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Re X & Y [2007] EWHC 1862 (Fam)

Judgment arising from care proceedings that were withdrawn before the fact-finding hearing in the light of the medical evidence.

It was common ground that one of the children had suffered trauma and the fact-finding hearing was to determine whether the injuries were caused by accident or not. However in the experts and advocates meetings prior to that hearing it emerged that there were inconsistencies in the medical evidence. Consequently, the local authority put it to Munby J that the fact finding hearing should not go ahead if the parents agreed to a package of monitoring. Munby J rejected this approach and asked the local authority to reconsider: they did so and withdrew the care proceedings.

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Neutral Citation Number: [2007] EWHC 1862 (Fam)

Case No: FD06C00758
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(In Private)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 18 July 2007

Before :

MR JUSTICE MUNBY
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In the matter of X and Y (twins born on 1.1.2006)

Between :

THE LONDON BOROUGH OF ISLINGTON (Applicant)

- and -

Z and others (Respondents)

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Mr James Shaw (instructed by Islington Legal Services) for the local authority
Mr Dermot Casey (instructed by Duncan Lewis & Co) for the mother
Mr Sam Momtaz (instructed by Hodge Jones & Allen) for the father
Ms Margo Boye (instructed by Gary Jacobs & Co) for the children

Hearing date: 2 July 2007
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.


.............................

MR JUSTICE MUNBY

This judgment was handed down in private but the judge hereby gives leave for it to be published. The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

Mr Justice Munby :
1. These are care proceedings which came to an abrupt end in circumstances which require to be explained and, in light of some of the issues raised, in a public if anonymised judgment.

The background
2. X and Y are twins. They were born on 1 January 2006 at 30 weeks gestation, X being born second.

3. On 6 December 2006 X was admitted to hospital in the early evening, having been reported by his mother to have suffered seizures at home immediately prior to her calling for an ambulance.

4. Medical examination established (and this is not in dispute) that X had sustained the following injuries:

i) a right sided subdural haemorrhage which extended all the way round the side of the brain and up the middle of the brain;
ii) a cerebellar subdural haemorrhage, larger on the right than on the left at the back of the brain underneath the main part of the brain;
iii) extensive retinal haemorrhages involving pre-retinal, superficial and deep layers of both eyes; and
iv) acute encephalopathy involving loss of consciousness.

As on 7 December 2006, the subdural haemorrhages were acute, that is, of recent onset.

5. The expert evidence before the court is at one that there is no naturally occurring medical condition that can account for X's injuries. Everyone agrees that they were caused by trauma. The question is whether the cause of this trauma was accidental or non-accidental.

The proceedings
6. On 9 December 2006 X and Y were both taken into police protection. Care proceedings were commenced by the local authority in the Inner London Family Proceedings Court on 12 December 2006 and were immediately transferred to the Principal Registry. On 9 February 2007 the proceedings were transferred to the High Court and allocated to me. A causation hearing was listed for 5 days starting on 2 July 2007 and a final hearing for 5 days on 19 November 2007.

7. I conducted a case management conference (by video-link from Newcastle where I was sitting on circuit) on 22 February 2007. There were further directions hearings before me on 21 March 2007, 10 May 2007 and 14 June 2007. At the hearing on 21 March 2007 I directed the joinder of the maternal aunt, against whom the local authority was at that stage seeking findings. At the hearing on 14 June 2007 I directed that she be discharged as an intervenor, the local authority having indicated that it was no longer seeking findings against her and having agreed to pay her costs. The causation hearing commenced before me on 2 July 2007.

8. Whilst the proceedings have been on foot, X and Y have been placed with their paternal grandparents. The parents have been having substantial daily contact with the children.

9. The local authority's care plan dated 16 December 2006 indicated that "should there be further information to suggest that [X]'s injuries are organic or accidental then [it] will reunite both [X and Y] with their parents."

The local authority's case
10. As amended on 22 June 2007 the local authority's case on threshold was clear and straight-forward. Other than in relation to X's injuries, no allegations of any kind were being made against either parent. The local authority's case was founded exclusively on the injuries and directed in large part against the mother. Having set out the facts as I have summarised them in paragraphs [3] and [4] above, the local authority's 'Statement of findings of fact sought' continued as follows:

"4 The explanation given by the … mother and the … father for the child's injuries was not consistent with the medical findings.
5 There is no organic cause for the child's injuries.
6 The injuries were caused non-accidentally by a forceful and deliberate shaking of the child.
7 The injuries were caused while the child was in the care of the … mother alone during the afternoon of 6th December 2006.
8 The injuries were caused by the child's mother."

The parents' case
11. The mother's account has throughout been that X sustained his injuries as a result of a fall. The local authority accepts that the mother's account has been consistent throughout save only for discrepancies as to whether X fell whilst standing against or on a chest.

12. The father has always believed the mother's account and believes that his son's injuries were caused accidentally.

The expert evidence
13. There is much evidence from various treating professionals at the two hospitals where X was treated. In addition, and crucially, there is evidence from six expert witnesses:

i) Dr Ben Lloyd, a consultant paediatrician (reports dated March 2007, 26 May 2007 and 7 June 2007);
ii) Mr Peter Richards, a consultant neurosurgeon (report dated 29 March 2007);
iii) Miss Gillian Adams, a consultant ophthalmic surgeon (reports dated 7 May 2007 and 19 May 2007);
iv) Dr Karl Johnson, a consultant paediatric radiologist (report dated 11 May 2007);
v) Dr Neil Stoodley, a consultant neuroradiologist (reports dated 28 May 2007 and 29 June 2007); and
vi) Dr Michael Jones, a biomechanical engineer (report dated 15 June 2007).

14. In accordance with directions I had given on 22 February 2007, an experts' meeting took place (by telephone conference) on 19 June 2007 to consider a list of questions which had been prepared, in consultation with all parties, by the children's solicitor. The transcript of that meeting prepared by BT runs to 63 pages. All the experts, with the exception of Dr Johnson whose findings were not in contention, attended the meeting.

15. Following the experts' meeting, Dr Stoodley wished to examine the CT scan of X's brain taken on 6 December 2006. On 29 June 2007 he had a telephone conference to discuss the CT scan with Dr J. Dr J was a consultant neuroradiologist at one of the hospitals treating X who, although not responsible for the CT scan, had been involved in conducting MRI scans on 7 December 2006 and 15 December 2006 and a CAT scan on 22 December 2006. I have a note of that conference prepared by the children's solicitor. Dr Stoodley produced his final report the same day, 29 June 2007.

16. In view of the course the proceedings have taken, I do not need to analyse the expert and other medical evidence in great detail. But I should, I think, briefly summarise the views of each of the experts.

17. First, however, there is one feature of X's head which needs to be emphasised. It is accepted that X, like his brother, has "prominent" – that is, enlarged – subarachnoid spaces.

The expert evidence – Dr Lloyd
18. In his first report, dated March 2007, Dr Lloyd, having reviewed the literature, said that it provides "considerable evidence to support the view that babies who have benign enlargement of the subarachnoid space can suffer significant subdural haemorrhages as a result of relatively minor trauma." Emphasising that it was important to obtain reports from experts in various other disciplines, Dr Lloyd nonetheless expressed his opinion "meanwhile" as being that, although it was at least "possible" that X's subdural bleeding represented the consequences of inflicted injury, the presence of benign enlargement of the subarachnoid space meant that X's subdural bleeding "might well" have resulted from the fall reported by his mother.

19. In his second report, dated 26 May 2007, by which time he had seen Dr Adams' first report, Dr Lloyd said that there was no change to his conclusions. In his third report, dated 7 June 2007, by which time he had also seen the reports of Mr Richards, Dr Johnson and Dr Stoodley, Dr Lloyd expressed the opinion that X's subdural bleeding "probably" arose accidentally. His opinion, pending further discussion at the forthcoming experts' meeting, was that:

"Meanwhile, it is my view that it is more likely than not that [X]'s injuries arose in the way described by his mother, rather than from an inflicted injury."

The expert evidence – Mr Richards
20. In his report, dated 29 March 2007, Mr Richards expressed the opinion that "on the balance of probability" the cause of X's acute illness on 6 December 2006 was that he had suffered a head injury, the origin of which was "likely" to be a "firm shake." He summarised his conclusions as follows:

"I would therefore consider it likely that [X] was subjected to an acute shaking event … There is nothing to suggest repeated abuse and there is nothing to suggest that this was an episode with malevolent intention. It may be speculated that it was caused by a moment's loss of control or frustration on the part of a carer."

The expert evidence – Miss Adams
21. In her first report, dated 7 May 2007, Miss Adams was clear:

"On the basis of the appearance of the retinal haemorrhages alone I am unable to determine their mechanism of causation."

In her second report, dated 19 May 2007, Miss Adams said that the report by Mr Richards did not alter her opinion.

The expert evidence – Dr Johnson
22. In his report, dated 11 May 2007, Dr Johnson said that the skeletal survey on X was within normal limits and shows no evidence of any fracture or underlying dyspasia.

The expert evidence – Dr Stoodley
23. In his first report, dated 28 May 2007, Dr Stoodley commented that:

"It is generally accepted (although we do not really know) that the degree of force required to produce subdural haemorrhage in cases where there is enlargement of the subarachnoid spaces is likely to be less than if the space was normal in size."

His conclusion was as follows:

"the pattern of acute subdural haemorrhage seen on [X]'s initial MRI scan is explicable in terms of impact head trauma … there is, in my view, insufficient evidence for me to accept that on balance [X]'s injuries are more likely than not to be non-accidental in nature."

The expert evidence – Dr Jones
24. In his report, dated 15 June 2007, Dr Jones was clear:

"I am unable … to state whether the injuries sustained by [X] were or were not a result of the fall suggested by his mother."

The expert evidence – the experts' meetings
25. By the end of the first experts' meeting on 19 June 2007 none of the five experts who attended had significantly changed their opinion. Mr Richards stood by his opinion that on the balance of probability the injury was non-accidental. Miss Adams stood by her opinion that one could not use the retinal haemorrhages to decide whether the injuries were inflicted or not. Dr Jones said that his opinion was unchanged. Dr Stoodley said that he had heard and read nothing to make him want to change anything in his report. Dr Lloyd said that in his opinion it was more likely to be accidental than not.

26. All this was subject to Dr Stoodley examining the CT scan and discussing it with Dr J before reaching a concluded view. His meeting with Dr J did not lead to any change in Dr Stoodley's view. In his second report, dated 29 June 2007 (that is, following both experts' meetings), Dr Stoodley's view remained unchanged:

"although I cannot exclude the possibility of non-accidental head injury as a cause for the scan appearances seen on [X]'s sequential scans, they are also explicable in terms of accidental head trauma and, given the neuroimaging circumstances of this case, I feel unable to conclude that on balance non-accidental head injury is the more likely of the two."

The expert evidence – summary
27. Thus of the five key experts (Dr Lloyd, Mr Richards, Miss Adams, Dr Stoodley and Dr Jones), two (Miss Adams and Dr Jones) were unable to say whether X's injuries were caused by accidental or by non-accidental trauma, two (Dr Lloyd and Dr Stoodley) were of the opinion that on balance accidental trauma was more probable than non-accidental trauma and only one (Mr Richards) was of the opinion that on the balance of probability the cause was non-accidental injury.

28. That was the position on 15 June 2007 when Dr Jones reported; it remained the position after both experts' meetings.

The advocates' meeting
29. The causation hearing was due to start on Monday 2 July 2007.

30. In accordance with directions I had given on 14 June 2007, an advocates' meeting was held on 25 June 2007, that is, after the experts' meeting on 19 June 2007 but before Dr Stoodley had spoken to Dr J and produced his final report.

31. At the advocates' meeting there was discussion of the expert evidence, leading to the conclusion that there was a real prospect of the court being unable to make findings because the evidence overall might not be sufficiently cogent. This in turn led to discussion at the advocates' meeting as to the utility of a fact-finding hearing in all the circumstances.

32. Very shortly before the hearing, in fact in a position statement on behalf of the mother dated 28 June 2007, I was informed that at the advocates' meeting both the local authority and the children's guardian had expressed the view that, "whatever the outcome of the fact-finding hearing" (my emphasis), the children should return to the care of their parents:

"The ongoing assessments of the family and of the care the children receive have raised no concerns that the children, or either of them, are at risk of any harm in the future."

That was confirmed by the guardian as being her position in a position statement dated 28 June 2007. Counsel for the local authority in the course of his submissions on 2 July 2007 confirmed that this was indeed also the local authority's position.

33. The mother in her position statement submitted that the case for non-accidental injury stood or fell on medical and bio-mechanical evidence which was equivocal at the very least. She pointed to the likelihood of the court not being in a position to determine how X suffered his injuries and said, "This is a matter of regret on the part of the mother who has always been clear that [X] was not injured by her." She raised for consideration the appropriateness of a fact-finding hearing. Not surprisingly she said that if the children were to be returned this should be done sooner rather than later, given that they had been apart from her for six months of their lives at a crucial stage in their development. Any further separation would not be in their interests.

34. The father in a position statement also dated 28 June 2007 adopted and fully supported the mother's stance. He invited me to consider whether in the circumstances a contested fact-finding hearing was really necessary and, more importantly, whether it was in the children's best interests.

35. The children's guardian in her position statement said that she had come to the view that the withdrawal of the application for a care order would not compromise the welfare of the children and was likely to promote it. In the current circumstances there was no solid advantage to be derived from continuing proceedings for a further 3 months (ie, until the final hearing in November 2007). Importantly the guardian reported that she had met the parents on several occasions, including at LAC reviews and at court, and had made her own – by implication, positive – assessment of them.

36. The guardian envisaged that the children's return home would be subject to a package of support and monitoring that the parents were willing to agree to but that she would stipulate in any event (see below). She concluded:

"This is not a case where the very fact of a finding means that the children cannot return home. The guardian sees no benefit to the twins in continuing to live away from their home and their parents only to be returned in a framework of identical safeguards after further delay, they having spent a third of their lives in care as at the date of this hearing."

37. That was all on 28 June 2007. On 29 June 2007 the local authority filed a further position statement, informing me that at a meeting the previous day the local authority had accepted in principle the proposals of the guardian and the parents. I was told that the local authority was preparing a suggested agreement between the local authority and the parents as the basis on which the children would return home and that if this agreement was acceptable to the parents the local authority would invite the court to grant it permission to withdraw its application.

The hearing
38. At the sitting of the court on 2 July 2007 I was presented with two documents. One was a manuscript agreement signed by both parents and by the local authority team manager. Expressed as lasting until 1 January 2008, it provided, inter alia, for social work visits fortnightly for six weeks and monthly thereafter; attendance of the mother and the children at a mother and toddler group; the father to take leave from work for the month of July 2007 to re-establish the children back at home; weekly support from the paternal grandparents and other members of the wider family; the children to be taken to health visitor and medical appointments as required; the parents to notify the local authority of any change of address; and to discuss any other issues which might be raised by the local authority.

39. The other document was a draft of the proposed order. This provided that "upon the basis of" that agreement the local authority should have permission to withdraw its applications for care orders.

Concerns
40. I have to say that all this came as something of a surprise to me. I was not surprised that the local authority was reconsidering its position in the light of the expert evidence. After all, once Dr Stoodley had reported on 28 May 2007 it must have been apparent, even if not before, that there were significant difficulties in the local authority's way. And the outcome of the two experts' meetings can have done nothing to improve the local authority's assessment of its situation. (That said, the local authority's position statement dated 12 June 2007 which had been filed for the pre-hearing review on 14 June 2007 made clear that, subject to any "dramatic" shift of expert opinion at the experts' meeting, the local authority would be seeking findings against the mother. Indeed, that still remained the local authority's position when it filed its case summary and statement of issues dated 27 June 2007 – a document which indicated that the local authority was seeking findings against the mother and which identified the expert and other witnesses who it was proposed should be called to give oral evidence.)

41. What did surprise me was the local authority's seeming volte-face in relation to the need in any event for the fact-finding hearing. On 10 May 2007 I had been asked to give directions for the preparation of a risk assessment of the parents if that became relevant following the fact-finding hearing. And as recently as at the pre-hearing review on 14 June 2007 there had been no hint of any change in the local authority's stance. It was only on 28 June 2007, when I received the mother's position statement, that I learned for the first time that the local authority and the children's guardian were of the view that the children should be returned to the care of their parents whatever the outcome of the fact-finding hearing.

42. I was not concerned about that being the local authority's view. After all, the children's guardian had expressed her support for such an approach and given solid reasons to justify it. And it seemed entirely appropriate in all the circumstances that the children should indeed be returned home, and without further delay. My concern was rather as to whether this decision had been taken as soon as it might have been. The stress on parents in the situation in which these parents found themselves must be absolutely appalling. And for parents to be separated from their children without good cause can only be damaging not merely to the parents but also to the children. I am happy to make it clear that there was, as it turned out, no basis for my concern. I am satisfied that the decision was taken and communicated to the parents at the earliest practicable stage.

43. I was also concerned – very concerned – about the documents presented to me for my approval. In the first place, the documents as drafted left the basis upon which I was being asked to make the order wholly unclear. Was the local authority inviting me to make the order on the basis that it had a properly arguable case against the mother that she had in truth injured X, albeit that for pragmatic reasons it did not wish to pursue its allegations to trial? Or was the local authority inviting me to make the order on the basis that it accepted, even if it was not prepared to acknowledge openly, that there was no longer any reasonable prospect of it succeeding in establishing its case, that there was, as it were, no longer any case fit to go to a jury? It seemed to me wholly inappropriate in a case such as this for the court to be making an order without the order making clear on its face the basis upon which it was being made. Otherwise the order itself might be a fruitful source of future uncertainty and confusion. (This is not, of course, to require that the parties necessarily agree the basis upon which an order is being made. The parties may agree that the local authority should have permission to withdraw an application for a care order whilst disagreeing very profoundly as to why that is the proper order to make. In such a case it may be appropriate for the order to recite the parties' differing and unresolved positions, as, for example, was done in X Council v B (Emergency Protection Orders) [2005] EWHC 2105 (Fam), [2005] 1 FLR 341: see at para [24].)

44. Moreover, and this was my other concern, the assumption appeared to be that the parents were content to proceed in this way and without the mother having any opportunity to establish that her account of events was indeed true.

45. I was well aware that the parents had already signed the agreement, and that the mother in her position statement had said that she and her husband would be willing to co-operate with any transitional arrangements which the local authority would wish to propose. But I could not blind myself to the reality that in a situation such as this most parents would be prepared to sign almost anything within reason to get their children back.

46. Accordingly, I declined to make the order then and there in the form in which it had been presented to me and invited the parties to consider matters further in the light of the concerns I had expressed.

Discussion
47. I think I should elaborate a little as to why I had these concerns.

48. Where the basis of a care case is an allegation of abuse (whether sexual, physical or any other kind of abuse) the court is typically concerned to ascertain at the 'threshold' or fact-finding stage whether there has been abuse and, if so, to identify the perpetrator(s). Sometimes, as typically in cases of alleged sexual abuse, the first question is whether something did or did not happen – was the child sexually abused? Sometimes, as typically in many cases of alleged physical abuse, the question is not so much whether the child has been injured – the medical evidence is often clear enough as to the existence of the relevant injuries – but rather, as in the present case, as to whether the injuries were caused accidentally or non-accidentally.

49. In many cases of alleged abuse there may not be too much difficulty in deciding whether there has been abuse. Sometimes the much more difficult question is whether it is possible satisfactorily to identify the perpetrator(s). The first stage is for the court to identify those who are to be considered as included in the pool of possible perpetrators. Someone is to be included in the pool of possible perpetrators if, but only if, there is a "real possibility" that he or she was the perpetrator, or one of the perpetrators, of the abuse, or part of the abuse: North Yorkshire County Council v SA [2003] EWCA Civ 839, [2003] 2 FLR 849, at para [26]. Having excluded any potential perpetrators on the basis that there is no real possibility that they caused any part of the abuse, the court is left with a pool of possible perpetrators. The next stage is to consider which of the possible perpetrators was in fact the (or a) perpetrator. For this purpose the standard of proof is the ordinary civil standard of the 'balance of probability' as defined and described by Lord Nicholls of Birkenhead in In re H and others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at page 586. This is the test both where the question is, Has there been abuse? and also (see Re G (a child) (non-accidental injury: standard of proof) [2001] 1 FCR 97 at paras [17]-[18]) where the question is, Who was the (or a) perpetrator? If the court is unable to identify which of the possible perpetrators was in fact the (or a) perpetrator, the court has to proceed to the disposal stage of the proceedings on the footing that each of those left in the pool is a possible perpetrator: see In re O and another (Minors) (Care: Preliminary Hearing) [2003] UKHL 18, [2004] 1 AC 523, at paras [27]-[28].

50. I draw attention to these matters to bring out a point which needs to be borne in mind. There may be cases in which the court is able to find, to the relevant standard of proof, that A has abused B. There may be cases in which the court is able positively to exonerate A from an allegation of abuse; there may be material which enables the judge to find, not merely that the case against A is not proved but to go further and say that he is satisfied to the relevant standard of proof that A is not an abuser. Sometimes, however, in the nature of things the judge is unable to come to such clear-cut findings. Suspicion may remain, even if there is not a sufficient likelihood of A's guilt to include him in the pool of possible perpetrators. Or A may find himself in the pool of possible perpetrators, because there is a "real possibility" that he is a perpetrator, but in circumstances where, even at the end of what may a long trial, there is insufficient evidence to enable the judge to make a finding to the relevant standard of proof either that A is a perpetrator or to exonerate him positively from the allegation. Not infrequently the outcome of a 'threshold' or fact-finding hearing is to leave the identity of the perpetrator(s) uncertain.

51. An ambiguous or uncertain conclusion to care proceedings can potentially have very serious consequences for parents.

52. There may be serious consequences in an uncertain perpetrator case if either of the parents is or becomes involved in care proceedings involving another child: for a recent example see Re CW, IW and another v LB of Enfield [2007] EWCA Civ 402. And even if the case against them has not been proved and threshold has not been established, there may be serious consequences if a parent who has not been completely exonerated needs for employment purposes to obtain an enhanced criminal record certificate pursuant to section 115 of the Police Act 1997: see, for example, R (L) v Commissioner of Police for the Metropolis [2006] EWHC 482 (Admin), appeal dismissed [2007] EWCA Civ 168, and, more particularly, R (B) v Secretary of State for the Home Department [2006] EWHC 579 (Admin).

53. So parents may have a pressing interest in demanding a full hearing with a view to seeking their complete exoneration.

54. Now the starting point in this situation is, of course, the judgment of Waite LJ in London Borough of Southwark v B [1993] 2 FLR 559, at 573:

"The paramount consideration … is … the question whether the withdrawal of the care proceedings will promote or conflict with the welfare of the child concerned. It is not to be assumed, when determining that question, that every child who is made the subject of care proceedings derives an automatic advantage from having them continued. There is no advantage to any child in being maintained as the subject of proceedings that have become redundant in purpose or ineffective in result. It is a matter of looking at each case to see whether there is some solid advantage to the child to be derived from continuing the proceedings."

55. This does not mean, however, that just because a local authority has decided that it cannot pursue, or that it should not pursue, serious allegations against parents, the parents are necessarily to be denied their day in court with a view to establishing their innocence if that is what they wish. Parents, as I have said, may have a pressing interest in demanding a full hearing so that they can be exonerated.

56. But it is not just the parents who have that interest. The children themselves, precisely because they are the parents' children, themselves have a direct and important interest in ensuring that the truth, whatever it may be, comes out. "Better for the children that the truth, whatever it may be, comes out:" Re Z (Children) (Disclosure: Criminal Proceedings) [2003] EWHC 61 (Fam), [2003] 1 FLR 1194, at para [13], and Re X Children (Disclosure and Reporting Restrictions) [2007] EWHC 1719 (Fam) at para [37]. There are of course situations where issues are best left unresolved by the judicial process and best consigned to whatever resolution may eventually emerge within the privacy of the family, but in the vast majority of cases it is best that the truth should out, whatever it may turn out to be: X Council v B (Emergency Protection Orders) [2005] EWHC 2105 (Fam), [2005] 1 FLR 341, at paras [14], [25].

57. There is, of course, a balance to be struck here. Although care proceedings are inquisitorial, and often involve a detailed investigation of a child's home life and history, they are not a general inquiry into everything that has happened. The local authority has, in the final analysis, two concerns, both of course directed to the child's protection and welfare: first, to establish 'threshold' so that the court has jurisdiction to make a care order and, second, to establish such facts as will persuade the court not merely to make a care order but also to approve the particular plan for the child that the local authority has produced under section 31A of the Children Act 1989.

58. In some cases the local authority will wish to go further. It may seek to persuade the judge to make additional factual findings which it is thought are important either for the child or, possibly, for another child of the family. But often there will be no present need, and if no need no justification, for exploring, perhaps at some length and at great cost and ultimately without any clear conclusion, matters the proof of which is not necessary to enable the local authority to obtain the order it seeks. A local authority may have little difficulty in proving abuse. It may have more or less well-founded suspicions that a parent is the abuser. But if the parents are prepared to concede threshold on the basis of failure to protect, and do not resist the local authority's plan (whatever it may be), the local authority may conclude that there is nothing, or nothing sufficient, to be gained by pressing on with what it knows may be the unsuccessful attempt to prove that the parent was an abuser. And even if the local authority is initially minded to press on, the judge in the proper exercise of his case management powers may conclude that, on balance, and for a variety of reasons, the possible advantages of the exercise are outweighed by the disadvantages.

59. All that said, if parents are the subject of serious allegations the court cannot lightly disregard a demand by the parents that they have their day in court, if they reasonably assert not merely a claim to be acquitted but also a claim to be fully exonerated.

60. So for all these reasons I was anxious to ascertain whether the mother in the present case was content for the proceedings to come to an end without more ado or whether she might wish to press for an opportunity to give her evidence with a view to seeking exoneration.

Outcome
61. Later the same day the parties returned to court. Counsel for the local authority told me that the local authority accepted it was unable to establish its case and was content for that fact to be recited in the order. Counsel for the mother told me that she did not want to prolong the proceedings any longer. The father supported her in that. Their only wish was to put the whole awful matter behind them and to resume their family life with their two sons without any ongoing involvement with the court.

62. The local authority having conceded that it had no case, there was, of course, no basis for imposing on the parents any form of monitoring (or indeed support) to which they were not willing to agree. Not surprisingly, though so far as I am concerned this involves absolutely no criticism of the local authority, the parents preferred in the event to resume their family life without any ongoing involvement on the part of the local authority. That was their right. And no-one, neither the local authority nor anyone else, should think any the worse of them for that. The parents have been through a terrible ordeal, no doubt haunted for many months by the fear that they might lose their children. I can well understand that in such circumstances many parents would prefer to embark upon the reconstruction of their, and their children's, lives without the assistance, however well-meaning, of public agencies.

63. In the upshot, the order I made contained no reference to the agreement but instead contained a recital to the effect that the local authority, having considered the evidence in the light of the experts' meetings on 19 and 29 June 2007, accepted that it was "unable to establish the threshold criteria sought." On that basis I gave the local authority permission to withdraw its applications. I was happy to make that order which seemed to me, in all the circumstances, to be plainly the most appropriate form of order. It reflected the reality, recognised by the local authority, that there was no longer any reasonable prospect of it being able to establish its case – an assessment of the evidence which accorded entirely with mine. It also reflected the parents wish to bring the proceedings to an end without any further delay.

64. I add only this. The parents' sense of relief, the mother's joy, when I said that I was going to make that order and that the children would return home, were very obvious. It was a powerful and important reminder of the terrible burden that proceedings of this kind must impose on parents.