England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/07/2005

Mr Justice McFarlane :

Introduction

1. By an application made on the 14^th April 2004, A County Council (the local authority) applied for a care order with respect to 'B S' , who was born on [a date in] September 2003 and who was then aged 7 months old. For present purposes it is sufficient to summarise the background to the application in the words of the local authority's position statement:

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 10^th 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 29^th March 2004 in asystolic cardiac arrest. He was alone in his father's care at the time of the collapse. On 30^th 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 2^nd 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 23^rd 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

2. By order dated 25^th October 2004 (wrongly dated 2005) [A43], made by the case management judge, Mrs Justice Baron, the application was listed for a 10 day final hearing starting on the 18^th July 2005. At the pre-hearing review before Baron J on the 28^th June 2005, counsel for the 2^nd Respondent father indicated that a preliminary issue was to be raised over the legality and scope of any fact finding exercise.
3. In summary the preliminary issue raised by the father arises from the fact that, following a full assessment, there is unanimity between all the parties to the effect that neither a care order nor a supervision order is required in this case. There is agreement that 'B' shall continue to live with his mother and 'K' under a residence order and that the father's contact shall remain limited to once per week on a Saturday provided that it is supervised by various approved family members. Whilst the father has conceded that he may have accidentally caused the fracture to 'B's right arm, he does not concede the threshold criteria and makes no admissions about the cause of 'B's respiratory collapse or, if that collapse was inflicted, its perpetrator. The local authority, mother and children's guardian, despite there being agreement as to the orders that are to be made, seek findings of fact against the father with respect to the arm fracture and respiratory collapse. The father claims:

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.

4. Baron J directed that the preliminary issue be considered by the trial judge at 2.00pm on the first day of the hearing. Due to an administrative error, only counsel for the father attended before me, as the trial judge, at the appointed time on the 18^th July. All the parties, however, attended at 10.30 on Tuesday 19^th July when full argument was heard on the issues raised by the father. At the conclusion of the argument I reserved judgment. In view of the time constraints, and in view of the benefit (if possible) in having a written record of the judgment on this issue, I do not propose to do more than summarise the arguments raised by both sides on this important and apparently novel issue. This course is in no way intended to show disrespect for the full and clear written arguments produced by each party which were supplemented by thoughtful and relevant oral submissions. I hope that it goes without saying that I am extremely grateful to the advocates for the skill that they have each deployed in presenting their cases.
5. Before turning to the legal arguments that have been raised, it is helpful to consider the reality of the father's position in these proceedings. His formal 'Response to Threshold Findings' dated 4^th July 2005 [prelim pages of bundle page 109] asserts that the fracture to 'B's arm may have occurred on the 19^th March 2004 at bath time when 'B' wriggled free of the father's grasp and the father grabbed his arm to stop him falling. The father does not accept that this concession is sufficient to cross the s 31 threshold. He goes on to deny any attempt to smother or otherwise harm 'B' on the day of his collapse or at any other time.
6. The father's stated position in relation to 'B', coupled with the earlier findings and risk assessment with regard to 'K', would not normally support the imposition upon him of a regime of restricted supervised contact for the indefinite future, yet he is content to accept just such a regime in this case. Following questions from the court, Mr Tolson explained the father's position in this way:

"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.

7. There is, therefore, in reality, a very wide gulf between the case of abuse asserted against the father and his denial of any culpable behaviour. This gulf is not however reflected in a similar head on clash over the arrangements for 'B's future care, solely because the father, for the 'pragmatic' reasons reported by his counsel, has decided to accept greatly restricted contact arrangements in order to avoid a contested fact finding hearing.

(1) Lawfulness – The Submissions

8. Mr Tolson's primary submission is that, as there is no effective application for a public law order, any investigation of whether the CA 1989, s 31 threshold is crossed would be unlawful. In particular he submits that:

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 [1995] 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".

9. The arguments raised against this position on behalf of the other three parties are:

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


 


10. In so far as the skeleton arguments focus upon the determination of the s 31 threshold criteria, as opposed the fact finding exercise that might support a threshold finding, I consider that focus to be incorrectly aimed. The s 31 threshold, important though it may be, is no more than a jurisdictional gateway through which a court must pass before it is empowered to make either a care or supervision order. The real focus of Mr Tolson's argument is to prevent a finding of fact hearing, whether or not that is to underpin a threshold finding or for use in evaluating private law residence or contact plans.
11. Magna Carta is not habitually quoted in support of legal argument in the Family Division, it is however of interest to be reminded of the terms of its Chapter 29 and to measure them up against the more modern and well known provisions of ECHR, Art 8. There is in my view very little difference between the requirements laid down in these two instruments, despite the passage of over 700 years between the two. That this is so is really of no surprise. Both are fundamental statements of core human rights. For the purposes of the 'lawfulness' argument raised in this case, I fully accept that any process upon which this court embarks to find facts in these proceedings must be "by lawful judgment" and "by the law of the land" (per 1215) or "in accordance with the law" (per 1950).
12. I do however consider that Mr Tolson is wrong to import the "necessary" provision of Art 8 into this stage of his argument which is confined to legality. Necessity, proportionality and pressing need are all matters that are properly to be considered at the discretionary stage, but they cannot assist on the core question of whether or not the process is lawful in itself.
13. These are properly constituted care proceedings under CA 1989, Part IV. The issue of the proceedings following the apparent life threatening event (ALTE) experienced by 'B' and the discovery that he had an earlier spiral fracture of the right humerus was both legitimate and proportionate and is not the subject of any challenge as to legality. The proceedings have not been withdrawn and there is no application to withdraw them. Mr Vater for the local authority explains that there is no application for withdrawal because the local authority sees the making of findings of fact as being an integral part of the proceedings, notwithstanding that the authority does not intend to seek a public law order at the end of the case. These are, he says, serious allegations; the evidence in support is strong; there is no concession from the father that the s 31 threshold is met and such concessions as he does make about the arm do not fit with the medical evidence. It is necessary, within the context of Art 8, from the point of view of 'B', if not from that of his parents as well, for the factual evidence to be called and tested.
14. On the lawfulness issue, the father's argument rests entirely upon the fact that, at this stage of the proceedings, no party is asking the court to make a care or supervision order. Mr Trueman, for the child, in his helpful and perceptive argument, from the agreed basis that the proceedings were lawful when they commenced, asked at what stage they became unlawful. Mr Tolson's reply was that the proceedings became unlawful at the moment that the local authority decided not to press for a public law order. Mr Tolson also conceded that if the mother in this case was positively seeking these findings, then the court would not be acting unlawfully in conducting the hearing. If, therefore, as might have been the case, either the local authority's or the guardian's position had been in favour of a s 31 order then the lawfulness point would not have been available for argument.
15. In my view the stated position of a party before the start of a final hearing is not a very sound foundation upon which to determine the lawfulness or otherwise of the court's power to conduct the hearing. If Mr Tolson's argument is right the court's jurisdiction to conduct the hearing might be determined on something akin to a whim. Moreover, a party's position may legitimately change from time to time as more information becomes known, thus, on this argument, bringing into prospect proceedings that may become 'unlawful' and then return to be 'lawful' depending upon the local authority's changing view as to the order to be sought. More seriously, the opening position adopted by each party might, once the evidence is heard, not be justified as being the proportionate position to protect a child.
16. I favour the argument of Mr Tolson's opponents, summarised above, to the effect that 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. That is insufficient to render otherwise 'lawful' proceedings 'unlawful' in so far as they may consider various findings of fact.
17. Once properly constituted care proceedings have been commenced within the statutory context of CA 1989, Part IV, they remain lawfully established unless and until they are either concluded or withdrawn. The question of whether or not a particular fact finding exercise is conducted within those proceedings is a question for the court's discretion and is not a matter that will, of itself, be 'unlawful'.
18. Mr Tolson's submissions, possibly anticipating the above conclusion, go further. He submits that, if (which is not the case here) all the parties to a case apply to have the proceedings withdrawn, then the court has no option but to grant their request and cannot keep the case alive contrary to the common will. The implication of his submission is that, given the positions of the other parties in this case, they should be applying to withdraw the s 31 application and that if that application were made it would have to be granted. The result thus reached would deprive the court of its jurisdiction to conduct the fact finding hearing.
19. The fall back submission set out at paragraph 18 (above) fails in my view for two reasons:

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.

20. In view of my conclusion that these are and remain lawfully constituted proceedings under CA 1989, Part IV, it is not necessary for me to consider whether there is alternative jurisdiction within private law proceedings arising in part from the need to consider 'harm' within the context of the welfare checklist (s 1(3)) or under the inherent jurisdiction. In view of the time available for the preparation of this judgment, I will not therefore consider the merits of those submissions.

(3) Exercise of Discretion

21. If it is lawful for the court to conduct a fact finding exercise despite the fact that at this stage no party is seeking a public law order, it is common ground that the court has a discretion whether, on the individual facts of each case, it is right and necessary to do so.
22. The relevant case law is to be found in the following decisions:

Re G (A Minor) (Care Proceedings) [1994] 2 FLR 69 [Wall J]

Stockport Metropolitan BC v D [1995] 1 FLR 873 [Thorpe J]

Re B (Agreed Findings of Fact) [1998] 2 FLR 968 [Butler-Sloss + Thorpe LJJ]

Re M (Threshold Criteria: Parental Concessions) [1999] 2 FLR 728 [Butler-Sloss LJ and Wall J]

Re D (A Child) (9 August 2000) [Schiemann, Thorpe and Mummery LJJ]

23. It is not necessary to read substantial parts of this case law into this judgment. Indeed I note that, in a former life, I was myself rightly discouraged in Re M from taking the Court of Appeal through the authorities because the law on this point is not in any particular doubt [see p 731B].
24. The authorities make it plain that, amongst other factors, the following are likely to be relevant and need to be borne in mind before deciding whether or not to conduct a particular fact finding exercise:

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.

25. I am well familiar with the concept of 'necessity', arising as it does from ECHR Art 8 and, indeed, from the pre Human Rights Act 1998 case law to which I have been referred. It is rightly at the core of Mr Tolson's submissions in this case and, without overtly labouring the issue by including substantial descriptive text in this judgment, it is at the forefront of my consideration of the point. Amongst the pertinent questions are: Is there a pressing need for such a hearing? Is the proposed fact finding hearing solely, as Mr Tolson puts it, 'to seek findings against the father on criminal matters for their own sake'? Is the process, which will be costly and time consuming, with potentially serious consequences for the father if it goes against him, proportionate to any identified need?
26. For the father it is said that the following factors point against a hearing taking place:

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.

27. The other parties (and so far as the first point is concerned the father) refer to the following:

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 7^th June 2005 – not in bundle].

28. The factors against holding the proposed investigation are significant. The cost and the time involved will be substantial. I have therefore been keen to consider whether such a hearing is truly necessary and proportionate.
29. Dealing shortly with some of the arguments that have been raised I would make the following observations:

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) [2004] EWCA Civ 1181; [2005] 1 FLR 285).

30. In addition I am struck by what, with respect to him, I may call the intellectual dishonesty of the father's position. His stance on the factual dispute (which is in effect to accept no culpable behaviour) is completely incompatible with his acceptance of limited, long-term, supervised contact. This, as is candidly admitted, is a 'pragmatic' position to avoid the feared consequences of the proposed investigation. It is a tactical position. It is not child focussed and has no internal logic. The apparent unanimity of view about the final orders hides the reality of a very substantial and important factual dispute between the father and the other parties.
31. Drawing all of these matters together I have come to the clear view that a full hearing of the factual evidence in relation to the fracture of 'B's arm and his respiratory collapse is necessary, justified and proportionate. Such a hearing is in 'B's best interests. In particular I regard it as almost inevitable that there will be a request for more open contact by the father in the future. I see his current tactical position as being temporary and opportunistic. There is a pressing need for these facts to be considered and findings, if possible, to be made one way or the other on the evidence.
32. For the avoidance of doubt, because of the manner in which this case (and others) has been listed and heard I have as yet only conducted a preliminary reading of the documents. The decision that I have reached on this preliminary issue has been approached on the basis of the arguments and the principles to which I have referred. I approach the fact finding process with an open mind and the fact that I have decided against the father's submissions is in no manner an indication of any view of the merits of the case. I have no such view at present and cannot have one until I have fully digested the written material and heard the oral evidence. Whilst I have made observations about the father's tactical position within the context of the legal argument and the merits of the preliminary issue as a whole, looked at narrowly and in human terms I regard his position as readily understandable and irrelevant to any decision on the factual issue which is yet to be determined.