A Family Court judge should have refused an unnamed county council’s application to withdraw care proceedings for a child with an unexplained injury, the Court of Appeal has ruled.
Lord Justice Baker and Lord Justice Flaux said that shortly before the matter reached them the local authority dropped its opposition to the care proceedings continuing.
That though left them being supported by child G’s children’s guardian but opposed by her mother.
G was born in April 2019 and spent part of her time in the care of her maternal grandparents.
On 3 January the maternal grandmother noticed a swelling on G's head and took her to hospital where she was found to have a small displaced oblique fracture of the right parietal bone with a 5mm subgaleal haematoma overlying the fracture site.
No family member could provide an explanation for this and later suggestions of how the injury might have occurred were described by exerts as possible but unlikely.
The local authority obtained an emergency protection order and then an interim care order on the basis of a care plan under which the mother and G would live at a mother and baby foster placement. A fact-finding hearing was listed for four days in July 2020.
But the day before a case management hearing on 12 June, the local authority said it would apply for permission to withdraw the application for a care order.
At the Family Court in Coventry HHJ Watson granted this and refused the guardian permission to appeal.
The Court of Appeal then agreed to hear the matter, by which time the local authority had decided not to oppose the appeal.
The children's guardian appealed on the grounds that HHJ Watson had been wrong to determine the issue of threshold criteria without the benefit of lay and expert evidence and to take a narrow interpretation of the expert evidence without considering the wider purview of the expert position.
It was also argued that HHJ Watson had been wrong to conclude that the expert evidence could not satisfy the threshold criteria in s31 of the Children Act 1989 and that she should have looked at the wider picture of the child's welfare and adequately scrutinise the child in need plan.
Giving judgment, Baker LJ said: “I have considerable sympathy with the judge for the predicament in which she found herself.
“The family courts are under very great pressure…here, the judge was faced with an application filed at short notice by the local authority which, in my judgment, should not have been made.
“Understandably, the judge took into account the local authority's own assessment of the strength of its case.”
He said though that the appeal by the children’s guardian must be allowed because on written medical evidence alone “it was not possible for the court to conclude that the test for granting permission to withdraw the proceedings was satisfied”.
Baker LJ said: “To my mind, this is a paradigm example of a case where a judge needs to hear all the evidence, to assess whether the lay witnesses' evidence is truthful, accurate and reliable, and evaluate the medical opinion evidence, tested in cross-examination, in the context of the totality of the evidence.
“It is simply not possible for the judge to reach a conclusion as to the cause of G's injuries on the basis of the written evidence alone.”
The outcome of the case was “plainly of enormous relevance to the future care plans for the child” and there was no significant disadvantage in the fact-finding hearing going ahead.