June 7, 2019
Family solicitor, Lina Khanom considers this recent Court of Appeal decision about threshold in care proceedings. This is an interesting case in which the Local Authority successfully appealed against the decision of HHJ Wicks who dismissed care proceedings at an interim procedural stage. The Court of Appeal determined that the Judge had erred in finding that threshold was not crossed and that he should not have summarily dismissed the proceedings. The case involves the welfare of two children, Lara and Nina who had the same mother but two different fathers. In May 2018 Nina stayed overnight with her father, was returned to her mother's care and then looked after by a family friend for the day. In the evening the mother noticed Nina's body was covered in bruises and took her to hospital where a paediatrician gave the opinion that it was highly likely the bruising was non-accidental. The Local Authority then insisted that the children moved to live with their respective fathers, despite the fact that Nina was in her father's care during a period when the injuries might have been inflicted. The mother reluctantly complied being unaware that the Local Authority was not entitled to insist. The Local Authority did not issue proceedings until 23 August 2018 when they sought interim supervision orders and an expeditious fact-finding hearing.At a hearing on 1 November a discussion about 'the relevant date' for proving threshold commenced. The Local Authority vacillated between submitting the relevant date was 14 May and the date of issuing proceedings (August). HHJ Wicks dismissed the proceedings in a reserved judgment given on 7 December. He amended the earlier orders (under the slip rule) which recited that interim threshold had been crossed and substituted recordings that threshold was in dispute. He considered that the relevant date for determining threshold was 23 August (date of issue) and that at that date the children were not suffering at risk of suffering significant harm. The Judge therefore based his decision that threshold was not crossed on the Local Authority's delay in issuing the proceedings and on arguments that Nina was said to be doing well in her father's care. The Judge also accepted an argument put on behalf of Nina's father that if the mother wished to resume care of the girls there would be private law proceedings and therein a fact-finding hearing in respect of Nina's injuries.The Court of Appeal held that the Judge erred in failing to recognise that threshold was plainly crossed on the basis that both children were likely to suffer significant harm arising from the clear evidence of injuries to Nina, for which one or other of her parents might have been shown to be responsible. Peter Jackson LJ considered that the Judge should not have cast doubt on the analysis of the Court of Appeal in Re S-W  EWCA Civ 27 which remains authoritative guidance of the summary determination of care proceedings. The Judge should also have cautioned himself against terminating the proceedings when the course did not have the support of the Guardian. Furthermore, "He should ultimately have seen the absurd impracticality of this unprecedented outcome, and the inappropriateness of private law proceedings as a surrogate forum for child protection."The case was remitted to a different judge for a hearing determining the causation of Nina's injuries. If you have a family case you need help with, contact Lina on firstname.lastname@example.org or to arrange an appointment, call Mavis on 020 8885 7986.
If you have a family case where you require some advice or representation, please contact Mavis for an appointment with a family solicitor on 020 8885 7986.