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C (A Child - Application for dismissal or withdrawal of proceedings) (No. 3) [2017] EWFC 37

Local Authority’s application for the dismissal of public law proceedings in circumstances in which it pleaded that the threshold cannot be evidenced. Mrs Justice Pauffley rejected the local authority’s application.

The London Borough of Tower Hamlets applied for the summary dismissal, and in the alternative, permission to withdraw their application in public law children proceedings. The local authority's application followed the decision in Re C (A Child) No.2 (Application for Public Interest Immunity) [2017] EWHC 692 (Fam), in which the Secretary of State for the Home Department had succeeded in their application for Public Interest Immunity. The local authority argued that in light of that decision they could not meet the evidential burden in order to satisfy the s.31(2) threshold criteria.

The proceedings concerned a family where there was an alleged risk of radicalisation. The parents' care of their children had been observed to be good. However, the potential risk arose from the parents' alleged extremist mind-set, terrorist sympathies and desire to exit the country with the child and travel to a war zone.

As a result, the Counter Terrorism Command within the Metropolitan Police, 'SO15', had been investigating the family and it was SO15's evidence gathering which had in part been subject to the Public Interest Immunity.

The London Borough of Tower Hamlets were supported in their applications by each of the parents. The Guardian opposed the application arguing that there is an inherent incongruity in one arm of the State (namely 'SO15' and the Home Office) maintaining that the father is a terrorist with an Islamist extremist mind-set, whilst another (the local authority) contends it is powerless to take any step so as to protect the welfare of the child.

There was debate on the procedural differences between, and appropriateness of, an application for dismissal as opposed to permission to withdraw in the context of children cases at paragraphs 22 to 38. Pauffley J commented that the concept of summary dismissal is "alien" to public law cases involving children given the court's statutory duty is to regard the interests of children as paramount and that the judge's role is essentially inquisitorial [41-42]. For these reasons, the Court rejected the local authority's summary dismissal application.

As to permission to withdraw, Pauffley J undertook an analysis of the applicable principles as set out by McFarlane J (as he then was) in A County Council v. DP, RS, BS [2005] EWHC 1593. Applying each of the nine factors in 'the McFarlane checklist' [53-72], Pauffley J ultimately refused the local authority permission to withdraw proceedings. To do so would "deny this child justice", commented Pauffley J [73]. 

Summary by Patrick Paisley  barrister, 1 Garden Court Family Law Chambers

_________

Neutral Citation Number: [2017] EWFC 37
Case No: ZE16C00518

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 27/06/2017

Before :

MRS JUSTICE PAUFFLEY

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Between:

The London Borough of Tower Hamlets
 
- and - 
M
and
F
and
C (a child by his guardian ad litem) 
  
Re C (A Child) No. 3 – (Application for dismissal or withdrawal of proceedings)
 
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Steven Ashworth (instructed by Director of Law and Governance, LB Tower Hamlets) for the Applicant
Chris Barnes (instructed by FMW Law) for the mother
Mark Twomey QC
and Kieran Pugh (instructed by Warrens Family Law) for the father
Tim Parker
(instructed by Gary Jacobs and Co.,) for the Children's Guardian

Hearing date: 20 June 2017
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Judgment approved by the court for handing down (subject to editorial corrections)

Mrs Justice Pauffley :
The issue

1. The local authority, supported unsurprisingly by both the mother and father of the subject child, invite me to either dismiss the proceedings or permit their withdrawal. The Children's Guardian resists that application making the potent point that there would be an inherent incongruity in one arm of the State (namely the Counter Terrorism Command within the Metropolitan Police 'SO15' and the Home Office) maintaining that the father is a terrorist with an Islamist extremist mind set whilst another (the local authority and the court) appears powerless to take any step so as to protect the welfare interests of the child.

2. The facts which gave rise to the application for a public law order are related in my earlier judgments, Re C (A Child) [2016] EWHC 3171 (Fam) and Re C (A Child) No.2 (Application for Public Interest Immunity) [2017] EWHC 692 (Fam).

Parties' positions

3. The local authority considered its position following the outcome of the application by the Secretary of State for the Home Office (SSHD) for PII. On 2 May 2017, a lengthy document entitled 'Local Authority's Position in relation to Threshold' was submitted by Mr Ashworth on behalf of the London Borough of Tower Hamlets. Within that document, he sought to argue that the evidence before the court is or would be insufficient to establish the s.31 (2) threshold criteria on the balance of probabilities. From page 2 to page 13 he identified a number of evidential matters potentially supportive of the assertions that (i) the father has an Islamist extremist mind set; he has travelled to Syria on more than one occasion where he received military training and fought with an Islamist extremist group; (ii) the mother shares the father's Islamist extremist mind set and is supportive of the terrorist-related activities in which he has participated; she is therefore unable or unwilling to protect the child; (iii) the father and mother harbour aspirations to take the child to Syria and he is at risk of being taken to a war zone; and (iv) there is a likelihood that the child will suffer significant physical, emotional and developmental harm if the matters alleged against the parents are proven.

4. Interspersed amongst Mr Ashworth's very helpful analysis of the voluminous material are no fewer than 9 inferences which could potentially be drawn, adverse to the parents. He suggested it would be difficult for the court to draw many or all of the potential inferences without straining the evidence to an impermissible degree.

5. In his initial document, Mr Ashworth had stated that the local authority would not be in a position to call witnesses to prove a case on threshold. He asserts that, at its highest, the threshold relies extensively on hearsay evidence and assessments made by others. During oral submissions, Mr Ashworth modified his position on witnesses indicating that a police officer attached to the Safeguarding Team within SO15 – who has already supplied a statement – could be a witness, so too the allocated social worker who, in July 2016, produced a lengthy analysis of the available material suggestive that the child may be at risk of suffering significant harm.

6. I would observe that there is the potential for several other witnesses as well. Those who, in June 2014, dealt with the father's interview under Schedule 7 of the Terrorism Act 2000, and the two police officers who, in January 2016, apprehended and interviewed the mother pursuant to Schedule 7. All of those have made statements, already filed in these proceedings.

7. Mr Ashworth acknowledges that the lies told by the parents might lead to the drawing of permissible inferences but reminds me that the judge would have to give himself a Lucas direction and then exercise "great caution" when considering "how far any inferences might go." He reminded me in oral argument that the mother's response to admitted lies about her final destination when she flew to Barcelona in January 2016 was that she had panicked because she was worried she would not be permitted to fly to Turkey to join her husband for a family holiday. I would only comment that the court would surely have a duty to consider all aspects of the mother's lies to the police at the airport, how and why she reacted as she did before coming to a concluded view as to whether inferences could legitimately be drawn. 

8. In relation to the decision made by the Home Office that the father's application for a passport should be refused, Mr Ashworth submits that although the assessment of the SSHD and her officials could potentially be attributed some weight by the court, the upholding of the SSHD's claim for PII means there is no primary evidence before the court to underpin that assessment. That is correct.

9. As for the way in which hearsay evidence should be treated, Mr Ashworth referred to the decision in Re J [2015] EWCA Civ 222 relying upon the proposition that – "Hearsay evidence … although admissible, has strict limitations if a parent challenges the hearsay evidence by giving contrary oral evidence at a hearing. If the local authority is unwilling or unable to produce a witness who can speak to the relevant matter by first hand evidence, it may find itself in 'great or even insuperable' difficulties in proving the fact or matter alleged by the local authority which is challenged."

10. I pause to observe that here the evidence against the parents as it emerges from the papers does not exclusively, or even largely, rest on hearsay. I believe it was a correct analysis when, in the March judgment, I referred to it as "a mixture of established facts as well as matters which give rise to likely inferences." In any event, judges in the Family Court routinely confront hearsay evidence (for example in cases where sexual abuse is alleged) and are well aware of the need to exercise great caution as they weigh that evidence alongside everything else known within the proceedings.

11. Mr Ashworth drew my attention to those passages of the police statements and in the letter from the Passport Office where it is said, "Information suggests the following …" in support of his hypothesis that there is not sufficient evidence to satisfy the threshold criteria. I quite accept that by reason of the outcome of the SSHD's application for PII, there will be no more illumination as to the material underpinning those assessments. But the question of the weight to be attached to that material, if I were to decide the proceedings should lead to a fact finding hearing, would surely be a matter for the trial judge. His duty would be to survey the 'wide canvas' of material from all sources (and of whichever quality) before arriving at his eventual conclusions.

12. Upon a detailed scrutiny of the whole of the available evidence, Mr Ashworth contends there is no realistic prospect of the local authority being able to satisfy the court that the threshold criteria are established to the required standard of proof. He suggests that unless the parents make significant admissions when they give evidence (and they are of course compellable), the threshold criteria are unlikely to be established on the balance of probabilities.

13. It is also a factor, in the view of the local authority, that the parents have been very cooperative and fully engaged with the supervising social workers. There are no concerns about the way in which they have been looking after their child. He has been the subject of a Child in Need plan since January 2016. I would observe, however, that by reason of the status of the proceedings and the parents' denial that in any sense there is justification for them, there has been no direct work (as Mr Ashworth confirms is the case) in relation to alleged extremist views. And, for the much the same reasons, there has been no attempt made to seek to engage the parents in the Channel Programme. For the moment, of course, there is no foundation for the making of such a request for engagement.

14. Mr Ashworth makes clear that in the event I were not persuaded to summarily dismiss the proceedings, the local authority would invite me to grant permission for their withdrawal.

15. The mother's position is that she agrees the proceedings should be brought to a conclusion. It is Mr Barnes' over-arching submission that the interests of the child are not served by extending the court process in circumstances where the local authority has concluded that there is no real likelihood that it can discharge the evidential burden necessary to satisfy threshold. He argues that the imperative for proceedings to conclude is especially strong where they have already been on foot for some 11 months and where, during that period of intense scrutiny, no additional welfare concerns have arisen.

16. Mr Barnes accepts that it is for the court to consider, on the basis of submissions by the local authority and the Children's Guardian, as to whether the case continues. He emphasised however that there is or may be a difficulty, were the case to proceed, in achieving fairness. That is because in relation to decisions made by others about the assessment of risk, it will not be possible for witnesses to be called to describe how those decisions have been made. He seeks to argue that, accordingly, the case should not continue.

17. In response to that submission, I emphasise that judges are alert always to the need to be fair. They are acutely conscious of the distinction between the various categories of evidence – for example, first hand (direct), circumstantial and hearsay evidence. They are properly to be regarded as specialists in knowing how to weigh the several types of material to achieve a fair and just result. That is what they do. It is the very essence of judging.

18. Mr Twomey QC on behalf of the father suggests it is a matter of significance that the local authority maintains it would fail to establish the threshold criteria. He invites me to bring the proceedings to an end at this hearing whether by dismissal or withdrawal. He submits that the local authority's analysis of the available material has been "careful, detailed and robust" and that there would "rarely if ever be a solid advantage to a child" in proceeding with the application "where there is no prospect of succeeding in proving the threshold criteria."

19. Mr Twomey accepts that it is for the court to be satisfied that the proceedings should be either dismissed or withdrawn; and he made clear that if I were to conclude there is a solid advantage to the child in the case continuing then the father will cooperate fully in what he hopes will be a relatively swift process.

20. On behalf of the Children's Guardian, Mr Parker's position is that (a) it is arguable that the evidence does meet the threshold; (b) the court and not the parties should be the decision maker; (c) the decision at the end of the threshold hearing will better inform any further work by the local authority or other agency; (d) if the threshold is met, subject to any assessment then undertaken, the Children's Guardian is likely to recommend a supervision order; and (e) if the threshold is not met, the content of the fact finding judgment could inform any voluntary measure which might be put in place to safeguard the child.

21. Although Mr Parker accepts the potential for facts not being found, it is, he says, essential that conclusions one way or the other are drawn. Even although the Channel Programme relies upon voluntary participation, it would have to know the basis upon which its involvement was sought. Mr Parker pays tribute to Mr Ashworth's analysis of the material resulting in the inferences suggested. He submits that is where the local authority's role should end – the court's decision making function then comes centre stage.

Dismissal or withdrawal – the argument

22. I must tackle the issue as to whether, in the event I were persuaded the proceedings should go no further, they should be dismissed. Mr Ashworth, if I may say so, mounted a valiant, thorough and intricately detailed argument in favour of dismissal.

23. He began by relying upon r.1.2 of the Family Procedure Rules 2010 (FPR) – "the court must seek to give effect to the overriding objective when it exercises any power given to it by these rules, or interprets any rule." The overriding objective is defined in r.1.1 as dealing with cases justly, having regard to any welfare issues involved. "Dealing with a case justly includes, so far as is practicable:

(a) ensuring that it is dealt with expeditiously and fairly;

(b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;

(c) ensuring that the parties are on an equal footing;

(d) saving expense; and

(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases."

24. Moreover, applying r.1.4(2)(c) – the court's duty to further the overriding objective by actively managing cases, includes "deciding promptly (i) which issues need full investigation and hearing and which do not; and (ii) the procedure to be followed in the case." The court's broad general case management powers are contained in Part 4 of the FPR 2010, with provisions of particular relevance at r.4.1(3). Pursuant to r.4.1(3)(m) "the court may dismiss or give a decision on an application after a decision on a preliminary issue."

25. Mr Ashworth cited the commentary to r.12.21 ("Hearings") in the Family Court Practice 2017 wherein it is stated that there can be limited situations in which the application before the court has so remote a prospect of a positive outcome that it is wrong to allow it to go any further and the appropriate course is to dismiss it without hearing oral evidence or further investigation. The cases cited are Cheshire County Council v. M [1993] 1 FLR 463, FD; and W v. Ealing Borough Council [1993] 2 FLR 788, CA.

26. Mr Ashworth acknowledges, however, that neither decision was a dismissal of care proceedings. In Cheshire County Council v. M, the court dismissed the father's application for a contact order under the Children Act following wardship proceedings. The Court of Appeal in W v. Ealing Borough Council concluded that Cheshire County Council v. M was correctly decided but that the approach it enjoins will apply only in that limited class of case. However, Sir Stephen Brown P continued –

"We reject Mr Munby's contention that an applicant in all applications for which leave is not required is entitled to a full trial unless only the respondent can satisfy the stringent test required to justify striking out proceedings in ordinary civil litigation. In the first place, as Balcombe LJ said in the passage already cited from Re A and W [(Minors) (Residence Order: Leave to Apply) [1992] Fam 182, [1992] 2 FLR 154]: 'this is not ordinary civil litigation: it concerns children. In our judgment that is a salutary observation and it would be unwise in this jurisdiction to seek to restrict the discretion of the court by imposing a rigid formula upon the conduct of proceedings."

27. The Family Court Practice 2017 commentary to r.12.21 continues (with Mr Ashworth's emphasis added):

"In cases that do not fall within the limited Cheshire County Council v. M category, the court nonetheless has a broad discretion to conduct the case as is most appropriate for the issues involved and the evidence available (Re C (Contact: Conduct of Hearings) [2006] 2 FLR 289, CA). Indeed, the overriding objective in FPR 2010, r.1.1(2)(b) requires the court to deal with cases in ways that are proportionate to the nature, importance and complexity of the issues. In family proceedings, a judge has an inquisitorial role and his duty is to further the welfare of the children, which is his paramount consideration. For that reason, he exercises a far broader discretion than in a civil jurisdiction to determine how an application should be pursued – (Re C (Family Proceedings: Case Management) [2013] 1 FLR 1089, CA). It will not necessarily hold a full hearing with the parties permitted to call oral evidence and cross-examine any witnesses they may choose. Applications for child arrangements orders to determine with whom a child will live, care orders or for the revocation of a care order are likely to be decided on full oral evidence, although not invariably; applications for contact may be and are heard sometimes with, and sometimes without, oral evidence or with a limited amount of oral evidence."

28. In Re C (Contact: Conduct of Hearings) [2006] 2 FLR 289, Wilson LJ (as he then was) referred to the following passage from Butler Sloss LJ in Re B (Minors) (Contact) [1994] 2 FLR 1, which he described as "generally regarded as of supreme value for judges exercising jurisdiction in relation to children" –

"In my view a judge in family cases has a much broader discretion both under the Children Act 1989 and previously to conduct the case as is most appropriate for the issues involved and the evidence available (see the judgment of Sir Stephen Brown P in W v. Ealing Borough Council (above)). There is a spectrum of procedure for family cases from the ex parte application on minimal evidence to the full and detailed investigations on oral evidence which may be prolonged. Where on that spectrum a judge decides a particular application should be placed is a matter for his discretion. Applications for residence orders or for committal to the care of a local authority or revocation of a care order are likely to be decided on full evidence, but not invariably. Such is not the case on contact applications which may be and are heard sometimes with and sometimes without oral evidence or with a limited amount of oral evidence.

" … The considerations which should weigh with the court include:

(1) whether there is sufficient evidence upon which to make the relevant decision;

(2) whether the proposed evidence (which should be available at least in outline) which the applicant for a full trial wishes to adduce is likely to affect the outcome of the proceedings;

(3) whether the opportunity [to] cross-examine the witnesses for the local authority, in particular in this case the expert witnesses, is likely to affect the outcome of the proceedings;

(4) the welfare of the child and the effect of further litigation – whether the delay in itself will be so detrimental to the child's wellbeing that exceptionally there should not be a full hearing. This may be because of the urgent need to place the child, or as is alleged in this case, the emotional stress suffered by both children …;

(5) the prospects of success of the applicant for a full trial;

(6) does the justice of the case require a full investigation with oral evidence?"

29. Mr Ashworth accepted that some of the above factors are not entirely on point with the present case, not least because it is the applicant local authority requesting that its own application be dismissed. He suggests, however, that the correct question to be considered is whether the justice of this case requires a full investigation with oral evidence and the answer to that question, he submits, is no.

30. Mr Ashworth referred to the more recent case of Re C (Family Proceedings: Case Management) [2013] 1 FLR 1089, where the Court of Appeal dismissed the father's appeal against the decision of a judge to stop proceedings partway through the father's evidence, finding that he had failed to demonstrate real evidence of neglect and cause for changing the residence of the children. Munby LJ (as he then was) made the following observations:

[14] "It is important to recognise the nature of the proceedings before [the circuit judge]. These were family proceedings, not ordinary civil proceedings where the function of the judge is in large part to act as the umpire determining the competing cases put before him by the litigants. In ordinary civil litigation the circumstances in which a judge can prematurely stop a case are limited, albeit less limited now in accordance with the Civil Procedure Rules 1998 than was once upon a time the case. But these are not ordinary civil proceedings, they are family proceedings, where it is fundamental that the judge has an essentially inquisitorial role, his duty being to further the welfare of the children which is, by statute, his paramount consideration. It has long been recognised – and authority need not be quoted for this proposition – that for this reason a judge exercising the family jurisdiction has a much broader discretion than he would in the civil jurisdiction to determine the way in which an application of the kind being made by the father should be pursued. In an appropriate case he can summarily dismiss the application as being, if not groundless, lacking enough merit to justify pursuing the matter. He may determine that the matter is one to be dealt with on the basis of written evidence and oral submissions without the need for oral evidence. He may, as [the circuit judge] did in the present case, decide to hear the evidence of the applicant and then take stock of where the matter stands at the end of the evidence."

[15] "The judge in such a situation will always be concerned to ask himself: is there some solid reason in the interests of the children why I should embark upon, or having embarked upon, why I should continue exploring the matters which one or other of the parents seeks to raise. If there is or may be solid advantage in the children in doing so, then the inquiry will proceed, albeit it may be on the basis of submissions rather than evidence. But if the judge is satisfied that no advantage to the children is going to be obtained by continuing the investigation further, then it is perfectly within his case management powers and the proper exercise of his discretion so to decide and to determine that the proceedings should go no further."

31. It is submitted that there is no principled reason why the above observations should not apply equally in care proceedings and to consideration of whether the threshold criteria a capable of being established to the required evidential standard.

32. Moreover, relying upon the dicta of Hale LJ (as she then was) In the matter of H (Children) [2002] EWCA Civ 1692, and associating himself with Mr Twomey's written submissions, Mr Ashworth suggests there is no impediment, were I so minded, to find that this is a case which has no prospect of success and go on to direct that it should be summarily dismissed.

33. Mr Twomey was right to draw my attention to the notes within the Family Court Practice 2017 wherein it is said that In the matter of H (Children) is authority for the proposition that the court should not proceed summarily to dismiss care proceedings. Mr Twomey points out that Hale LJ reviewed the trial judge's assessment that part of the threshold "had no real prospects of success." She went on to undertake the exercise of evaluating the evidence herself, decided the trial judge had wrongly concluded that the two issues of threshold could not be established and allowed the appeal. Mr Twomey accordingly submits that in this instance it is open to me, should I be so minded, to dismiss the local authority's application.

34. I am bound to say that Mr Twomey's submission, in this regard, strikes me as tenuous in the extreme. Towards the very end of Hale LJ's judgment she says this – "…it seems to me that this is not a case which should have been summarily dismissed. These are highly material questions, whichever way they are decided. They are highly material to the future welfare of G and perhaps other children as well. The guardian … wishes to have them ventilated and, in my judgment they should be ventilated."

35. I do not accept that the authors of the Family Court Practice are wrong when they indicate that In the matter of H is authority for the proposition that the court should not summarily dismiss care proceedings. 

36. I was interested to know why the local authority had invested effort in seeking to persuade me that summary dismissal was the appropriate route for bringing the proceedings to an end rather than withdrawal. Mr Ashworth began by stating this was an unusual case in which the local authority was not in possession of its own evidence and had been relying upon the assessments of others in relation to the issue of risk. When pressed for the reason, Mr Ashworth frankly conceded that it was because the local authority wished the court to be at the forefront in terms of responsibility for decision making.

37. Mr Verdan QC and Mr Barnes on behalf of the mother caution against some form of summary dismissal and suggest instead that the local authority should be treated as if it were applying to withdraw. Indeed they suggest it is not clear that a procedure for some form of summary dismissal is available in family proceedings.

38. Mr Parker agrees with Mr Verdan and Mr Barnes. Mr Parker advises that the appropriate procedure by which the court should decide the local authority's application is set out within r. 29.4 of the Family Procedure Rules. Rule 29.4(1)(b) applies the rule to care proceedings or indeed any application concerning the upbringing of a child. Pursuant to r.29.4(2) an application may only be withdrawn with the permission of the court.

Dismissal or withdrawal – discussion and conclusion

39. I am entirely satisfied that Mr Verdan, Mr Barnes and Mr Parker are correct in saying that the appropriate course is to consider withdrawal rather than some kind of summary dismissal. And although it might be said, with justification, that this is a distinction without any real difference, the point would seem to have assumed some real importance to the local authority. Accordingly, I should explain my reasons.

40. It is instructive, to my mind, to consider that these are not civil but family proceedings. Rule 3.4 of the Civil Procedure Rules (CPR) enables the court to strike out the whole or part of a statement of case which discloses no reasonable grounds for bringing or defending a claim (rule 3.4(2)(a)), or which is an abuse of the process of the court or otherwise likely to obstruct the just disposal of the proceedings  (rule 3.4(2)(b)). There is an equivalent to CPR r.3.4 in FPR r.4.4 but care proceedings, as well as other claims brought under Parts 12 to 14 of the FPR, are explicitly excluded from r.4.4, to my mind, for good reason.

41. The very language of summary dismissal is, I would observe, alien in the environment of public law cases involving children. The court's statutory duty is to regard the interests of children as paramount. The notion that one party's case could be summarily dismissed does not, to my mind, gain traction.

42. As Munby LJ said in Re C (Family Proceedings: Case Management (supra) it is "fundamental that the judge has an essentially inquisitorial role, his duty being to further the welfare of children which is, by statute, his paramount consideration." The suggestion that summary dismissal may be appropriate in public law cases involving the welfare of children runs counter to the notion that the judge's role is essentially inquisitorial.

43. It is no accident that the editors of the Family Court Practice consider In the matter of H (Children) to be authority for the proposition that judges should not summarily dismiss care proceedings (although Hale LJ's judgment was comparatively short and would appear to have related to that case alone). I have explained why I regarded Mr Twomey's suggestions as tenuous in the extreme.

44. The last thing to be said is that the local authority's decision in arguing for summary dismissal, rather than seeking to withdraw, seems to me to demonstrate a certain feebleness. My sense is that the local authority 'wants out' of the case and views the best way of achieving that ambition as asking me to make the definitive decision to dismiss it. An application for permission to withdraw connotes that the local authority has itself taken the decision not to proceed whereas summary dismissal places the local authority at some distance from the determination.

45. I need go no further in describing why I should treat the local authority as applying to withdraw the proceedings having rejected its application for summary dismissal.

Factors to be considered upon a withdrawal application

46. Helpfully, Mr Verdan and Mr Barnes drew attention to Cobb J's decision in J, A, M and X (Children) [2014] EWHC 4648 (Fam) mapping the two distinct procedural routes which the court might take upon an application to withdraw.

47. The first would apply where "the inability of the local authority to demonstrate facts to cross threshold (is) obvious" [30] – the court should proceed on the basis outlined by Hedley J in Redbridge London Borough Council v B, C and A [2011] 2 FLR 117 with a limited enquiry focussed on the fact that the threshold cannot be satisfied. The second pathway applies where there is at least arguably a case that the threshold can be met. In that circumstance, the applicable principles are as set out by McFarlane J (as he then was) in A County Council v. DP, RS, BS (By the Children's Guardian) [2005] EWHC 1593.

48. FPR r.29.4(1)(b) applies the rule to care proceedings (i.e. FPR Part 12 proceedings) or indeed any application concerning the upbringing of a child.  FPR r.29.4(2) provides that an application may only be withdrawn with the permission of the Court.

49. Mr Parker suggests it is not clear whether this is a decision in which the welfare of the child is paramount and draws my attention to the following –

(a) The authors of the Family Court Practice 2017 consider that this is a decision to which the paramountcy principle applies.

(b) In Redbridge Borough Council v B, C & A [2011] 2 FLR 117 Hedley J held at para 9 that where threshold could be established the withdrawal application "would depend upon the Court concluding under s.1(5) Children Act that no order was necessary; that is to say on the basis that withdrawal was consistent with (my emphasis) the welfare needs of [the child]".

(c) In A County Council v DP, RS & Ors [2005] EWHC 1593 (Fam): McFarlane J held (at para 24), on his analysis of the authorities, that the interests of the child were relevant but not paramount (albeit pre FPR 2010); and

(d) In Lancashire County Council v NG, DG & Ors [2013] EWHC 4648 (Fam) Cobb J (at para 35) added a cross-check against welfare.

50. Mr Parker suggests, and I entirely agree, given that FPR r.29 applies to any application concerning the upbringing of a child, the paramountcy principle should (indeed I would say must) apply. With that modification, he invites me to treat this as a case where threshold is provable and therefore to consider the 'McFarlane checklist' from para 34 of his judgment as follows –

a) The interests of the child;

b) The time that the investigation will take;

c) The likely cost to public funds;

d) The evidential result;

e) The necessity or otherwise of the investigation;

f) The relevance of the potential result of the investigation to the future care plans for the child;

g) The impact of any fact finding process upon the other parties;

h) The prospects of a fair trial on the issue;

i) The justice of the case.

51. Cobb J also considered that the court "should cross check the conclusion (reached) having regard to the straight best interests test under s.1(1): see also the decision of Bracewell J in Re N (Leave to Withdraw Care Proceedings [2000] 1 FLR 134."

Overall outcome - discussion and conclusion

52. I propose to take each of those 'checklist' matters in turn. In combination they lead me to the conclusion that the local authority's application must fail. There is indeed, in my assessment a solid advantage to the child in these proceedings continuing so that a judge can resolve the case on threshold. Moreover, there is the potential for very serious harm arising to the child if the proceedings were to be stopped in their tracks now.  A fact finding exercise should be listed at the earliest opportunity before a judge of the Division. I estimate, but others may disagree, that about 5 days will be needed.

Interests of the child

53. Mr Verdan and Mr Barnes submit that C's interests are not served by extending proceedings – which involve a continuing significant intrusion into his and his parents' lives – in circumstances where the local authority has concluded there is no real likelihood that it can discharge the evidential burden necessary to satisfy threshold. Mr Parker suggests it is in the child's best interests for the court to establish whether or not the parents hold extremist beliefs and their willingness to act in accordance with them. He adds that if proven, the matters pleaded within the likely threshold document would point towards parents who pose a significant risk of harm to their child.

54. In my assessment it is essential in this child's interests for the court to resolve the issues in dispute, one way or the other, by holding a fact finding exercise. Either there is a firm basis for finding, on the balance of probabilities, that the parents represent the risks to their child's welfare identified within Mr Ashworth's analysis (see paragraph 3 above) or there is not. Suspicion, quite obviously, would not be enough. It should be for a judge, the essential decision maker, to analyse and weigh all the available material, consider the parents' responses to it and determine whether there is a likelihood that in their care the child would be exposed to the risk of harm. The judge would have to decide whether the parents hold extremist Islamist mind-sets, whether they are supportive of terrorist-related activities in which the father has participated, whether the father has travelled to Syria where he received military training and fought with an Islamist extremist group and whether the parents harbour aspirations to take the child to Syria or other war zones. The judge would also determine whether the parents or either of them were unable or unwilling to protect the child from harm.

The time the investigation will take

55.  Of course I recognise that the proceedings are already 11 months old. A large part of the reasons for delay lie in the unavoidably protracted disclosure exercise involving the SSHD. Thankfully, from the child's perspective, the impact of the delay has been minimal. At his age, looked after continuously by his parents as he has been, the disturbance caused by the pending application has been limited to the effect upon him of the likely adverse emotional impact upon his parents.

56. The various witnesses (police and one social worker as well as the parents) will be required to give evidence. The judge will need time to read and absorb the papers. Mr Verdan and Mr Barnes suggest the inevitable delay in fixing the case for hearing is complicated by the need to reallocate as the result of my unavailability. I do not accept that the difficulties in listing will be made any more troublesome as the result of the need to identify another judge.

57. It is not a reason to permit withdrawal that the proceedings have already taken a long while and will now endure for several months more. The critical purpose of care proceedings of this kind is to establish if a child is at risk and, if so, how to mitigate that risk. The twin aims of achieving justice and securing children's welfare are more important than speed.

Likely cost to public funds

58. Though Mr Verdan and Mr Barnes are correct in maintaining that the cost would be considerable, I agree with Mr Parker's submission that the drain on public funds would be proportionate, given the serious risks posed to the child if the allegations are substantiated.

The evidential result

59. Within the judgment of 31 March 2017, I devoted a section, between paragraphs 42 and 48 to what I described as 'Other available evidence.' In paragraph 45 I summarised the nature of the evidence thus – "It amounts to a mixture of established facts as well as matters which give rise to likely inferences. It is unnecessary to descend into the particulars beyond observing that both parents have been stopped at airports (father in June 2014 and February 2016; mother in January 2016) and questioned pursuant to Schedule 7 of the Terrorism Act 2000. A police officer from the Safeguarding Unit of the Metropolitan Police Service Counter Terrorism Command (SO15) has made a statement. So, too, other officers who conducted the port stops and interviews."

60. I went on to consider and agree with Ms Wheeler's suggestions that various items within the material supplied – the refusal by HM Passport Office of the father's application for a replacement passport; the Home Secretary's decision to exercise the Royal Prerogative to refuse the father a replacement passport and the absence of any challenge to that decision in the Administrative Court – can and should be taken into account as part of the evidential picture.

61. Mr Barnes makes the legitimate point that there is "a tension between the two judgments" as regards my observations upon the evidence. In the first, I emphasised the requirement for evidence underpinning assessment (see paragraphs 36 to 43). I said that "unless there was a disclosure mechanism for receiving and considering relevant, highly sensitive material from the SSHD then it was difficult to envisage a future for this application." Whereas, in the second (between paragraphs 42 to 48), I associated myself with the submissions made by Ms Wheeler QC on behalf of the SSHD as to the existence of available evidence from which the court may be able to draw inferences and find the threshold criteria satisfied.

62. The explanation for my divergent views is simply this – my position shifted as the result of the PII hearing and the persuasive, analytical arguments advanced by Ms Wheeler. As I said during this hearing, I am only human; and would add that I must be entitled to view matters differently in circumstances which have developed over time.

63. I do not agree with those who contend that the evidential result is ultimately highly likely to be a conclusion that the threshold is not satisfied. On the basis of the material, such as it is, it would be quite impossible to say that. I am unimpressed with the local authority's assessment that there is insufficient to carry the case across the threshold. The evidence should be considered in all its forms by a judge and then an informed, fair and balanced decision will be taken.

64. Mr Parker suggests that the primary source material is limited broadly to the father's Terrorism Act conviction (which he seeks to blame on poor legal advice), the photographs (of the father posing with guns in front of what are said to be Islamic State flags) and alleged lies told by the parents in relation to travel and other plans. I agree that the court will need to analyse the plausibility of the father's evidence in relation to his conviction and scrutinise the photographs as well as the explanations given for them (said to be an interest in hunting). A similar exercise would have to be undertaken in relation to the mother's evidence and the reasons she puts forward for lying to police about her destination when leaving Gatwick with the child in January 2016.

65. What I cannot forecast is how any fact finding exercise would end. All I can say is that I am not persuaded there is so little of any evidential value that it would be appropriate, in this child's interests, to permit the withdrawal of the application. After all, I have made successive s.38 interim findings, with the encouragement of the local authority, so as to found interim supervision orders. In other words, I have expressed myself satisfied there is reasonable cause to believe that if an interim order were not made, the child would be at risk of significant harm. To come to a view that the evidence upon which the interim orders were founded has so many integral flaws or was so unreliable that I should now allow the local authority to withdraw its application seems illogical, if not nonsensical.

Necessity or otherwise of the investigation

66. Dependent upon the outcome of the fact finding exercise, and assuming for present purposes that the threshold is crossed, it will be possible to undertake an assessment of risk. Those, including the local authority, who seek to argue that because the parents' care of their child has been observed to be very good are rather missing the point of these proceedings. This is not a neglect or physical abuse case. The risk is that by reason of his parents' alleged extremist mind-set, terrorist sympathies and desire to exit this country with the child and travel to a war zone they represent a danger to this child.

67. The investigation is to my mind entirely necessary.

Relevance of the result to future care plans

68. The outcome of any fact finding exercise would be pivotal in planning for the welfare needs of the child. Assuming that conclusions were drawn, adverse to the parents, an assessment of the extent to which they are able to acknowledge the risks they pose to their child and their willingness to accept assistance from those agencies would be possible.  Even although the Channel Programme is voluntary, the local authority would be able to help in firstly accessing the programme and then monitoring progress.

69. It would also be possible, again assuming that the threshold is crossed, to continue the restrictions upon the mother's access to her passport and that of the child thus preventing travel to war zones.

70. Mr Verdan and Mr Barnes suggest that in the unlikely event the threshold were to be crossed, there is no real prospect that the local authority would seek to remove the child from his parents given the universally positive reports relating to their parenting. They argue that accordingly the relevance of any finding would be diminished. My response to that is that at this stage – prior to fact finding and expert assessment – it is simply too soon to know what public law orders might be called for.

Fair trial

71. I have no doubt whatever that all the parties would secure a fair trial. It seems altogether likely that, just as now, both parents will have Leading as well as Junior Counsel. It will be for the local authority to decide whether to once more instruct Leading Counsel as it has done for several of the earlier hearings. Mr Parker's wise, well-researched and diligent work on behalf of the guardian could not have been improved upon. There could be no basis for saying that because she does not have the benefit of Leading Counsel there is the potential for any inequality of arms. Clearly there is not. I foresee not the slightest difficulty in achieving a fair trial.

Justice of the case

72. Mr Parker suggests, and I agree, that the justice of the case requires me to make every effort to ascertain the truth or otherwise of the allegations so as to plan appropriately for the child's future. I end where I began with Mr Parker's perceptive comment – there would be an inherent incongruity in one arm of the State maintaining that the father is a terrorist with an Islamist extremist mind set whilst another appears powerless to take any step so as to protect the welfare interests of the child.

73. To fall in with the local authority's application to withdraw the proceedings would be to deny this child justice. The local authority's application is dismissed.