Judge dismisses bid by council for unadmitted allegations to be tried, saying it would be “deplorable waste of resources”

Mr Justice Mostyn’s ruling came in a case concerning IW who was born in March 2020. The relationship of the mother (VW) and father (PM) was extremely short lived and they never lived together.

For over two years IW had been in care under an interim order made the day after he was born. He was in fact removed from VW shortly after his birth. VW had never played any part in his upbringing.

Mr Justice Mostyn said: “The application for a care order was made on the day of IW's birth. Today, VW is confronted by a lengthy threshold document. In another sphere she might say that her accusers had overloaded the indictment. She makes a certain number of admissions, indisputably sufficient to take the case well over the statutory threshold in s. 31 of the Children Act 1989. She will not oppose the making of a final care order in September nor will she oppose the making of a placement order on that occasion, the application for which was issued on 4 September 2020.”

PM did not have parental responsibility and did not seek to oppose the making of care and placement orders.

“Why is this matter not proceeding by consent?” Mr Justice Mostyn said. “The reason is that the local authority does not accept that VW's admissions properly reflect the reasons why IW has to be permanently removed from his birth family and adopted.”

The council was as a result seeking that at a five-day hearing in September 2022 the un-admitted allegations should be tried and judgment given upon them.

Mr Justice Mostyn’s findings in this case applying the discipline of the checklist (as amended) were as follows (at paragraph 49):

i) In my judgment there is no advantage at all to IW in his mother being subjected to the toll of a contested fact-finding hearing. Indeed, I consider that it would be contrary to his interests for that to happen. VW is extraordinarily vulnerable. I judge that the toll of a contested hearing would likely overwhelm her. IW would be likely at some stage in the future to learn that a case about her conduct towards him had led to widespread anguish. I believe that such knowledge would be harmful to IW.

(I deal with the whole truth factor below.)

ii) The cost to public funds in having a five day fact-finding hearing in September, with leading counsel and junior counsel for each of the local authority, VW and IW would be, I estimate, around £300,000. This cost, which will fall entirely on the public purse, simply cannot be justified.

iii) The time taken to undertake the fact-finding hearing should be confined to the five days already allowed in September, although one has to anticipate that there could be spillage to a much later date, especially bearing in mind that there are already over 4,200 pages in the bundle.

iv) The relevant evidential result is the result of this case, and no other case. I cannot predict what the relevant evidential result will be. Either way, the ordeal for VW will be considerable.

(I deal with the different child and perpetrator identification factors below.)

v) The future care plans for the child may well have to be reviewed by the local authority if factual findings were made. So, obviously, there is going to be scope for the future care plans for the child to be influenced by the result of such a local authority review.

vi) The consumption by a fact-finding exercise of the local authority's resources and professional time that might be devoted to other children, is, in my judgment, strongly relevant.

vii) No legitimate question can arise concerning the fairness of the trial that VW would receive should the fact-finding hearing in September be allowed to proceed.

viii) When surveying the justice of the case I confirm that I have stood back and rechecked that I have taken into account all relevant matters, including all matters relevant to the implementation of the overriding objective. I am not persuaded that there would be any particularly material "gulf" between the facts that would underpin a care order without a fact-finding exercise, and the apprehended factual findings were I to permit the matter to proceed to trial. This exercise is quintessentially conjectural and hypothetical. However, I have taken into account the level of seriousness of the disputed allegations and I have satisfied myself that the process I have ordained does justice to the reality of the case.”

Mr Justice Mosytn said [his emphasis]: “Fundamentally, I am not persuaded that a fact-finding hearing is necessary. During argument I asked Mr Sampson QC [counsel for the local authority]: cui bono? By which I meant, for whose benefit would a fact-finding judgment accrue? In the Oxfordshire case it was foreseeable that the father would apply for direct contact in the future. Plainly, a judgment containing clear factual findings would be highly relevant were such an application to be made.

“In this case, however, VW will agree to a care order and a placement order being made. It has been suggested that there is a possibility that the VW will apply in the future either for leave to oppose the making of an adoption order under s. 47(5) of the Adoption and Children Act 2002, or for leave to revoke the placement order under s. 24(2)(a) of the same Act. Each provision requires proof of a change of circumstances since the placement order was made. The change of circumstances must be significant and unexpected. Then the court must go on to make the familiar evaluation whether in the light of such a change of circumstances, and all other relevant facts, the application should be allowed to proceed. At that stage the applicant has to show that there are 'solid' prospects of success.”

The judge said that it was his considered estimation, having regard to (i) the history, (ii) VW's admissions, (iii) the terms of the uncontradicted expert evidence, and, above all, (iv) her agreement to the making of the orders, that the probability of VW obtaining leave under either section was “very close to zero, and that this spectre can thus be safely ignored”.

Mr Justice Mostyn said he had held that the different child purpose was not a legitimate purpose of a fact-finding trial of superfluous un-admitted allegations. “If I am wrong about that, I am clear, on the specific facts of this case, that the probability produced by a combination of the likelihood of (i) another child being born to VW, and (ii) care proceedings being initiated in respect of that child, and (iii) findings about VW's conduct before 26 March 2020 (now nearly 2½ years ago) being material in such proceedings is so small as to rule out this factor as a relevant consideration in the discretionary exercise.”

The judge also held that the original authorities implicitly rejected as relevant the whole truth purpose. “If I am wrong on this point, then I make clear that on the facts of this case I am far from satisfied that a judgment is needed on the un-admitted allegations in order to be able to reveal the whole truth to IW. If (and I emphasise if) there is an advantage to IW in the years ahead coming to understand the whole truth about his adoption, then I do not believe that the interlocutor who chronicles that whole truth will have any difficulty in assembling the story from the existing schedule of admitted allegations, and the 4,200-odd pages of evidence including the uncontradicted expert evidence referred to above. I do not believe that the chronicler needs the assistance of a judgment in order to assemble that story.”

Mr Justice Mostyn said that, similarly, if he was wrong as to the general irrelevance of the perpetrator identification purpose then on the specific facts of this case it was a completely irrelevant consideration. “Taken at its highest, the case that the local authority wishes to prove could not conceivably be for the main purpose of later enabling the public identification of VW as a child abuser. That is not a relevant factor on the facts of this case.”

The Family Court judge concluded: “The answer to my question cui bono is therefore nemo. I am not satisfied that the criterion of necessity is met in this case.

“That conclusion is reinforced when I introduce into the mix the terms of the overriding objective. In particular, I have regard to the need to be able to allot to the case an appropriate share of the court's resources, while taking into account the need to allot resources to other cases. In my opinion the five days in September would be much more appropriately occupied by dealing with a case where the resolution of factual issues will have a direct bearing on the outcome of the proceedings.”

The result was all one way, Mr Justice Mostyn said. “In my judgment it would be a deplorable waste of valuable resources for the un-admitted allegations to be formally adjudicated in a state trial. I cannot see any upside to allowing this to proceed; by contrast I can see (and have seen) huge downsides. The downsides include the unquestionable toll that the process would take on VW.”

It was for these reasons, the judge was satisfied that the proposal to conduct a fact-finding hearing in relation to the un-admitted matters cannot be justified.

Mr Justice Mostyn directed that the five-day fixture on 5 September 2022 be reduced to one hour and that on that occasion the court shall make a care order and placement order without opposition from the parents. “There shall be no further forensic investigation into the un-admitted allegations.”