Local government – Care proceedings – Child abuse

Re L (a child) sub nom v (1) local authority (2) his guardian: CA (Civ Div) (Lords Justice Waller, Ward, Wall): 7 October 2009

The appellant mother (M) appealed against a decision refusing her permission to instruct an expert to conduct a risk assessment relating to her capacity to safely parent her young child (L).

When L was approximately six months old he had been admitted to hospital suffering from very serious multiple injuries. The local authority began care proceedings and asked the court to find that L’s injuries were non-accidental and sustained when he was in his parents’ care. M denied responsibility for L’s injuries and alleged that the bruising was accidental. A finding-of-fact hearing was held and the judge found that there had been a global family failure to protect L and that, in light of that and the rest of her judgment, the local authority was invited to draw up a timetable to bring the proceedings to a conclusion.

M applied for permission to instruct an expert to conduct an assessment but the judge found that there was no realistic possibility of an assessment being positive and the delay it would involve would be detrimental to L and she refused permission. Following the hearing, the judge learnt of a forthcoming criminal trial of M and L’s father concerning charges against them for their alleged mistreatment of L and she listed the final hearing in the care proceedings before that trial. M submitted that the judge’s refusal to allow the assessment had been procedurally unfair and wrong, as she had prejudged the outcome of the care proceedings and closed her mind to any outcome other than placement for adoption, and so had prevented M from placing relevant evidence before the court. M argued that the final ­hearing of the care proceedings should therefore be taken by a ­different judge.

Held: (1) The judge had concluded that the only possible outcome for the care proceedings was that L should be adopted. That demonstrated a misunderstanding of the split-hearing process. The judge’s function was to decide whether or not the threshold criteria under section 31 of the Children Act 1989 were satisfied and then make findings of fact upon which assessments of the parents could be made. It was not her function at that point to decide the outcome of the care proceedings, however clear she thought that outcome might be. Her refusal to order the assessment of M’s capacity to safely parent L was therefore wrong. It was not only unfair to M but the judge had prejudged the case at the finding-of-fact stage and imposed her premature assessment of the outcome of the care proceedings without giving M an opportunity to present her case fully to the court, Re M-H (a child) [2006] EWCA Civ 1864, (2007) 1 FLR 1715 considered.

Judges needed to take care when conducting split hearings in care proceedings. They needed to examine each case carefully to decide whether or not a split hearing was called for and to identify precisely the issues which needed to be decided at such hearings. A rigorous intellectual discipline was also required to be applied to those hearings so that the judge conducting it did not overstep the mark and answer questions more fitted to the welfare stage of the proceedings, when the judge considered the best or at least worst outcome for the child in light of the findings made and the assessments undertaken by others consequent upon the judge’s findings of fact. (2) The court had on numerous occasions reiterated the need for there to be close liaison between the court having the conduct of the care proceedings and the court having the conduct of concurrent criminal proceedings, Re W (children) (care order: sexual abuse) [2009] EWCA Civ 644, (2009) 2 Cr App R 23 considered. In the present case the outcome of the criminal trial was plainly relevant to the outcome of the care proceedings and the criminal proceedings were likely to throw up material, not currently available, which was likely to inform the final hearing of the care proceedings. The criminal proceedings should have been heard first. The judge’s decision could only be explained on the basis that she thought L’s parents were guilty and the outcome for the care proceedings inevitable. That was a further instance of the fact that she had prejudged the case.

(3) There were exceptions to the general rule that a trial should not resume before a different judge, including where one of the parties had lost confidence in the judge, Re B (children) (sexual abuse: standard of proof) [2008] UKHL 35, (2009) 1 AC 11 considered and Re G & B (children) [2009] EWCA Civ 10, (2009) 1 FLR 1145 followed. As a result, the perception of fairness required that the final hearing should be taken by a different judge.

Appeal allowed.

Robin Belben (instructed by Eric Robinson) for the appellant; Simon Miller (instructed by the in-house solicitor) for the respondents.