Fact-finding and future riskFact-finding:safeguarding cases, andFact-finding:future risk, andFact-finding(reproduced in full in appendix A)Fact-finding:future risk, andFact-finding
14.25‘Safeguarding’ cases are sometimes brought, not on the basis that an adult has suffered harm at the hands of another, but rather on the basis that they are likely to do so absent preventative action on the part of the court. In care proceedings, the approach that the court must take has been set down by the Supreme Court thus:
8…. [I]f 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… [H]owever, 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’, [In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563] 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.
1Re S-B (children) [2009] UKSC 17, [2010] 1 AC 678 at para 8 per Baroness Hale.14.26This approach was also adopted prior to the coming into force of the MCA 2005 in the exercise of the inherent jurisdiction of the High Court to protect vulnerable adults,
2Re MM; local authority X v MM (by the Official Solicitor) and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443 at para 119 per Munby J (as he then was). and it is suggested that it remains equally applicable for judges of the Court of Protection.