“an individual, who finds it hard to regulate her own emotions, and can be aggressive and verbally abusive when upset. [She] is seen to be unpredictable and erratic in her behaviour which includes her acting aggressively toward others.”
“99. Given these indications of potential, it was with considerable sadness that we observed her functioning and parenting capacity to decrease over the course of this assessment. The trigger for this was the result of the DNA test which showed that in all likelihood Mr A was not Z’s biological father. This appeared to represent a profound loss for her in terms of the emotional support which she believed would have been ongoing from Mr A and his family, as well as in terms of how she viewed herself and her situation. Also significant at this time for her is likely to be her unconscious fears about Z’s wellbeing, due to her little brother dying of cot death and her possible unsolved feelings about this.”
“I would describe her as strong willed feisty character when I first met her and during the initial visits and early stages, she was doing incredibly well and was acting more mature than her age. Unfortunately, after the result of the DNA test I could see she became less focused on Z and more focused on Mr A and her standards that she had set early on were not being achieved any more.”
“The Death of Z 1. On or around [date] December 2018, X’s maternal half-brother, Z (a boy, born [date] 7.2018), at the age of 5 months, sustained the following injuries: a. Extensive, bilateral, intraneural and perineural haemorrhage involving the cervical spine nerve roots and ganglia. b. Generalised cerebral and cerebellar swelling (with effacement of the basal cisterns and of cerebrospinal fluid of the foramen magnum). c. Retinal haemorrhages in the right eye and bilateral optic nerve haemorrhages. d. Encephalopathy causing primary respiratory arrest and collapse. e. Ischaemia in the brain and spinal cord as a result. 2. The cause of Z’s injuries (and each of them) was abusive head trauma. a. The trauma consisted of shaking and/or impact. b. The level of force required to cause the injuries was in excess of rough handling. c. Collapse will have occurred shortly after the episode of shaking and/or impact. 3. Z’s injuries (and each of them) were caused by M, in whose care he was at the time. 4. Z died at 20.51 on [date] December 2018. There was no evidence of any underlying natural disease that caused or contributed to his death. 5. Z died as a result of the injuries set out at paragraph 1. Accordingly, his death was caused by M. 6. X is at risk of suffering similar significant physical harm. The Mother’s Mental Health 7. M has a diagnosis of chronic complex post-traumatic stress disorder with psychotic features. 8. M declined intervention with the perinatal mental health team during her pregnancy and was not receiving support or treatment for her condition. 9. As a result of her condition, M is easily triggered and quick to arouse. This places X at risk of suffering significant physical and emotional harm. Cannabis 10. M has been an habitual user of cannabis for many years. 11. M was using cannabis around the time of Z’s death. 12. M misused cannabis during her pregnancy with X, testing positive for cannabis ante-natally on5th July 2024 and16th December 2024 . 13. X has been exposed to the risk of developmental harm in utero. She is at risk of emotional harm and neglect as a result of the impact of cannabis use on M’s capacity to parent and her emotional unavailability at times due to cannabis use.”
“In her report Dr Van Velsen noted that the mother had experienced chronic difficulties when she was younger from her own mother's drug use, her parents’ hostile relationship and poor home conditions. She also noted the mother's past history of significant substance misuse. She noted a pattern of a lack of transparency. Dr Van Velsen observed that in relation to the mother's personality there is a long and consistent description of the mother being emotionally labile, hostile, angry and non-collaborative. Although she expressed the view that the mother does not appear to have significant symptoms of borderline personality disorder, there were some underlying borderline personality difficulties. Although Dr Van Velsen expressed the view that there was some evidence that over time the mother had matured, which process can play a significant part in the improvement of personality difficulties, in her opinion there remained ongoing vulnerabilities in her situation and she was heavily reliant on her family for support.”
“32) … Of course, a ‘shaking’ event might be associated with a more malicious act conducted in bad faith which could include actions with a sadistic or similar motivation. Plainly that would fall far outside of the category of impulsive behaviour referenced above. However, it seems clear to me that no party in this case envisages the likely pursuit, let alone finding of such a nature. Given the passage of time and the available information (considered by both Police and Coroner) there really is scant basis for proceeding on the basis that the Court might reach a conclusion of such a character. There are very strong grounds for holding that any finding in this case would likely recognise the event as being one of temporary loss of control. 33) I recognise it is not for this Court to attempt a mini trial on the evidence available as one does not know what the totality of evidence would be should a fact finding be undertaken. I have proceeded above on the basis that a finding were made but within a likely context of a loss of control in the moment rather than a more sustained or malicious action. I do not consider this to amount to a quasi-mini trial given it appears to reflect entirely the issues of risk before me by those seeking a fact-finding and also gives regards to the real challenges in a detailed assessment beyond that which we already know of events which occurred such a time ago. It is most likely the evidence received will closely follow that which was laid down in subsequent years. 34) I have stepped back and reflected on this point with care. I consider it is likely to rest centrally within any conclusions I reach. I have taken the view that it is better to proceed on the assumption the LA will make out a case of the Mother being responsible for the matters alleged although I have caveated that in the manner set out above. It is only by doing this that I have been able to properly assess the impact the same will have on care planning and risk assessment. In doing so I have struggled to identify why the care planning and risk assessment will materially change as a result of this finding being made. I made this enquiry of the LA. Reference was made as to the potential for an adoptive outcome and I questioned as to how the LA’s case, which would not otherwise support adoption, could become one of adoption as a result of a finding as to events occurring almost certainly in mere seconds, many years ago when the Mother was herself a child. For my part I remain unable to conceive of circumstances that would permit this marked change of direction. Whilst the case put before the Court might be for placement I cannot see that this will have been set by any fact-finding. 35) I accept that for those working with the Mother in the future or those planning their ability to work with the Mother in the future, that an answer to questions of this sort are bound to be helpful. By definition such a conclusion will provide a Court based determination on balance of probability. But I do not understand why those working in such a setting would be unable to bring into their care and safety planning the prospect of a range of risk outcomes including that which would be subject to fact-finding. I consider, and agree with those acting for the Mother, that the risk planning is focused on what it is that causes risk (here impulsivity). The question of how that might play out should not be limited only to those outcomes which have been established to have previously arisen as a result. Any such risk planning would be short sighted in the extreme. Rather the risk planning would take a broader approach in its evaluation of the best way to manage risk. Put simply it is most unlikely any care planning would be structured simply to guard against a future risk of ‘shaking’ given any future risk would on balance likely arise in a different way. But risk planning would be able to have regard to risks including loss of control and conduct towards the child, including by ‘shaking’ without such a finding being made. 36) An obvious question was as to how the current assessment has been able to conclude (as it has) without this issue being determined. I consider the LA did not have an answer to this and I judge this is the case because there is no answer that sits comfortably with the argument of need for fact-finding. The LA did reference points in the assessment which note the fact the issue had not been determined but the assessment did not restrict its ability to provide a conclusion without the same being determined. 37) There is significant strength in the point that any assessment of current risk and the planning to mitigate the same is bound to be focused on and assisted by the existing evidence of current care informed by other available expert evidence, available network support and other present matters than it would be by the circumstances pertaining at the time of Z’s death. The Mother makes the point that as at17 April 2025 she was being told the professional view was that she was to return into the community supported by her family. Whilst positioning has changed due to perceived difficulties arising since, it is very hard to reconcile this planning with the continuing need for the Court to undertake fact-finding to inform safety planning and risk assessment. Viewed in this way there is a fundamental question as to the extent to which any fact-finding will in fact take the case forward.”
“Thus far I have concentrated on explaining that a court’s conclusion that the threshold conditions are satisfied must have a factual base, and that an alleged but unproved fact, serious or trivial, is not a fact for this purpose. Nor is judicial suspicion, because that is no more than a judicial state of uncertainty about whether or not an event happened. I must now put this into perspective by noting, and emphasising, the width of the range of facts which may be relevant when the court is considering the threshold conditions. The range of facts which may properly be taken into account is infinite. Facts include the history of members of the family, the state of relationships within a family, proposed changes within the membership of a family, parental attitudes, and omissions which might not reasonably have been expected, just as much as actual physical assaults. They include threats, and abnormal behaviour by a child, and unsatisfactory parental responses to complaints or allegations. And facts, which are minor or even trivial if considered in isolation, when taken together may suffice to satisfy the court of the likelihood of future harm. The court will attach to all the relevant facts the appropriate weight when coming to an overall conclusion on the crucial issue.”
“In re P. (A Minor) (Care: Evidence) [1994] 2 F.L.R. 751 is another instance where the same problem arose. There the only matter relied upon was the death of the child’s baby brother while in the care of the parents. Douglas Brown J. held that it was for the local authority to prove that the death was non-accidental and that, since they failed to do so, there was no factual basis for a finding of likelihood of harm to the surviving child.”
“2. If a legal rule requires a fact to be proved (a “fact in issue”), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are zero and one. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of zero is returned and the fact is treated as not having happened. If he does discharge it, a value of one is returned and the fact is treated as having happened.”
“27. … A finding which would or be likely to identify an existing and continuing risk of a material/significant nature and, which without fact-finding determination, could not be properly brought into the process of risk assessment, will in my assessment almost always require adjudication by way of fact-finding hearing. To fail to do so would mean any care planning would be structured without regard to the risk leaving the subject child at risk of harm. In such a case the care planning would be materially changed from what it would otherwise have been had a finding not been made… 28. The question for me in this analysis is as to whether the care planning for X would in fact or in all likelihood be materially different by reason of the Court finding that some 7 years previously and whilst herself a child the Mother acted in a manner which led to the death of Z?”
“JUDGE WILLANS: … I am not going to engage in a mini trial. I did say at the start that I might be talking in terms of what-ifs. But taking the local authority's case at its highest, I mean, we are all familiar with cases involving these sort of issues without this outcome, and we are all aware of the conclusions courts often come to which is not, necessarily, an intended or malicious action of temporary loss of control and the like. Evidentially, when one looks at something which happened a year ago, the court often reaches that conclusion, unless there is something that stands out, that demonstrates that there was more going on. If you are looking back now at eight years, the prospects shifting from that, at most, is going to be very challenging. I mean it would probably be realistic to take the view that the local authority's case at its highest would be, in a moment of something such as frustration or temporary loss of control, there was a shake. That is probably, it seems likely, as far as one might go, taking at its highest. MR ARCHER: I would refine that slightly, my Lord, respectfully and say in a moment of madness, given the vulnerabilities which the mother had and which she continues to have.”
“JUDGE WILLANS: … That is the nub of it and you say, well, that is impulse, this is impulse and we need to follow that. It is not as simple as that, but you are saying there are impulsive behaviours now, that might be an impulsive response and, therefore, we need to be able to work through the risks that may be associated with further impulsive behaviours if X remains in her mum's care. MR ARCHER: Yes. JUDGE WILLANS: Are you not able to care plan with that in mind, in terms of risk assessments? In terms of, you know, safety plans and structures around the child. Is that not possible? MR ARCHER: My Lord, my submission on that would be the gravity of the risk is relevant to the qualities of a safety plan, the structure of a safety plan. If the mother's impulsive behaviour, as a result of her mental health difficulties, as a result of cannabis misuse, the local authority would aver, behaves impulsively, it is relevant to know whether, in a moment of impulsive behaviour, the sort of harm that is inflicted, is as serious as occasioned to Z. That is the nexus that I suggest there is between these two events. The relevance is there, because of the fact that these are underlying, innate difficulties that the mother has, which are a factor in what happened in December 2018, we say, and what might happen in the future.”
“2a. M presents as highly triggered and quick to anger, without any coping mechanisms in place, placing X at risk of suffering significant harm.”
“6. X is at risk of suffering similar significant physical harm.”
“The Mother’s Mental Health 7. M has a diagnosis of chronic complex post-traumatic stress disorder with psychotic features. 8. M declined intervention with the perinatal mental health team during her pregnancy and was not receiving support or treatment for her condition. 9. As a result of her condition, M is easily triggered and quick to arouse. This places X at risk of suffering significant physical and emotional harm.”
“… risk planning would be able to have regard to risks including loss of control and conduct towards the child, including by ‘shaking’…”
“A court may only make a care or supervision order if it is satisfied - (a) that the child concerned is suffering, or is likely to suffer, significant harm; and (b) that the harm, or likelihood of harm, is attributable to - (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or (ii) the child's being beyond parental control.”
“in section 31(2)(a) likely is being used in the sense of a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case.”
“It is, of course, open to a court to conclude there is a real possibility that the child will suffer harm in the future although harm in the past has not been established. There will be cases where, although the alleged maltreatment itself is not proved, the evidence does establish a combination of profoundly worrying features affecting the care of the child within the family. In such cases it would be open to a court in appropriate circumstances to find that, although not satisfied the child is yet suffering significant harm, on the basis of such facts as are proved there is a likelihood that he will do so in the future.”
“15. The first limb of condition (a), the 'significant harm' condition, concerns an existing state of fact: the child 'is suffering' significant harm. In the nature of things this calls for proof, to the requisite standard, of the facts said to constitute significant harm. An unproved allegation that the child has been sexually abused or subjected to non-accidental injuries will not suffice. 16. The second limb of condition (a) requires the court to evaluate the chance that an event will occur in the future: the child 'is likely to suffer' significant harm. In re H (minors) (Sexual abuse: standard of proof)[1996] AC 563 the House considered the matters which, in this context, the court may take into account in assessing whether the child is likely to suffer significant harm. In the context of section 31(2)(a) 'likely' does not mean more probable than not. It means a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case. This is a comparatively low level of risk. By a majority the House held that, for the purpose of satisfying this threshold level of risk in cases (such as alleged sexual abuse) in which there is a dispute over whether the child has indeed suffered past harm, the court may have regard only to harm proved to the requisite standard to have happened. Otherwise the purpose for which the threshold criteria were prescribed by Parliament could be defeated in a case where the only evidence that the child was likely to suffer harm in the future was an unproved allegation that he had suffered harm in the past. It would be extraordinary if, in respect of the self-same non-proven allegations, the self-same insufficient evidence could nonetheless be regarded as a sufficient factual basis for satisfying the court there is a real possibility of harm in the future: see[1996] AC 563 , 591. 17. This would not be an acceptable interpretation of section 31(2). This suggests that, given the purpose of the threshold criteria, both limbs of the 'significant harm' condition call for proof of facts. Like the inference that the child is already suffering harm, the inference that the child is likely to suffer significant harm must be founded on one or more proved facts, as distinct from unproved allegations. Therein lies the protection Parliament intends the threshold criteria shall provide against arbitrary intervention by public authorities. This is the principal rationale for what might otherwise seem an unduly rigid approach.”
“The reasons given by Lord Nicholls for adopting the approach which he did in Re H remain thoroughly convincing. The threshold is there to protect both the children and their parents from unjustified intervention in their lives. It would provide no protection at all if it could be established on the basis of unsubstantiated suspicions: that is, where a judge cannot say that there is no real possibility that abuse took place, so concludes that there is a real possibility that it did. In other words, the alleged perpetrator would have to prove that it did not. Mr Cobb accepts that it must be proved on the balance of probabilities that a child "is suffering" significant harm. But nevertheless he argues that those same allegations, which could not be proved for that purpose, could be the basis of a finding of likelihood of future harm. If that were so, there would have been no need for the first limb of section 31(2)(a) at all. Parliament must be presumed to have inserted it for a purpose.”
“8. The leading case on the interpretation of these conditions is the decision of the House of Lords in Re H (Minors) (Sexual Abuse: Standard of Proof)[1996] AC 563 . Three propositions were established which have not been questioned since. First, it is not enough that the court suspects that a child may have suffered significant harm or that there was a real possibility that he did. If the case is based on actual harm, the court must be satisfied on the balance of probabilities that the child was actually harmed. Second, if the case is based on the likelihood of future harm, the court must be satisfied on the balance of probabilities that the facts upon which that prediction was based did actually happen. It is not enough that they may have done so or that there was a real possibility that they did. Third, however, if the case is based on the likelihood of future harm, the court does not have to be satisfied that such harm is more likely than not to happen. It is enough that there is "a real possibility, a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm in the particular case" (per Lord Nicholls of Birkenhead, at p 585F). 9. Thus the law has drawn a clear distinction between probability as it applies to past facts and probability as it applies to future predictions. Past facts must be proved to have happened on the balance of probabilities, that is, that it is more likely than not that they did happen. Predictions about future facts need only be based upon a degree of likelihood that they will happen which is sufficient to justify preventive action. This will depend upon the nature and gravity of the harm: a lesser degree of likelihood that the child will be killed will justify immediate preventive action than the degree of likelihood that the child will not be sent to school.”
“Section 1(3) requires a court, when considering whether, among other things, to make an order under s 31, to have regard in particular to a number of matters. The subsection then sets out those matters in the welfare checklist. Item (e) of this list is: 'any harm which [the child] has suffered or is at risk of suffering'. If there is a dispute as to whether the child has suffered or is at risk of suffering harm the task of the judge, when considering whether to make any order whether it be a care or supervision order under s 31 or a s 8 order, must be to resolve that dispute. Unless this is done, it will remain in doubt whether or not the child has suffered harm or is at risk of suffering harm and thus it will remain in doubt whether or not there exist factors which Parliament expressly considered to be of particular importance to be taken into account. The question is how such a dispute is to be resolved. To our minds there can be only one answer to this question, namely the same answer as that given by the majority in Re H and R (above). The court must reach a conclusion based on facts, not on suspicion or mere doubts. If, as in the present case, the court concludes that the evidence is insufficient to prove sexual abuse in the past, and if the fact of sexual abuse in the past is the only basis for asserting a risk of sexual abuse in the future, then it follows that there is nothing (except suspicion or mere doubts) to show a risk of future sexual abuse. Mr Newton submitted that this is not so. His point was that if there is a real possibility of harm in the past, then it must follow (if nothing is done) that there is a risk of harm in the future. To our minds, however, this proposition contains a non sequitur. The fact that there might have been harm in the past does not establish the risk of harm in the future. The very highest it can be put is that what might possibly have happened in the past means that there may possibly be a risk of the same thing happening in the future. Section 1(3)(e), however, does not deal with what might possibly have happened or what future risk there may possibly be. It speaks in terms of what has happened or what is at risk of happening. Thus what the court must do (when the matter is in issue) is to decide whether the evidence establishes harm or the risk of harm.”
“If Parliament had intended that a mere suspicion that a child had suffered harm could form the basis for making a final order, it would have used the same terminology of "reasonable grounds to suspect" or "reasonable grounds to believe" as it uses elsewhere in the Act. Instead, as Butler-Sloss LJ pointed out in In re M and R, it speaks of what the child is suffering or is likely to suffer.”
“to acknowledge that a finding of impulsivity by its nature requires risk assessment when considering care of a young child but that the format of the risk assessment and the resultant care planning does not require the clear definition of the outcome or outcomes that might follow from the same.”
“I do not understand why those working in such a setting would be unable to bring into their care and safety planning the prospect of a range of risk outcomes including that which would be subject to fact-finding. I consider, and agree with those acting for the Mother, that the risk planning is focused on what it is that causes risk (here impulsivity). The question of how that might play out should not be limited only to those outcomes which have been established to have previously arisen as a result. Any such risk planning would be short sighted in the extreme. Rather the risk planning would take a broader approach in its evaluation of the best way to manage risk. Put simply it is most unlikely any care planning would be structured simply to guard against a future risk of ‘shaking’ given any future risk would on balance likely arise in a different way. But risk planning would be able to have regard to risks including loss of control and conduct towards the child, including by ‘shaking’ without such a finding being made.”
“I simply do not accept that in principle the degree of risk to [X] is greater if this finding is made. As I have explained this is to confuse risk with outcome. I also do not agree the nature of the risk is different if this finding is made. Rather this is a risk which falls into a broad category of risks which sit on a spectrum of potential flowing from a finding of impulsive behaviour. The real question is not what may have happened on one occasion and then planning to prevent that but asking what in principle could happen and creating a plan to guard against a range of risks.”
“Many of the factors identified in Oxfordshire overlap with each other and the weight to be given to them will vary from case to case. Clearly, the necessity or otherwise of the investigation will always be a key issue, particularly in current circumstances. Every fact-finding hearing must produce something of importance for the welfare decision.”
“I questioned as to how the LA’s case, which would not otherwise support adoption, could become one of adoption as a result of a finding as to events occurring almost certainly in mere seconds many years ago when the mother was herself a child.” d) The local authority had advanced a basis for threshold which included that:- “M has a diagnosis of chronic, complex PTSD with psychotic features placing X at risk of suffering significant harm in her mother’s care. M presents as highly triggered and quick to anger, without any coping mechanisms in place, placing X at risk of suffering significant harm.”
“These are not always easy decisions and the factors typically do not all point the same way. Most decisions will have their downsides. The reasoned case management choice of a judge who approaches the law correctly and takes all relevant factors into account will be upheld on appeal unless it has been shown that something has gone badly wrong with the balancing exercise.”