Where a local authority determines that the medical evidence falls short of proving that an injury to a child was deliberately inflicted, in what circumstances should it be allowed to withdraw its application?
This was the question for the Court of Appeal in the recent case of GC v A Local Authority (A Child) (Withdrawal of care proceedings)  EWCA Civ 848, an appeal from a first instance decision of HHJ Watson sitting at Coventry.
The law and procedure explained
In every case where a local authority wishes to remove a child from the care of its parents due to alleged abuse, the burden is on the local authority to prove that the abuse or harm was caused, and caused by the actions of the parents. The local authority must do that within court proceedings after it has made an application for either a care order (which gives the local authority parental responsibility alongside the parents and allows it to place the child in care) or a supervision order (which gives the local authority extra powers to support and monitor the family). Once the application has been made, the local authority cannot withdraw it from the court without permission from the Judge.
It is very common, in cases where a child has suffered an injury or some kind of physical abuse, for medical experts to provide their opinion as to how that injury may have been caused. Sometimes, the Judge will have to decide whether the injury was caused by one of the parents or another carer. In these circumstances, the Judge will need to carefully consider the expert evidence alongside the evidence from the parents and other witnesses in order to decide what has happened to the child and whether the child has suffered significant harm. This will then guide future decisions which need to be made, such as whether the child can continue to live with its parents or whether it needs to be moved to a different, safer environment.
In all care proceedings, the child or children are represented by an independent social worker from Cafcass who is appointed to advocate for their best interests in court. This person is known as the Children’s Guardian.
At the time care proceedings were initiated in January this year, G was nine months old and living with her mother and maternal grandparents. While caring for her on 3rd January 2020, the grandmother noticed a swelling to her head. She sought medical attention, at which point an examination revealed a fracture to the side of G’s skull and a subgaleal haematoma (a type of bruise or swelling) over the fracture site. None of the family members could provide an explanation for the injury, leading the treating doctors to conclude that it was likely to have been inflicted.
The Local Authority applied for – and obtained – first, an emergency protection order, followed by an interim care order. G and her mother were placed in a mother and baby foster placement, where they remained to the date of hearing.
Early within the proceedings, the only explanations given as possible causes of the injuries were that G had fallen off a bed on 12th December 2019, and that she had fallen from a toy truck shortly after Christmas.
The expert evidence
The parties commissioned expert evidence from Dr Dawn Saunders, consultant neuroradiologist, and Dr George Rylance, consultant paediatrician.
The expert opinion is set out in detail in the judgment, but can be summarised as follows:
- Both the fracture and haematoma probably occurred at the same time;
- Dr Saunders was of the view that they must have occurred within the period of ten days before the scan which took place on 4th January 2020;
- The bed fall was therefore too early to have caused the injuries;
- Dr Saunders believed that the truck fall was not a plausible cause;
- Dr Rylance believed that the haematoma (which was an obvious swelling at the time of hospitalisation) was likely to have been caused within the period of 24 hours before the afternoon of 3rd January 2020, and most likely on 3rd January itself, when G was in the sole care of her grandmother;
- However, it was possible that the haematoma had been slowly accumulating, and had not been seen until it had grown big enough to be noticeable, meaning it could have occurred earlier;
- Both experts concluded this was most likely to be an inflicted “non-accidental” injury.
Following receipt of the expert reports, the grandparents gave an account of G, on the morning of 3rd January, falling while pushing a baby walker and hitting her head on the side of a wooden table; it would not, perhaps, be unreasonable to speculate as to why this explanation was not forthcoming earlier.
Dr Saunders and Dr Rylance considered the new account in both written reports and at an experts’ meeting on 10th June 2020. Dr Saunders was of the view that the table bang was a “highly unlikely but possible” cause of the injuries. She felt she could not exclude it as a “remotely possible cause”. Dr Rylance believed it to be a “plausible cause” and said that he could not exclude it as being the reason for the injuries.
A case management hearing was listed to take place on 12th June 2020, just two days after the experts’ meeting. The day prior, the Local Authority gave notice that it intended to apply for permission to withdraw the application for a care order. This was – understandably – supported by the parents, but opposed by the Children’s Guardian on behalf of G. After hearing argument on behalf of all parties, HHJ Watson granted the Local Authority permission to withdraw their application.
First instance decision
We can see that the Judge placed significant weight on the expert opinion (as she had interpreted it) in deciding to allow the application for permission to withdraw. The following passages are set out in full within the appeal judgment:
- In the approved note of judgment, it is recorded that the judge observed that both Dr Saunders and Dr Rylance
“agreed that the likelihood was that both the fracture and the hematoma occurred during one incident and that they agreed the 24 hour window. That had a significant impact because during that time frame the child was being cared for by [maternal grandparents] who were more experienced, safe and mature carers for G. The case was not straightforward because the causation of the injury was unclear. There were no other features in this case that indicated that this was a non-accidental injury. Save for a lack of explanation.”
- The judge then set out the grandparents’ account of the fall onto the table and continued (according to the approved note of judgment):
“the parents were not looking after G during the period when this incident. On balance of probability the experts – a plausible explanation has been put forward by the grandparents as to how G sustained the injury.”
There follow these paragraphs in the approved note of judgment:
“Local authority have insufficient evidence to cross the threshold for the LA to continue with the advocation of their application. The current state of the evidence to suggest that the court should revisit this evidence by testing out the evidence of the lay parties – put on the court an impossible evidential burden – the court will not be in a better position than it is at the present time.
Parents are entitled to see the evidence put against them. They have met that case, there is no further evidence to meet. To expect them to go into the witness box is to reverse the burden of proof is contrary to the whole ethos of the stat of s.31 of CA.”
- Having referred to A Local Authority v DP, the judge concluded that:
“the evidential burden remains the same. It is not necessary, proportionate to pursue a fact find”.
The Children’s Guardian’s appealed the decision on behalf of G. Initially, this was opposed on behalf of the Local Authority, but, by the time of the appeal hearing, the Local Authority had conceded that HHJ Watson’s decision would not withstand scrutiny and therefore supported the appeal. It remained opposed by the parents.
The Children’s Guardian advanced the following grounds of appeal:
(1) The judge was wrong, in both fact and law, to determine the issue of threshold criteria summarily, without the benefit of hearing and testing the primary lay and expert evidence.
(2) The judge was wrong, in both fact and law, to take a narrow interpretation of the expert evidence without considering the wider purview of the expert position.
(3) The judge was wrong to conclude that the expert evidence could not satisfy the threshold criteria in s.31 of the Children Act 1989.
(4) The judge was wrong to confine her decisions to the facts of the threshold criteria. She should have looked at the wider picture of the child’s welfare.
(5) The judge failed to adequately scrutinise the child in need plan.
R.29.4(2) of the Family Procedure Rules provides that a local authority may only withdraw an application for a care order with the permission of the court. The circumstances in which such permission will be granted has been considered in a number of cases, which were helpful distilled by Baker LJ, delivering the lead judgment.
All applications fall in to two categories (Redbridge London Borough Council v B and C and A  EWHC 517 (Fam)):
- Where the local authority will be unable to satisfy the s.31(2) CA 1989 “threshold criteria” for making a care or supervision order; and
- Where, on the evidence, it is possible for the local authority to satisfy the threshold criteria.
To fall within the first category, the inability to satisfy the criteria must be obvious (Re J, A, M and X (Children)  EWHC 3741 (Fam)). If so, the application must succeed; there can be no successful objection to an application to withdraw care proceedings where the threshold for the making of an order will not be crossed.
For cases falling within the second category, any application to withdraw the proceedings must be determined by considering:
- Whether withdrawal of the care proceedings will promote or conflict with the welfare of the child concerned, the child’s welfare remaining paramount; and
- The overriding objective under r.1.1 of the Family Procedure Rules.
Baker LJ approved the factors identified in A County Council v DP  EWHC 1593 (Fam) as being relevant to the determination, and summarised them as follows:
- The necessity of the investigation and the relevance of the potential result to the future care plans for the child;
- The obligation to deal with cases justly;
- Whether the hearing would be proportionate to the nature, importance and complexity of the issues;
- The prospects of a fair trial of the issues and the impact of any fact-finding process on other parties;
- The time the investigation would take and the likely cost to public funds.
Interestingly, the Court of Appeal made no explicit reference to any human rights proportionality exercise in such decisions. Perhaps this is because the primary considerations which would weigh in the court’s mind when balancing the competing Article 6 (fair trial) and Article 8 (private and family life) are subsumed within the criteria set out above, together with references to necessity and proportionality.
The appeal was allowed. While HHJ Watson was entitled to take into account the Local Authority’s own assessment of the strength of its case, that was not the determining factor. She fell into error in her assessment of the medical evidence. She had incorrectly assessed this as being a case which fell into the first category, in which the Local Authority would be unable to prove to the requisite standard that the threshold criteria were met. The medical evidence, as it stood, did not exculpate the family members; it remained ambiguous. Even if the Judge had considered this to be a case falling within the second category, a proper analysis of the other relevant criteria should not have led to the decision that permission ought to be given to the Local Authority to withdraw its application.
Baker LJ reiterated, with reference to the case law, the importance within the judicial process of surveying the whole evidential canvas, rather than considering each individual piece of evidence in isolation. HHJ Watson ought to have heard the medical evidence (rather than simply relying on the written observations of the experts) and – crucially – weighed it alongside the evidence of the lay parties. Only then would she have been able to determine the events which were relevant to the threshold criteria:
34. 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.
It was also wrong for the Judge to have seemingly elevated the importance of the likelihood that the injury was sustained while the child was in the care of the grandparents, rather than the parents. The Court of Appeal pointed out that, even if this were found to be true, it did not necessarily preclude the possibility that the threshold criteria would be made out.
The appeal was allowed and the case remitted for a fact-finding hearing to take place in July.
While this, on any interpretation of the law, must be the correct outcome, it will of course be distressing for the family members who find themselves in this position. Perhaps it will cause local authorities to feel less able to exercise their own discretion as to how they pursue their applications in the future. Nevertheless, the Court of Appeal has reiterated that the decision in such situations is not to be made by the experts tasked with reporting in the proceedings, nor is it to be made by the applicant local authority, it remains solely a judicial function. And where the Judge makes a wrong decision, the Court of Appeal will not hesitate to step in and correct it.
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