This judgment is being handed down in private on 20TH July 2005 It consists of 18 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Strand, London, WC2A 2LL
B e f o r e :
| A COUNTY COUNCIL
- and -
|D P (1)
R S (2)
B S (3)
By his children's guardian
Robin Tolson QC and Susan Freeborn
(instructed by Johnson and Gaunt) for the 2nd Repondent
Michael Trueman (solicitor advocate) for the 3rd Respondent
Hearing dates: 19th and 20th July 2005
Crown Copyright ©
Mr Justice McFarlane :
i) 'B S' is the second child of 'D P' ([a date in] /1/71) and 'R S' on ([a date in] /11/74). 'B's full sister is 'K', born on [a date in] January 2001.'DP' and 'R S' were married in October 2001, having met in March 2000.
ii) On 10th June 2002, a Supervision Order (for 8 months) was made in favour of A County Council in relation to 'K'. That Order followed proceedings in which 'Mr.S' admitted fracturing a number of 'K's ribs non – accidentally – see A6 ff.. Those injuries were found to have occurred during February 2001 on two separate occasions. Happily, following intervention from Dr. Jones and his team at the Park Hospital, it was possible for the family to be reunited.
iii) 'B' was admitted to hospital on 29th March 2004 in asystolic cardiac arrest. He was alone in his father's care at the time of the collapse. On 30th March 2004, skeletal surveys revealed a healing undisplaced spiral fracture of the mid/lower shaft of B's right humerus. That injury is thought to be approximately 1 – 3 weeks old. Concerns were expressed by 'B's clinicians that they were suspicious in relation to both the fracture and 'B's collapse.
iv) 'B' remained in hospital until 2nd May 2004, when he was discharged into foster care. Fortunately, the parties and the extended families were able to work towards a plan for supervised reunification between B and his mother. A plan of supervised care was agreed in July 2004, and on 23rd August 2004 'B' was returned to his mother's care, subject to supervision, where he has remained and will remain for the rest of his minority should the Local Authority'. 'Mr. S' has enjoyed supervised contact each week. 'B' has made a full recovery from his injuries.
The Preliminary Issue
a) That, in the circumstances of no public law orders now being sought, it is unlawful for the local authority to seek such findings and for the court to embark on the proposed fact finding hearing; and
b) If (a) fails, and the court has power to hold a fact finding hearing, the court should exercise its discretion against doing so.
"He puts up with this contact arrangement because he has a horror of being found guilty of an offence he did not commit [ie the alleged assault leading to 'B's collapse] leading to a possible prison sentence and to putting his relationship with his children in jeopardy."
It is, says Mr Tolson, a pragmatic position.
(1) Lawfulness – The Submissions
a) The court in care proceedings can only function within the statutory context established by CA 1989, Part IV;
b) The need for the court to be satisfied about the s 31 threshold only arises if the court is being asked to make a care or supervision order;
c) The line of cases including Stockport Metropolitan Borough Council v D  1 FLR 873 (see below for list) ('the Stockport cases') where the court has considered whether or not a particular fact finding exercise is justified, have all been cases where some public law order is either agreed or in issue;
d) The local authority are now solely or mainly seeking findings against the father on criminal matters for their own sake;
e) Relying upon both Magna Carta and the ECHR, a finding of fact hearing which is conducted neither within criminal proceedings nor in pursuit of an effective application for a public law order, but in some ill defined statutory vacuum, is neither lawful nor "necessary".
a) The court is in control of its own proceedings. The public law application has not been withdrawn and, even if all the parties agreed that it should be withdrawn, the court retains a discretion whether to permit such withdrawal and, if withdrawal were refused, may require the local authority to press on with its application;
b) The intended fact finding investigation is lawful in that it comes within the statutory context of the scheme for private law orders (and in particular the need to consider harm within the welfare principle – CA 1989, s 1(3)(e)) and/or public law orders under CA s 31. Alternatively the court should undertake the exercise relying upon High Court's parens patriae role and, if necessary, by giving the local authority leave under CA s 100 to make application under the inherent jurisdiction;
c) Until the court has determined the facts as best it can, and evaluated whether or not the threshold is passed, it is not appropriate to say that there will in fact be no public law order. All that can be said at the present stage is that no party is positively seeking such an order. It is for the court to go through the two stage process of 'threshold' followed by 'welfare decision';
d) There can be no challenge to the lawfulness of the local authority's actions in commencing the proceedings after 'B's collapse, why should such proceedings become 'unlawful' simply because the authority conclude that the child is sufficiently protected without a public law order;
e) There is a pressing need for clarity and it is in accordance with the child's welfare for there to be a finding of fact, the proposed hearing is therefore justified and proportionate;
(2) Lawfulness - Analysis
i) The local authority are not in fact applying to withdraw the application for the reasons summarised by Mr Vater. Those are, in my judgment, legitimate and sound considerations;
ii) I do not accept the submission that a court is bound to allow the withdrawal of proceedings where all of the parties agree that that should occur. FPR 1991, r 4.5(4) expressly provides that a precondition of withdrawal is that 'the court thinks fit'. There is thus a judicial discretion and it does not therefore follow as night follows day that the courts jurisdiction to continue with the proceedings would end simply because the parties all agree that the proceedings should be withdrawn. The withdrawal provisions (and indeed the guardian system in public law itself) came into existence as a result of child care tragedies in the 1970's and 80's. The court's role in such matters is not to be that of a neutered 'rubber stamp' for the parties' requests.
(3) Exercise of Discretion
Re G (A Minor) (Care Proceedings)  2 FLR 69 [Wall J]
Stockport Metropolitan BC v D  1 FLR 873 [Thorpe J]
Re B (Agreed Findings of Fact)  2 FLR 968 [Butler-Sloss + Thorpe LJJ]
Re M (Threshold Criteria: Parental Concessions)  2 FLR 728 [Butler-Sloss LJ and Wall J]
Re D (A Child) (9 August 2000) [Schiemann, Thorpe and Mummery LJJ]
a) The interests of the child (which are relevant but not paramount)
b) The time that the investigation will take;
c) The likely cost to public funds;
d) The evidential result;
e) The necessity or otherwise of the investigation;
f) The relevance of the potential result of the investigation to the future care plans for the child;
g) The impact of any fact finding process upon the other parties;
h) The prospects of a fair trial on the issue;
i) The justice of the case.
a) It will not change the outcome (in terms of orders sought) of these proceedings;
b) Any adverse finding will not be accepted by the father and therefore nothing will be resolved;
c) There is already an identified need for caution with regard to this father's care of children arising from the previous findings relating to Kimberley;
d) It is not clear that 'B's welfare would be best served by holding this hearing, for example, how is it in his interest to know more clearly that his father broke his arm and/or attempted to smother him (if those be the eventual findings);
e) As a result of the manner in which the experts' meeting was conducted any fact finding hearing could not now be procedurally fair.
a) The very substantial gulf between the limited concession made by the father and the serious allegations of physical assault and attempted smothering;
b) (a) goes nowhere near meeting the justice of the case;
c) without a finding, there is little to preclude the father seeking more extensive and unsupervised contact in the future;
d) if he did so, there would then be the potential for a fact finding hearing on this evidence. The hearing is set up now and ready to be heard (as a result of substantial cost and effort). The evidence is as fresh as it will ever be. A hearing now is plainly preferable to one in some years time;
e) the public interest for those who cause NAI to be identified if possible;
f) a child's right to know the truth about whether they were injured and, if so, who by;
g) it is important for the wider interests of the family (including the father) for there to be as much clarity as possible;
h) if the mother died, or became reconciled with the father, there would be no findings on these issues and nothing to prevent the father exercising his parental responsibility as he saw fit;
i) ironically, there may be over (or an unjustified level of) protection of 'B'if there is no attempt to achieve clarity;
j) The Case Conference awaits a fact finding decision before determining whether or not the mother can indeed be exonerated from blame and a consequent decision can be made concerning 'B's continued registration on the Child Protection Register [minutes of child protection review conference 7th June 2005 – not in bundle].
i) It is not possible for me to hold at this stage, without further investigation, that the experts' meeting process was procedurally flawed so as to be unfair. Any ECHR Art 6 unfairness is, in any event, to be judged in relation to the proceedings as a whole and not solely one element of them. Now is therefore not the stage at which this argument can come into play or be given any substantial weight;
ii) The gulf between the father's position and the central allegations is indeed wide. I note that in all of the reported cases, the parents had made significant concessions on threshold and/or the factual substrata. That is not the case here;
iii) If there is a real potential for these facts to be litigated in the future then they should be litigated now and not some years hence. The father has made it plain to the guardian [C148] that his eventual aim is unsupervised contact to include staying contact. Mr Tolson says that this is in the long term, when either 'B' is seen to be too old to be at risk of this form of abuse and/or is asking for more contact;
iv) The public interest in the identification of the perpetrators of child abuse and the public interest in children knowing the truth about past abuse are important factors (see Re K (Non-Accidental Injuries: Perpetrator: New Evidence)  EWCA Civ 1181;  1 FLR 285).