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Family Court judge considers power summarily to dismiss findings sought by local authority

The Family Court will determine allegations made by an unnamed local authority as to how a child came to sustain a head injury, Mr Justice MacDonald has ruled.

In A Local Authority v W & Ors (Application for Summary Dismissal of Findings) [2020] EWFC 40 it was asked whether it had the power - independent of its case management powers under the Family Procedure Rules 2010 - at the case management stage to summarily dismiss disputed findings sought by a local authority against a parent in proceedings under Part IV of the Children Act 1989.

The case concerned two children, one-year-old S and two-year-old L, both subjects of child in need plans.

S sustained a head injury in June 2019 and the local authority sought a finding that the cause was either intentional suffocation by one or other parent, or was caused by some circumstance known to the parents, but withheld by them.

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The father argued that the court had powers to summarily dismiss these disputed findings as it could conclude the evidence filed could not support them.

Macdonald J said the family were known to the local authority and its difficulties included domestic violence, inadequate housing provision, inconsistent engagement with professionals and poverty.

The judge said: “The issue before the court is…whether a court has power, independent of the FPR 2010, to decide summarily at the case management stage that a given disputed finding sought by a local authority is incapable of proof on the balance of probabilities.”

He said case management powers under the FPR 2010 governed how the court decided which disputed findings required its determination and “it is not necessary or appropriate to look for a power to summarily dismiss a disputed finding of fact that exists independently of [that]”.

Given the evidence available “it would be wrong to direct…that it is not necessary to determine the allegations made by the local authority regarding the causation of the head injury sustained by S”.

Macdonald J said this was because “to seek to carve out a bare power of summary judgment with respect to disputed findings of fact in public law proceedings existing outside the FPR 2010 is both unnecessary, having regard to the court's existing case management powers, and inappropriate, having regard to the nature of public law proceedings and the legal principles applicable to the process of fact finding therein”.

He added: “I am satisfied that the determination of the disputed findings sought in respect of the causation of S's head injury is central to both the children's interests and relevant to the future plans for the care of the children, providing as it will a firm foundation on which professionals and the court can rest welfare decisions.

“There is a marked difference in the consequence for the welfare evaluation as between a finding of inflicted injury, a finding of accidental injury and a finding that the injury remains unexplained…it has the potential to mean the difference between a plan of rehabilitation and a plan of permanency.”

He said the father's application “proceeds on the misconception that if no definitive medical explanation can be offered for S's condition then the evidential result must be that court is precluded from making a finding as to causation.

“This is not the position in law. Rather, the authorities make abundantly clear that even where the only tenable conclusion on the medical evidence is that there is more than one possibility for the cause of the injuries or that the injuries are medically unexplained, the court may, having regard to the wider canvas and in an appropriate case, nonetheless conclude that parent was responsible for deliberately causing the injury.”

The judge concluded that the justice of this case required the court to determine the disputed findings.

“Where a child has been deliberately injured there is a public interest in identifying those who cause deliberate injuries to a child,” he said.

“Equally, where a child has not been deliberately injured, there is a public interest in the removal of unjustified speculation and suspicion that may have fallen wrongly on those who are not in fact culpable.”

Mark Smulian

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