and current concerns about the child’s safety before the child is taken into care. I appreciate that I am moving through all sorts of stages in making that proposition, but that is the background to the point I wish to make. I stress that if we look at the wording of Section 31(2) of the Children Act, which we do not have on the paper before us, when it states that a child may be taken into care only if,

“the child … is suffering, or is likely to suffer, significant harm”,

it is using the language of proof, not of possibility. That was a point made by Lord Nicholls some 18 years ago in the case of In re H.

As I think the noble and learned Lord, Lord Brown of Eaton-under-Heywood, accepted, the amendment has the effect of lowering the threshold to some degree. It assumes that the state cannot prove that the carer in question was the perpetrator—that all it can prove is that she was a possible perpetrator—and that that bald fact is all that can be done. Even allowing for the point at the end of the proposed amendment, that this is a “real possibility” and something that cannot sensibly be ignored, I suggest that we are still below the threshold which Section 31(2) sets.

Secondly, on necessity, it is important to appreciate that the noble and learned Baroness, Lady Hale, was not saying that the problem which the amendment is addressing is rare in itself. She was not saying, I think, that it is rare for two people in the situation in which the carer in this case was placed to blame each other, so that the court is unable to decide between the two. What she was saying was extremely rare was the situation which the court was being presented with: that this was the sole fact. As she put it in her judgment, the issue hardly ever comes before the court at the threshold stage packaged in that way. The point which she was making, and which one can see by studying the structure of the Children Act, is that in Part V, and in particular in Section 47, powers are available to the local authority to make inquiries and, if it is thwarted, to take further steps which may ultimately lead to an emergency protection order being applied for and so on, as the noble and learned Baroness, Lady Butler-Sloss, explained to us.

In the case of In re J, there was a difference of view as to whether the sole fact which has been referred to was relevant at all. In my judgment, I used the words “relevant” and “sufficient” to try to explain the difference of view. Lord Wilson and Lord Sumption said that it was not relevant at all; the rest of us said that the fact of the possible perpetration was relevant and could not be ignored, but it is not enough and is not sufficient to cross the threshold and therefore something more must be found.

The problem with the amendment is that it has absolutely no context attached to it. The sole possibilities are stated in the amendment in the starkest possible terms. However, as soon as you start to examine a particular case—as the noble and learned Lord, Lord Judge, did when he talked about the number of injuries inflicted in that tragic period of three weeks—you are adding something that is not in the amendment. Indeed, the noble and learned Lord, Lord Lloyd, said that the amendment is dealing with the situation of two possible perpetrators only, but it does not actually say that. It just says “a possible perpetrator”. As soon as you begin to make inquiries and search around, you are going to add things in which begin to build up a context which the social worker will be able to put together before the threshold stage has to be crossed when the case is brought into court. My objection to the amendment is really that: that it does not give you any context at all. Surely, that is taking the matter too far.

The third and final point is the risk of damage. Let us contemplate a situation which is not far removed from the situation of In re J, where the woman—and let us take the woman because it was the woman in In re J—is living in an abusive relationship. That was indeed the case here because she had separated from the previous partner because he was violent to her repeatedly and eventually she left him. All sorts of reasons can be imagined why she did not blame him. She may have been under pressure from him. She decides to create a new life for herself, as indeed she was doing in In re J, making a relationship with somebody who is absolutely blameless, who has children of his own already. There she is, now in family with him with a further child of their own.

My concern is that, if the amendment is passed in its stark form, it holds a threat over that relationship from the very beginning. There must be a question about, “Is it wise for me to enter into this relationship? Am I always going to be at risk of being before the court for a full threshold inquiry, simply because of what happened in the past?” The amendment pays no regard to the length of time that may have elapsed between the incident when the perpetration occurred and the moment at which the inquiry is being initiated. Without elaborating further, it is the starkness of the amendment, which lowers the threshold, that is a cause for real concern.

I wrote to the noble and learned Lord, Lord Lloyd, with a suggestion about how one might approach the problem—because I do appreciate that there is a problem—by suggesting that, without using the word “sole”, one might be able to reassure social workers that this factor is relevant, which I believe firmly would be the case. If an amendment were to be framed which made that point and put it beyond doubt, then I would be entirely happy and I hope very much that it would reassure social workers. However, the amendment as phrased goes far too far and is too stark and for that reason I support the noble and learned Baroness, Lady Butler-Sloss, in resisting the amendment.