Name of case (citation): Lancashire County Council v TP & Ors (Permission to Withdraw Care Proceedings) [2019] EWFC 30

12 June 2019

Link to the judgment: https://www.bailii.org/ew/cases/EWFC/HCJ/2019/30.html

Date: Hearing: 8-11 April 2019. Judgment: 9 May 2019.

Case Summary

Permission to withdraw care proceedings

Facts:

TP and CP are the parents of E (now aged 17 years) and R (now aged 13 years) and special guardians for C & H (both aged six) and foster parents to K (aged four).

In July 2018 the local authority asserted that the threshold criteria had been satisfied in relation to E, R, C, H and K for the following reasons;

  • TP and CP frequently sought medical diagnosis for the children, relying on symptoms that were not witnessed by other professionals
  • TP and CP’s attitude towards gender dysmorphia. H and R transitioned into females at a very young age and were actively encouraged to do so by TP and CP. For example H was sent to primary school dressed in a girl’s uniform, aged four years, despite the school expressly asking for this not to happen.
  • Frequent attendances at the Accident & Emergency Department due to lack of supervision of the children.

Initial interim care orders were granted in August 2018 with C, K and H being removed from the care of TP and CP but their birth children (E and R) remain within their care. Expert reports were commissioned from a consultant paediatrician; an adult psychologist; a child psychologist specialising in gender identity and a parenting assessment from an independent social worker.

These reports were completed by February 2019. As a result of this expert evidence, the local authority concluded that they would no longer seek care or supervision orders. The local authority further accepted that all five children (E, R, C, H and K) should remain and/or return in the care of TP and CP.

When considering the local authority’s application for leave to withdraw, the court considered it obvious that the threshold could not be established and therefore permission to withdraw should be granted.

Implications for practice:

The rules

The Family Proceedings Rules 2010 (Rule 29.4) state that an application may only be withdrawn with the permission of the court.

Case law

This case confirms that where it is obvious that the threshold is not crossed, the application for permission to withdraw must succeed. The judge in this case stated: ‘This is not because the court has not applied the paramount welfare of the child but because where there is obviously no basis for the state to interfere (or the local authority to bring proceedings) it is plainly in the child’s welfare that the proceedings terminate and for the child to resume ordinary family life without the cloud of uncertainty, intrusion and stress which accompanies the court process.’

Where there is a possibility that the threshold might be crossed the court must undertake a more detailed evaluation of the situation as indentified in A County Council v DP & Ors [2005] EWHC 1593. This case refers to a nine factor analysis (known as the 9 ACC factors), as follows:

  1. The interest of the child (relevant not paramount)
  2. The time the investigation would take
  3. The likely cost to public funds
  4. The evidential result
  5. The necessity of the investigation
  6. The relevance of the potential result to the future care plans for the child
  7. The impact of any fact-finding process upon the other parties
  8. The prospects of a fair trial on the issue; and
  9. The justice of the case

In some cases the court may refuse to grant permission to withdraw an application and the case will progress to a fact finding hearing.

The local authority are obliged to identify whether it is obvious that the threshold cannot be satisfied or if there is a possibly that the threshold might be met.

The ‘possible’ test

In summary, where it is possible that the threshold could be established, the court must:

  1. Exercise discretion by reference to the 9 ACC factorsto determine whether a fact-finding should be conducted, and
  2. Cross-check the conclusion reached having regard to the best interest test under s.1 (1) of the Children Act 1989.

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