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Rt Hon The Baroness Hale of Richmond DBE PC LLD FBA Keynote Address


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Rt Hon The Baroness Hale of Richmond DBE PC LLD FBA
Lady Hale is the United Kingdom's most senior woman judge. She has been a member of the highest court in the land since 2004 - first as a ‘Law Lord' in the House of Lords, and then (since 2009) as a Justice of the newly-created Supreme Court. She was appointed Deputy President in 2013.

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Rt Hon The Baroness Hale of Richmond DBE PC LLD FBA Keynote Address

  1. 1. BASPCAN 2015 WHAT DO WE MEAN BY UNACCEPTABLE RISK? Brenda Hale, Supreme Court of the United Kingdom It is a rare treat for me to be back among the child protection experts. I have spent a large part of my profession”nal life concerned, in one way or another, with child protection, but children’s cases of any sort form only a tiny proportion of the cases which come to the Supreme Court of the United Kingdom (and its predecessor, the Appellate Committee of the House of Lords). Even so, the statutory criteria for compulsory state intervention to protect children from harm have been considered at the highest level in a surprisingly large number of cases since the Children Act 1989 came into force. One way and another, these have all been concerned with how we define and prove an unacceptable risk of harm.1 Child protection proceedings have a dual function. On the one hand, they are there to protect children from harm. But if we were a totalitarian state we would not need courts to do this. We could simply empower social workers to do so. So care proceedings are also there to protect children and their families from the over- intrusive power of the state. The freedom of families to choose their own life-styles 1 The Review of Child Care Law, DHSS, 1985, para 2.13, stated that “only where their children are put at unacceptable risk should it be possible compulsorily to intervene”. 1
  2. 2. and to bring their children up as they please is a crucial attribute of a free society. The first thing that totalitarian states want to do is to wrest the control of children away from the subversive eccentricities of their families. The principal United Nations human rights instruments all recognise the family as “the natural and fundamental group unit of society” which “is entitled to protection by society and the state”.2 Closer to home, article 8.1 of the European Convention on Human Rights of 1950 provides that “Everyone has the right to respect for his private and family life, his home and his correspondence”. This may originally have been conceived as a privacy rather than a family right3 but it very soon developed into a right which protects the family, both parents and children, from unjustified interference by the state. The same theme is carried through in the United Nations Convention on the Rights of the Child of 1989, which provides that the primary responsibility for bringing up children lies with their parents and that a child should not be separated from his parents against their will except where this is “necessary for the best interests of the child”.4 But it is one thing to understand the importance of this principle and quite another thing to translate it into workable legal rules and agency processes. I am going to 2 Universal Declaration of Human Rights 1948, art 16.3; International Covenant on Civil and Political Rights 1966, art 23.1; International Covenant on Social and Economic Rights, art 10.1. 3 Akin to that protected by article 12 of the UDHR and article 17 of the ICCPR. 4 Arts 18.1 and 9.1 respectively. 2
  3. 3. concentrate on the legal rules rather than the processes. We all know that there have been catastrophic failures in child protection processes which have come to public attention over the years. Daniel Pelka, for example, was starved, assaulted, neglected and abused over at least six months before he died from a severe head injury in March 2012. His mother and her partner were convicted of his murder and each ordered to serve a minimum of 30 years for their “incomprehensible brutality”. That this was allowed to happen was not a problem of definition and drawing boundaries. No-one doubts that it is wrong to starve and beat a child to death and that the authorities had the right and the duty to prevent it. It was a problem of not “thinking the unthinkable” and putting two and two together.5 Contrast that with a case which did come to court, and indeed occupied many days of court time, the case of a little girl whom I called Amelia.6 Amelia’s mother had an extraordinary history. She was probably abused in early childhood. She was certainly abused for many years by her violent bully of a step-father, who began a sexual relationship with her when she was 15, and exercised a malign controlling influence over her from then on. Eventually they had a daughter together, whom I called Teresa. The mother had criminal convictions for fraud, perverting the course of justice and perjury, possibly instigated by her step-father. She had a long and 5 Coventry Safeguarding Children Board, Serious Case Review Re Daniel Pelka, Overview Report, September 2013. 6 In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911. 3
  4. 4. complicated medical history involving frequent complaints to a large number of different hospitals and doctors for which a physical explanation could not always be found. It was agreed that she suffered from somatisation disorder, but one doctor took the view that she also suffered from a degree of factitious disorder (as Munchausen’s syndrome is now known). There was no suggestion at all that she had presented Teresa for inappropriate medical attention or indeed that there was anything wrong with her care of Teresa. Eventually she escaped from the home she had with the step-father, her half- brothers and Teresa. With the help of the police she relocated to London. She formed a new relationship with Amelia’s father, who had a serious criminal record, and became pregnant with Amelia. The midwifery service referred her to Barnet social services because of their concerns about her and about Teresa. Her solicitor sent them the minutes of a case conference about Teresa. Barnet decided that she should not be allowed to take Amelia home from hospital. Over the next two years the parents showed 100% commitment to contact, established a warm and loving relationship with their daughter, who was attached to them and knew they were her mum and dad. But they did not have a happy relationship with the local authority, and there were numerous examples of what the judge called the mother’s “quite exceptional proneness to lie”. 4
  5. 5. I have, of course, told the story in my own way, because we all do. Another judge would place a lot more emphasis on the parents’ fractious relationship with the local authority. My purpose is to ask whether that history proves that Amelia was at such an unacceptable risk of suffering harm in the future that she should be removed from her parents soon after birth and placed for a closed adoption. The law in England and Wales requires that a “threshold” is crossed before a court can order the removal of a child from her family. This does not talk about “unacceptable risk” or about “abuse and neglect”. One of the problems, it seems to me, is that those concepts, of risk, abuse and neglect, are what dominate professional thinking, whereas we lawyers have to operate within what the law actually says. The Children Act 1989 requires (1) that the child either is suffering or is likely to suffer significant harm; and (2) that that harm is attributable to the care given or likely to be given to the child not being what it would be reasonable to expect a parent to give to him or to the child being beyond control.7 Only if the court is satisfied of this can it then go on to decide what order will be best for the child. But this is easier said than done. 7 Children Act 1989, s 31(2). 5
  6. 6. First, of course, there is the problem of finding the facts. Loose talk about “risk” can easily lead people to act on the basis of what may have happened rather than on the basis of what has happened. This is not surprising, as all of us know how difficult it is to work out where the truth lies in any particular case. Even the most well-meaning people are imperfect historians, putting their own interpretation upon their inevitably partial recollections of past events. And of course many witnesses are not at all well-meaning. The court has to fall back, not on truth, but on proof. This was explained by Lord Hoffmann, in a case called In re B, like this8 : “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 act either happened or it did not.” As one of our Family Division judges has commented, “most non-lawyers would struggle with Lord Hoffmann’s approach (and we should recognise this)”. But we still have to do it (and most of us think it right). The second problem is the standard of proof. For many years, child protection in England and Wales was bedevilled by the mistaken view9 that the more serious an 8 In Re B (Children) (Sexual Abuse: Standard of Proof) [2008] UKHL 35, [2009] 1 AC 11, para 2. 9 A misunderstanding of what Lord Nicholls had said in In Re H (minors) (sexual abuse: standard of proof) [1996] AC 563. 6
  7. 7. allegation, or the more serious the consequences of finding it proved, the higher the standard of proof had to be. In English law, we have two standards of proof: in civil cases, there is the “balance of probabilities” standard – is it more likely than not that it happened? In criminal cases, there is the “beyond reasonable doubt” standard – am I sure that it happened? These are easy to understand, but I find it very difficult to understand something in between them. How do I decide that there is, say, a 75% likelihood that it happened or that the allegation only needs a 70% likelihood? In In re B we held that there is only one standard – the simple balance of probabilities – when finding the facts. The justification for the difference between care and criminal proceedings is the equal seriousness for the child of getting it wrong in either direction – finding that it did happen when it did not or finding that it did not happen when it did. But when deciding whether something is more likely than not to have happened, you do have to take the inherent probabilities into account. Some things are so unlikely that you may need better evidence to satisfy you that they happened than you would for more common occurrences. But when it is quite clear that a child has suffered serious injury at the hands of one or other of his parents, it makes no sense to say that this is so unlikely that cogent evidence is required to prove which of them did it. 7
  8. 8. The next problem is how you prove that future harm is likely. In a case called In re H,10 members of the House of Lords disagreed about whether predictions of future harm had to be based on firm findings of past or present fact. The majority held that suspicion was not enough. Just as a finding of present harm had to be based on facts, so had a finding of future harm. Lord Nicholls pointed out that if the mere suspicion of past harm was enough to prove the likelihood of future harm there was no real need to include the child’s present suffering in the criteria at all – you could just show that it was possible that something had happened in the past from which a risk of future harm could be inferred. There was a difference between the criteria for preliminary orders, which are based on “reasonable grounds to suspect” or “to believe” and those for final orders, which have to be proved to the court’s satisfaction. The minority took a different view. Lord Browne-Wilkinson gave a vivid illustration of why “the combined effect of a number of factors which suggest that a state of affairs, though not proved to exist, may well exist is the normal basis for the assessment of future risk”. Five unconfirmed sightings of what might be enemy bombers were enough to conclude that there was a risk, a real possibility, of an enemy air-raid. Similarly, Lord Lloyd: “The finding of future risk must, of course, be based on evidence. . . . But if there is such evidence, then a finding may be 10 In Re H (minors) (sexual abuse: standard of proof) [1996] AC 563. 8
  9. 9. made, even though the same evidence is insufficient to support a finding of past fact”. As Lord Hoffmann commented in In re B (para 3): “The majority of the House rejected the analogy with facts which merely form part of the material from which a fact in issue may be inferred, which need not each be proved to have happened. There is of course no conceptual reason for rejecting this analogy, which in the context of some predictions (such as Lord Browne-Wilkinson’s example of air raid warnings) might be prudent and appropriate. But the House decided that it was inappropriate for [this purpose].” The House of Lords and Supreme Court have since been unanimous in adhering to the majority view. I wonder whether one’s approach is coloured by whether one uses the word “risk”, as both the dissenters did, or the word “likely”, which is in the statute? Lord Lloyd went so far as to say that “Parliament has asked a simple question. Is the court satisfied that there is a serious risk of significant harm in the future?” But that is not in fact what Parliament said. This leads on to the next question. Does this same approach apply where the disputed fact from which the likelihood of future harm is to be inferred is not whether a child has been harmed in the past, but whether or not a particular person 9
  10. 10. was responsible? It is always tempting, for any judge, to find only the facts that you need to find in order to decide the case and refrain from going further. In care proceedings it is often enough to decide whether a child’s injuries are non- accidental and whether the parents were responsible. It is not always necessary to decide who did it. But it may well make a difference to the result in another case about another child, especially if the family circumstances have changed. This problem came before the Supreme Court in a case called In re S-B11 . The main issue was that the judge had applied the wrong standard of proof when deciding that she could not rule out the mother as perpetrator, while later confessing that she thought it 60% likely that it was the father. So we sent it back for the issue to be decided again on the simple balance of probabilities (although I don’t think the eventual result was any different). The Court did say that if the judge found it difficult to decide, even on the balance of probabilities, who had done it, there was no obligation to do so. But we also said12 that if an individual perpetrator can properly be identified then it is the judge’s duty to do so. We went on to point out the advantages, in clarifying the risks and the strategies to prevent them, in working with the family, and eventually 11 In re S-B (Children) (Care Proceedings: Standard of Proof) [2009] UKSC 17, [2010] 1 AC 678. 12 Approving Wall LJ in in Re D (Care Proceedings: Preliminary Hearings) [2009] 2 FLR 668, para 12. 10
  11. 11. in helping the child make sense of his history. If the individual responsible could not be identified, the judge should still identify the pool of possible perpetrators, including in it only those where there was a “real possibility” rather than only ruling out those were there was “no possibility”.13 S-B was an unusual case: a one-off incident of bruising to a young baby’s face and arms; the judge had concluded that only one parent could be responsible; and the injuries were such that the other parent could not be blamed for failing to protect the child. The parents had since separated and the father was out of the picture. So what was the risk of harm to the new baby, who had suffered no harm at all? Could it be concluded that he was likely to suffer significant harm in the future just because his older brother had done so? If the mother had not caused the bruising to the older child, what possible basis was there for concluding that she might harm the younger child in the future? The Supreme Court held, based on In re H, that unless the court could be satisfied that it was more likely than not that the mother had done it, it could not conclude that there was a risk to the younger child. A prediction of future harm has to be based upon findings of actual fact.14 We were later told that this caused such consternation in professional circles that the point had swiftly to be returned to the Supreme Court, in a case called In re J.15 13 North Yorkshire County Council v SA [2003] 2 FLR 849. 14 This was confirmed in In Re O (Minors) (Care: Preliminary Hearing) [2003] UKHL 18, [2004] 1 AC 523,. 15 In re J (Children) (Care Proceedings: Threshold Criteria) [2013] UKSC 9, [2013] 1 AC 680. 11
  12. 12. That case was set up for the purpose, if not at the initiative of the local authority, then certainly with their support. The facts were very different. A three week old baby had died as a result of asphyxia, following multiple injuries inflicted on more than one occasion; the injuries could have been caused by the mother or by the father or by both, but the judge did not say which. Unlike In re S-B, there were all sorts of indications, perhaps of complicity, and certainly of failure to protect, on the part of a parent who had not inflicted the injuries. The judge commented that “singling out a likely perpetrator does not help this couple because it must be debateable as to which is worse, to inflict this injury or to protect the person responsible.” So their surviving child was taken away from the couple on the basis of future risk. Some years later, the mother and father had separated, the mother was now in a completely different relationship, and had been living for some time with her new partner and his two children from a previous relationship. The family had given no cause for concern to the authorities at all until a new child, her third and their first together, was 20 months old. Only then did the local authority find out about the earlier proceedings and required the mother to leave home while the case came to court. 12
  13. 13. The local authority brought proceedings in respect of all three children, not just the toddler but the two older half-siblings, none of whom had suffered any harm. They based their case that all three were likely to suffer harm in the future, not on all the other questionable features of the mother’s earlier behaviour, but solely on the fact that she had not been ruled out as perpetrator of the injuries to the child who had died. I do wonder what to make of this reticence; also of the fact that when the trial judge loyally followed In re S-B, dismissed the care proceedings and allowed the mother to go home, the appeal was not progressed as a matter of urgency; and that no proceedings were brought in respect of a new baby, conceived before the mother was obliged to leave the home and born shortly after she returned. I cannot escape the suspicion that no-one seriously thought it likely that the new baby would be harmed. In any event, the Supreme Court unanimously upheld the previous decisions and dismissed the local authority’s appeal. The only disagreement was between the majority, who thought that the fact that another child had been seriously harmed in the same household as the mother was relevant but not sufficient to establish a likelihood of future harm, and the minority, who thought that it was not even relevant. As Lord Wilson vividly put it, “if X’s consignment to a pool [of possible perpetrators] has a value of zero on its own, it can, for this purpose, have no greater value in company”. But I doubt whether there was really much difference, at least 13
  14. 14. between him and me. I only thought it relevant to the extent that there were other facts and circumstances related to the fact that a child had been injured which were indicative of a likelihood of harm to another child in a completely different household – as indeed there might have been in this case. The decision was severely criticised16 and there were suggestions that the law should be changed (spearheaded in Parliament by Lord Lloyd who had been in the minority in In Re B) but they came to nothing. I do not think that the decision was inconsistent with the so-called “trio” of earlier House of Lords’ decisions. It is entirely consistent with Re H, which was all about how you prove that future harm is likely. The other two cases were not about that at all. One was about a child who had already been seriously harmed.17 The question was whether the second part of the test was satisfied, that the harm was attributable to a lack of reasonable parental care, when the judge could not decide whether the mother, the father or the child- minder were responsible. The answer was that that condition is fulfilled if either a parent or a person with whom the parents shared care was responsible, even if that might mean taking a child away from a parent who may have done no wrong. The other was about the welfare stage of the enquiry, after the threshold has been crossed: how do you decide what order to make if you know that a child has been 16 Eg by Stephen Gilmore at (2013) 25 CFLQ 215. 17 Lancashire County Council v B [2000] 2 AC 147. 14
  15. 15. harmed but you do not know which parent was responsible? 18 Once the threshold has been crossed, it would be “grotesque” to proceed on the basis that the child was at risk from neither parent, even though one of them must have done it. I have no quarrel with that. It only serves to underline the importance of deciding who the perpetrator was in any case where you can conscientiously do that on the evidence before you, because then it will be so much easier to decide the later questions. But my own view is that those are very different questions – how best to protect a child who has already been harmed - from the question of whether it has been proved likely that a child who has not been harmed will suffer harm in the future. The next question is “how likely is likely”? The words used in the Children Act are “likely to suffer significant harm”. It was decided in In re H that “likely” in this context does not mean “probable” – in the sense that it is more likely than not that it will happen. It means no more than that there is a real possibility that it will happen, “a possibility which cannot sensibly be ignored, having regard to the nature and gravity of the feared harm in the particular case”. Lord Nicholls reasoned that the child needed protecting from such a possibility just as much as from a probability and also that from the parents’ point of view there was no particular magic in the difference between the two. Some might wonder how he 18 In re O (Minors) (Care Proceedings: Preliminary Hearing) [2003] UKHL 18, [2004] 1 AC 523. 15
  16. 16. could reconcile this view with his rejection of the real possibility that allegations of past facts might be true. Doesn’t the child also need protection against that? I think the difference is that without a firm foundation in fact you cannot decide that there is any possibility at all and children and parents both need protection against intervention based on mere suspicion. I also think it very difficult to decide whether something is more likely than not to happen in the future, whereas it is rather easier to decide whether it is more likely than not that it happened in the past. The other point is that Lord Nicholls’ formula relates the required degree of likelihood to the magnitude of the harm which is feared. Thus a comparatively lower degree of likelihood will justify intervening to protect a child from death or serious injury than would justify intervening to protect a child from less serious harm. This brings me on to the sort of harm we are predicting may happen in the future, which was one of the issues in the case about Amelia.19 The issues which troubled me in that case were: first, what sort of harm were we talking about; second, was it significant; and third, how likely was it to happen – was the gravity of what was feared sufficient to justify pre-emptive action however likely or unlikely it was that it would happen? 19 Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911. 16
  17. 17. As to the first, how do we distinguish between emotional and psychological harm to a child and the likely consequences of being brought up by less than perfect parents? As I put it (para 143), “We are all frail human beings, with our fair share of unattractive character traits, which sometimes manifest themselves in bad behaviours which may be copied by our children. But the state does not and cannot take away the children of all the people who commit crimes, who abuse alcohol, who suffer from physical or mental illnesses or disabilities, or who espouse anti-social political or religious beliefs.” We should of course protect the children of parents who neglect or ill-treat them because of such characteristics: one only has to read Mind the Child by Camila Batmanghelidjh and Kids’ Company20 to be outraged at the lives some of these children lead and at the failure of the authorities to do anything about it. But that is very different from simply having less than perfect people as parents. The starting point is Lord Templeman’s well-known words as long ago as 1988:21 20 Penguin Books, 2013. 21 In re KD (a minor ward) (termination of access) [1988] 1 AC 806, at page 812. 17
  18. 18. "The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not in danger. Public authorities cannot improve on nature." It follows, as a wise Family Division judge put it nearly twenty years later,22 “ . . . that society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, whilst others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting. In any event, it simply could not be done.” In that case, there was little doubt that the children would do much better at school and perhaps in other ways, if they were brought up by foster parents rather than by 22 In re L (Care: Threshold Criteria) [2007] 1 FLR 2050, per Hedley J, at para 50. 18
  19. 19. their own parents, who had quite significant learning difficulties and some history of domestic violence. But the judge held that the threshold had not been crossed. So how do we distinguish between the natural tendency of children to grow up to be like their parents and “significant harm” to their social or psychological development for the purpose of the threshold? The trial judge in Amelia’s case was not very specific about how he had found the threshold crossed – he commented that it had been crossed, “not perhaps in the extreme way that is seen in some cases”. The local authority was concerned about the emotional harm likely to be caused by the mother’s somatisation disorder and the (contested) factitious illness disorder. There were also concerns about the parents’ personality traits, the mother’s vulnerability to accommodation disorder, the mother’s lying and the father’s less chronic tendency to dishonesty and vulnerability to the misuse of drugs. But quite what these would mean for the child and how significant they were likely to be was not addressed. I think it is important that, when considering the threshold, the judge should identify as precisely as possible the nature of the harm which the child is likely to suffer, particularly where this is the future impairment of psychological or social development. I also think that the Departmental Guidance is correct to define “significant” as “considerable, noteworthy or important”. The court should identify 19
  20. 20. why and in what respects the likely harm was significant. Further, the harm has to be attributable to a lack or likely lack of reasonable parental care, and not just to the characters and personalities of the parents. So it would help if the judge were to spell out in what respects it was likely that parental care would fall short of what it was reasonable to expect. Finally, the court should consider the relationship between the degree of likelihood and the nature and severity of the harm. This all seems to me to be a useful discipline and one which would deter too ready a finding that the threshold has been crossed on the basis of an unquantified risk of not very readily identifiable psychological harm way in the future. But the trial judge had found the threshold crossed and none of us felt able to interfere with that judgment. The other issue was whether it was right to make a care order with a view to the permanent removal of a child from devoted parents who were well able to look after her immediate needs and with whom she already had a good relationship. Once the threshold is crossed, all the Children Act requires is that the child’s welfare is paramount in deciding what order to make. But this is where the Human Rights Act 1998 comes in, because the court is not allowed to make any order which is incompatible with the Convention rights. Article 8.2 of the Convention requires that any interference with the right to respect for family life be “in accordance with the law” and “necessary in a democratic society” for any one of a 20
  21. 21. number of purposes, including the protection of the rights and freedoms of others. The European Court of Human Rights has frequently said23 that, although the best interests of the child are paramount, “family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to ‘rebuild’ the family”. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing. However, where the maintenance of family ties would harm the child’s health and development, a parent is not entitled under article 8 to insist that such ties be maintained.” In Amelia’s case, two judges in the Court of Appeal had been troubled by the proportionality of allowing this most drastic interference with family life where the threshold had not been crossed in such an extreme way. But the Supreme Court agreed that proportionality was not to be seen in such a linear fashion. The most drastic order was to be reserved for cases where, as I put it and the others agreed, “nothing else would do” (para 197).24 But there was no necessary correlation between the severity of the harm and whether something else would do. There are cases where the feared harm has been very severe but the professionals have been 23 See, eg, YC v United Kingdom, App no 4547/10, 13 March 2012, para 134. 24 The Court of Appeal has since stressed, first that the evidence must address the realistic options and second that the court must explain why it is choosing the one that it does, but that this has not changed the law: In re B-S [2013] EWCA Civ 1146, [2014] 1 WLR 563; In re R [2014] EWCA Civ 1625, [2015] 1 FLR 715. 21
  22. 22. able to work successfully with the family. By contrast, this was a case in which the judge had decided that the professionals would not be able to work successfully with the family, and the majority did not feel able to conclude that he was wrong to make a care order as a result. I also worry about the relevance of proportionality to whether the threshold has been crossed. It is, of course, the making of the order which interferes with the right to respect for family life. But the reasons for the interference have to be “relevant and sufficient” so as to make the interference “necessary in a democratic society” and these include the reasons why the threshold was crossed. The majority, however, seem to have thought proportionality irrelevant at that stage. Enough of these legalistic musings. I am sure that we all want care proceedings to do both of the tasks with which I started out: to protect children from significant harm and to protect both children and their families from unwarranted interference in their family lives. One well-known journalist, who has strong views on the subject of care proceedings brought on the basis of future psychological harm, might comment that the system would be better off not pursuing cases like that at all, while being far more vigilant to protect the Daniel Pelkas of this world. I could not possibly comment. 22