The Supreme Court has clarified the role of the courts in child protection cases, as a result of a recent case concerning a baby boy who had been the victim of abuse.

The judge in the lower court had concluded that there was a 60 per cent chance that the father had abused the boy and a 40 per cent chance that the mother had been responsible for his injuries. The judge therefore decided that both the baby boy and his brother should be removed from their parents’ care.

The Supreme Court ruled that the original judge had misdirected herself and her use of percentages was unhelpful. After the terrible consequences arising from the failures in the case of Baby P, it is understandable that there are concerns that social workers and local authorities are not being sufficiently proactive in protecting children from harm. However, the standard of proof used by the courts in child protection cases is ‘on the balance of probabilities’; no more and no less. The burden of proof does not vary according to the gravity of the alleged misconduct or the seriousness of the consequences for the persons concerned.

The role of the courts is to examine carefully the evidence before them and make findings based on that evidence. What is in the best interests of the child should be determined after weighing up a range of considerations. It is the courts, not councils, which must decide on child protection.

Not every case will result in a care order. If it did, this would signify either that the courts were not scrutinising the evidence of each case sufficiently or that local authorities were not bringing enough cases.

The Supreme Court remitted the case back to the court to be heard by a different judge.