Key Facts
- •H, a 2-year-10-month-old girl, remained in her parents' care despite Local Authority (LA) proceedings since birth.
- •Parents have learning disabilities/difficulties.
- •Allegations of inappropriate touching of H by her older brother F.
- •Conflicting witness testimonies and cognitive challenges of witnesses hampered fact-finding.
- •Court of Appeal previously remitted the case due to insufficient scrutiny of parental support.
- •A Care Order at home was in place with a Safety Plan.
- •Extensive family history of concerns regarding child protection and sexual abuse allegations.
- •Positive reports on H's development and well-being.
- •LA sought to remove H due to perceived unmanageable risks.
Legal Principles
Burden of proof on the LA; standard of proof is balance of probabilities; holistic weighing of evidence; consideration of witness vulnerabilities and memory.
General principles of family law fact-finding
Lucas direction: considering the reasons for potential lies in witness testimony.
R v Lucas [1981] QB 720
Removal of a child from parental care requires high standard of evidence and justification; rigorous analysis of all options.
Re DE (A child) [2014] EWFC 6; s.33(4) Children Act 1989; Article 8 ECHR
Need for clear and transparent process before removal, with parental involvement.
G v N County Council [2008] EWHC 975
Assessment of risk: intense focus on type, likelihood, and consequences; lies are significant only insofar as they affect child welfare.
Re F (Placement Order Proportionality) [2019] 1 FLR 779; Re Y (A Child) [2013] EWCA Civ 1337; Re A (A Child) [2015] EWFC 11
Tolerance of diverse parenting standards; state's positive obligation under Article 8 ECHR to provide support enabling children to remain with parents; s.17(1) Children Act 1989.
Re L (A Child) (Care Threshold Criteria) [2007] 1FLR 2050; Re D (A Child)(No.3) [2016] EWFC 1
Care orders at home should be rare; other means of support should be considered unless exceptional circumstances exist.
Re JW [2023] EWCA Civ 944
Risk assessment must be based on proven facts, not mere possibilities.
Re H (Parents with Learning Difficulties: Risk of Harm) [2023] EWCA Civ 59
Outcomes
Care Order at home remains the proportionate outcome.
Balancing of risks: risk to H of remaining at home vs. risk of long-term foster care; mother's efforts to be protective; need for continued support and safety plan; exceptional circumstances.
Finding of fact: Inappropriate touching of H by F was not proven to the balance of probabilities.
Witness credibility issues; lack of corroborating evidence.