Council and Guardian win appeal over whether fact-finding hearing was unnecessary

The Court of Appeal has allowed appeals brought by a local authority and a children’s guardian against a judge's decision in care proceedings that a fact-finding hearing was unnecessary.

In P and E (Care Proceedings: Whether to Hold Fact-Finding Hearing) [2024] EWCA Civ 403, Lord Justice Baker set aside the judge’s order of 6 March 2024, and ordered that the fact-finding hearing should proceed.

He said: “The fact-finding hearing is necessary to provide a greater understanding of the risks of future harm and without that understanding it will not be possible to make plans for the future care of the children which safeguard their welfare.”

The case concerned two children: E, born in October 2021, and P, born in July 2023. 

The mother remains in a relationship with P's father, referred to as "F".

In the summer of 2021, the mother and E moved into accommodation provided for teenage mothers. F was not able to live at the property but visited frequently and stayed three nights a week.

Baker LJ said P's delivery was not straightforward. It was a planned Caesarean section but because of complications the delivery was completed by use of forceps which left marks on the baby's forehead and face.

On 19 July 2023, the local authority received a referral from the family GP stating that P, then two weeks old, had been presented at the surgery with discolouration to her lower leg and a bloodshot eye.

A child protection medical examination identified that P had sub-conjunctival haemorrhages and a metaphyseal fracture of the distal left tibia, said Baker LJ.

The local authority started care proceedings in respect of both children. At a hearing the next day, the children were made subject of interim care orders on the basis of a care plan that they should be removed from the care of the mother and F and placed with their maternal grandmother.

On 4 August, a follow-up skeletal survey revealed that P had a healing fracture to the right fourth posterior rib.

At a case management hearing in September 2023, HH Judge Watkins listed the proceedings for a fact-finding hearing over four days in March/April 2024 and made a series of case management directions, including the instruction of experts.

Expert reports were filed by Dr Karl Johnson, consultant radiologist, Dr Peter Morrell, consultant paediatrician, and Mr Richard Markham, consultant ophthalmic surgeon.

The expert's opinions were summarised by Baker LJ as follows:

(1) It was highly unlikely that the sub-conjunctival haemorrhage was attributable to P's birth. A likely cause was compression to the upper part of the body. No timeframe could be given from the appearance of the haemorrhage but it had not been present when the child had undergone medical checks on 12 or 13 July.

(2) The most likely cause of the metaphyseal fracture was excessive force applied to the left lower leg using a twisting and/or pulling action. Radiological dating of such injuries is difficult but it was estimated that the fracture was no more than 11 days old when seen on X-ray on 21 July.

(3) The rib fracture was most likely caused by an excessive compressive force to the chest. The radiological appearance was consistent with an injury no older than 4 weeks at the time of the skeletal survey on 4 August.

(4) There was no evidence of any metabolic bone or other disease of deficiency which could account for the fractures.

The local authority prepared a threshold document asserting that the injuries were “more likely than not” to have been inflicted on P on one or more occasion by one of the parents, and that the parent who did not inflict the injuries would have been aware of the child's pain.

In February 2024, a further case management hearing took place before HH Judge Gillespie. She granted the parties permission to instruct a consultant endocrinologist to prepare a further expert report. As a result, it was accepted that the fact-finding hearing which had been listed in March could not go ahead, said Baker LJ.

On 27 February, a parenting assessment completed by a local authority practitioner was filed in the proceedings, which contained “a number of positive observations” about the mother and F, said Baker LJ.

The assessment identified no concerns in relation to the parenting capacity of the mother and F, or how they function as a couple.

However, in regards to the injuries of P the local authority practitioner stated: “Due to the significance of the injuries and the real possibility that one or both parents could have caused these I am of the view that the evidence needs to be considered by the Court in the hope of determining how these injuries happened.

“I cannot safely make a recommendation as to how to manage the potential risk of harm to P and E should they be returned to the mother and F's care if the injuries have been inflicted and/or if the Court has not taken a decision as to how they occurred. On balance the reason the children are not with their parents is because of the injuries to P and a conclusion needs to be drawn, if possible, as to how those injuries were caused.”

The assessment report recommended a fact-finding hearing.

The next hearing took place in March. The parties' respective positions were summarised by the judge as follows:

"The mother and F seek to persuade the court that a finding of fact hearing is neither necessary nor proportionate in light of the glowing parenting assessment, the fact that this is a single-issue case, the evidential issues in relation to a fact-finding hearing and the full commitment of the parents to co-operating with any robust safety plan that would meet the welfare needs of the children. The local authority, supported by the guardian state that it is required to assess future risk and any refusal to hold a fact-finding hearing is tantamount to summarily dismissing the local authority's case and inhibits their ability to protect the children in the future. E's father is neutral on the point."

In her judgment, the judge concluded that a fact-finding hearing was neither necessary nor proportionate.

The local authority put forward the following grounds of appeal:

(1) The judge was wrong in the determination to not hold a fact-finding hearing in respect of the local authority's allegations as she did not properly assess and balance the relevant factors from the case law in determining the decision but focused on the similarities between the current case and the Derbyshire case [Derbyshire County Council v AA and Others [2022] EWHC 3404 (Fam)].

(2) The judge was wrong to determine the application to not hold a fact-finding hearing as the decision amounts to a summary dismissal of the local authority's application.

(3) The judge was wrong to determine the application to not hold a fact-finding hearing as the determination involved an assessment of the child's welfare best interests absent an established basis of fact, which would result in the return of the child to the parents' care without an understanding of the risks involved.

The Guardian put forward the following grounds of appeal:

(1) The judge was wrong to hold that because of P's age, knowing 'the truth' would not mean anything to her or her.

(2) The judge had before her expert medical evidence that P had suffered three injuries. […] The experts had rejected the explanation put forward by the parents. It was therefore wrong of the learned judge to hold that there was no evidence that the parents had caused the injuries maliciously or deliberately.

Discussing the grounds, Baker LJ said: “The judge was right to give careful consideration to the question whether a fact-finding hearing was necessary. But she took the wrong approach in reaching her decision by comparing the facts of the present case with those in the Derbyshire case. It was not correct to say that the facts of this case "very closely mirror" those in the Derbyshire case.”

He added: “In the Derbyshire case, Lieven J concluded that there was "no evidence … to support any finding of deliberately inflicted injury". In the present case, there plainly is evidence which is capable of supporting a finding that the injuries were inflicted deliberately, although no such finding could be made without consideration of all of the evidence.”

Baker LJ noted that the judge “plainly took into account” the parenting assessment filed shortly before the hearing.

Although the assessment was “undoubtedly positive”, Baker LJ found that the judge failed to analyse a number of the author’s key observations, including the conclusion that she could not "safely make a recommendation as to how to manage the potential risk of harm to P and E should they be returned to the mother and F's care if the injuries have been inflicted and/or if the Court has not taken a decision as to how they occurred".

Baker LJ said: “This was a fatal flaw in the judge's reasoning. The author of the parenting assessment was plainly right to say that, without a finding as to how these serious injuries to a very young baby had occurred, she could not safely make any recommendation as to how to manage the potential risk of harm to the children in future.”

Baker LJ agreed with the appellants' submission that the judge erred in basing her decision on a comparison with the Derbyshire case. He said: “Decisions of this sort should be made by a careful application of the principles derived from the case law. Comparison with decisions of other judges at first instance are unlikely to be helpful because inevitably each case turns on its own facts. And there is a danger that the comparison will be inaccurate.”

Allowing the appeals, Lord Justice Baker concluded that the fact-finding hearing was necessary to provide a greater understanding of the risks of future harm and “without that understanding it will not be possible to make plans for the future care of the children which safeguard their welfare”.

He set aside the judge’s order and made an order that the fact-finding hearing should proceed.

Lord Justice Lewis and Lady Justice Whipple agreed.

Lottie Winson