Name of case (citation): H-L (Children: Summary Dismissal of Care Proceedings) [2019] EWCA Civ 704

12 June 2019

Link to the judgment:  https://www.bailii.org/ew/cases/EWCA/Civ/2019/704.html

Date: Hearing: 11 April 2019. Judgment: 17 April 2019.

Case Summary

The ‘relevant date’ to determine the threshold criteria.

Facts:

In May 2018, a two-year old child (referred to as Nina) was examined by a hospital paediatrician and found to have approximately 20 bruises. Medical opinion concluded that Nina’s injuries were highly likely to have been non-accidental (forceful grabbing by an adult). Three people were potentially responsible for the injuries; the mother, the father and a family friend. Nina has an older half sibling, aged six and a half years (referred to as Lara).

The mother’s relationship with Nina’s father was marred by domestic violence. The local authority early help services became involved with the family in January 2017. Mother and father separated in the summer of 2017, when Nina was eighteen months old. Nina spent alternate weekends with her father.

Nina stayed overnight with her father on Sunday 13 May 2018 and on the Monday morning he returned Nina to her mother. The mother asked a family friend to care for Nina for the day. When the mother collected Nina, she noticed marks on Nina’s body and appropriately sought medical advice.

On 14 May 2018, the local authority insisted that the children were moved to their respective father’s care. The mother reluctantly complied. Lara and Nina did not see their mother for two weeks and did not see each other for eight weeks. Lara returned to her mother’s care in December 2018. Nina remains in the care of her father with limited contact to her mother.

Chronology

Date

Event

13 May 2018

Nina has overnight contact with her father.

14 May 2018

Injuries discovered - deemed to be non-accidental. Local authority insisted that both children move to live with their respective fathers.

This is the relevant date: the date when the local authority took protective measures.

28 May 2018

Legal planning meeting: threshold for court proceedings crossed.

7 June 2018

Initial Child Protection Conference: children became subject to plans.

22 June 2018

Legal gateway meeting: agreement to take the case to court.

9 July 2018

Social worker completed her court statement.

23 August 2018

Local authority issued proceedings. This is the date that the judge mistakenly identified as the ‘relevant date’.

14 September 2018

Hearing 1

19 September 2018

Hearing 2 – judge authorised a paediatric overview (paediatrician could not report until end of January 2019)

1 October 2018

Hearing 3

10 October 2018

Hearing 4

16 October 2018

Hearing 5 – case listed for a fact finding hearing in March 2019

30 October 2018

Hearing 6

23 November 2018

Hearing 7

7 December 2018

Hearing 8 – judge dismissed the proceedings on the basis that the threshold had not been crossed.

The judge dismissed the case on 23 August 2018 because he had ‘a real conceptual difficulty... with understanding how one can say as at 23 August 2018 the children were at risk of significant harm’ The local authority and the guardian successfully appealed. The Court of Appeal set aside the order of 7 December 2018 and the proceedings revived.

Implications for practice:

  • The ‘relevant date’ for assessing threshold conditions is the date at which the local authority initiates procedures to protect the child. (Re M (A Minor) (Care Orders): Threshold Conditions) [1994] 3 WLR 558)
  • The local authority secured alternative arrangements for the children to live with their respective fathers without having any legal standing for doing so.
  • Delay in issuing proceedings is not determinative of the threshold.
  • The local authority should have issued proceedings far earlier. A consequence of the local authority’s delay in issuing was that the parents were not fully legally represented during the period of the delay (May to August 2018). A further consequence was that the children did not have a guardian to represent them or monitor their situation.
  • The fact that the injuries are unexplained does not make the injuries irrelevant.

Lord Justice Peter Jackson sitting in the Court of Appeal stated: ‘The whole sequence of events shows that the court had strayed from its mission, which was to seek to discover how a small child had received worrying injuries.’ And later in the judgment: ‘The injuries to this child cried out for investigation and the law, far from preventing it, positively demanded it.

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