1. The finding that there is a real possibility that an individual is the perpetrator of serious sexual or physical abuse of a child, even a fatal injury, is not a finding that can be used to establish ‘threshold’ in later proceedings. Following a much criticised aspect of Baroness Hale’s leading judgment in In re S-B, and the Court of Appeal’s endorsement of Her Ladyship’s obiter comment as “principle” in In re F, this is the effect of the law. It begs the question: does the law provide appropriate protection for children from the risk of future harm? This article will examine the law and its implications. Readers may agree that the pendulum has swung too far in favour of protecting parents.
Likely to Suffer Significant Harm
2. Under section 31(2) of the Children Act 1989 (‘the Act’), risk of significant harm can be one of the triggers to meet ‘threshold’, the minimum precondition for state intervention compulsorily into family life. The ultimate decision about a child must be that which best serves his / her welfare, including a consideration of risk of suffering harm.
3. Likelihood of significant harm does not have to be proved on the balance of probabilities. It is an evaluation of the element of chance, still best defined by Lord Nicholls in the seminal authority of In re H as “a real possibility”, being one that cannot sensibly be ignored having regard to the nature and gravity of the feared harm.
4. There must be facts upon which to base that prediction. In the binary nature of the family justice system, facts in issue require proof on the balance of probabilities, no more and no less. In analysing how this assessment of risk fits with uncertain perpetrators, one must first understand what it is to be an uncertain perpetrator.
Uncertain Perpetrator Cases
5. When a child has been injured or abused, the court will attempt to identify a perpetrator of harm on the balance of probabilities, although it should not strain to do so. If it cannot, the court must identify the ‘pool of possible perpetrators’, asking whether there was a “likelihood or real possibility” that A or B or C was the perpetrator. Judges should refrain from expressing views on the comparative likelihood of perpetration within that pool.
6. If a child has been harmed by one of his two parents, that pool finding is used in assessing risk at the welfare stage, Lord Nicholls considered it to be “grotesque” to operate on any other basis. But how does that same pool finding interact with risk of harm posed to later children?
In re S-B
7. The case was a ‘whodunnit’ between mother and father. J had been injured and both parents were the possible perpetrators. W was born after the injuries and following his parents’ separation. After deciding the ratio of the case, Baroness Hale commented at paragraph  that the Judge had found threshold crossed in respect of W in an impermissible manner, namely by relying solely on the pool finding in respect of J.
In re F
8. In previous proceedings, father had been found to be one of two within a pool for injuring his child, J. Father had a new partner and new child, C. The Local Authority (‘LA’) brought proceedings in respect of C and sought to use the pool finding in respect of J to establish threshold. The LA failed and appealed, arguing that where one child had been the subject of NAI and the only issue was the uncertainty of perpetrator, there ought to be a relaxation of the principle that finding future likelihood of harm to the second child had to be based on proven facts on the balance of probabilities.
9. In light of the binding decision of In re S-B, Counsel for the LA invited the appellate court to permit the point to be argued before the Supreme Court. Permission was refused. Wilson LJ found the law correctly applied and cited  of In re S-B as an accurate statement of principle.
10. The result of these decisions is drastic. Consider the following example; Two parents are found to be the pool of perpetrators of NAI to a child. The parents each separate and form new relationships, each having a new child. Conjoined care proceedings follow in relation to the younger siblings. In single issue cases, both applications fail even though, on any view of it, one of the parents is the perpetrator of serious injury to the older half - sibling. How can this be correct in a system of child protection?
11. It is clear to anyone practising in the area, that the balancing act is a delicate one, weighing up the need for children to be protected from harm and the need for them and their families to be protected from the injustice of removing children from parents not responsible for causing harm. The Court of Appeal’s decision in In re F was justified, in part, on the basis that a requirement of a proven factual foundation is “a bulwark against the state’s removal of a child from his family”. That justification does not address the serious risk posed to the younger children and does not explain why the younger children are not afforded protection through public law orders. Does the consideration of a ‘pool finding’ mean that there would be state removal? It does not. Threshold may not be met, e.g. it would depend on the finding, its age or if the new relationship offers a safeguard. Consideration of the pool finding would ensure that a real possibility of previously seriously harming a child was actually weighed up.
12. The inappropriateness is evident in another way. The law is at a point where in existing proceedings of a child who has actually been injured, a pool finding can be used in assessing risk of harm. However, in respect of a baby, possibly more vulnerable than the older sibling, new proceedings cannot be issued on that basis alone and that new born baby would be living with the very same possible perpetrator.
13. In re F has raised another alarming anomaly. All three of the appellate judiciary reserved their position on whether or not, if threshold is crossed for other reason(s), a previous pool finding can be included in the welfare enquiry of later proceedings. If this were allowable, a previous ‘pool finding’ could not be used to assess risk of harm to bring public law proceedings but could be used, and be determinative, in deciding what order to make, i.e. it could be the basis upon which a child is not placed with a parent but could never trigger that very same child protection measure. Is this not arbitrary?
14. One has to ask whether this ‘principle’ is legally sound? It has been forcefully suggested that it was a departure from what hitherto had appeared to be settled law. In particular, one authority stands out: In re O and Another. One interpretation of this decision of their Lordship’s House supports threshold being crossed for an unharmed child where the risk to that child arises from a pool finding regarding another.
15. The impact of In re S-B and In re F is significant, preventing the possibility of state protection for some vulnerable children. Is this the inevitable price paid for respecting family autonomy? I would suggest that it is not and there ought to be a relaxing of principle in cases such as In re F. The pendulum should be set back on a proper course: child protection ought to be the overriding factor.
 In re S-B (Children) (Care Proceedings: Standard of Proof)  UKSC 17;  1 AC 678 at 
 In re F (Interim Care Order)  EWCA Civ 258 2 FLR 856
 section 1(1)of the Act and the welfare checklist under section 1(3) of the Act
 section 1 (3)(e) of the Act
In re H (Minors) (Sexual Abuse: Standard of Proof)  AC 563 at 585F; In re R (Care Order: Threshold Criteria)  EWCA Civ 942,  1 FLR 673 at  per Wilson LJ
 In re H (Minors) (Sexual Abuse: Standard of Proof)  AC 563 at 585F
 In re H at 590B-C
 In re B  UKHL 35,  1 AC 1 at  -  &  per Lord Hoffman, at ,  &  per Baroness Hale of Richmond
 In re SB at  per Baroness Hale, citing In re B at  per Lord Hoffman and  per Baroness Hale
 In re S-B at  per Baroness Hale, citing In re D (Care Proceedings: Preliminary Hearings)  2FLR 668
 In re SB at - per Baroness Hale, citing with approval the approach of Dame Butler - Sloss P in North Yorkshire CC v SA  2 FLR 849
 In re SB at  per Baroness Hale, citing with approval a particular comment of Thorpe LJ from the Court of Appeal decision in In re S-B: “Safer to leave it thus.”
 In re O and Another; In re B (Minors) (Care: Preliminary Hearing)  UKHL 18,  1 AC 523 at  per Lord Nicholls
 As described by Counsel in In re F at  per Wilson LJ
 In re F at  per Wilson LJ
 In re F at  per Wilson LJ
 Mary Hayes, “Why did the courts not protect this child? Re SB and Re F” Fam Law  169 at 171
 A position highlighted by Alison Grief, “Re SB: Oranges are not the only fruit” Fam Law  403 at 406.
 In re F at  per Wilson LJ and  per Rimer LJ and  per Pill LJ
 Fam Law  169
 In re O and Another; In re B (Minors) (Care: Preliminary Hearing) UKHL 18,  1 AC 523
 Fam Law  169 at 177