Housing Law WeekAlphabiolabsFamily Law WeekFamily Law WeekBerkeley Lifford Hall Accountancy Services

A (Children)[2006] EWCA Civ 714

The Mother’s application for permission to appeal two orders made in care proceedings dismissed.

Court of Appeal: Chadwick, Wall and Moore-Bick LJJ (4 April 2006)

The Mother's application for permission to appeal two orders made in care proceedings dismissed.

The Mother of two young children, child A and child B sought permission to appeal and an extension of time in which to appeal against an interim care order and final care order in relation to both children. The Local Authority's care plan placed the children into the care of their Father.

Care proceedings were initiated in 2003 on the basis that child A had suffered a fracture to her skull for which there was no adequate explanation. The local authority's statement in support of the application for an Emergency Protection Order expressed a number of anxieties about the mother's behaviour including concerns she had a mental health problem. The Court directed a finding of fact hearing to ascertain how and in what circumstances the child had been injured. At a directions hearing the Mother was given permission to produce expert evidence as to her mental health at the factual hearing. However it was clear from that order that the Doctor's report was not anticipated until the final hearing. The fact finding hearing concluded that the injury was accidental. The Mother asserted that at this point the care proceedings should have been concluded. However an interim care order followed and the proceedings concluded with the final hearing at which the Local Authority relied on the Mother's personality disorder to satisfy the threshold criteria. The Mother submitted that following Re M (A Minor) (Care Order: Threshold Criteria) [1994] 2 App Cases 44 the date for the establishment of a threshold criteria is the date at which the local authority first takes protective measures. The Mother asserted therefore that it was wrong to allow the local authority to seek to satisfy the threshold criteria on a wholly different basis. Whilst she accepted that it is open to a court to rely on information acquired after that date if the later events are capable of proving the state of affairs which existed at the date the proceedings were instituted, the Mother submitted that the judge erred by retrospectively validating a concern not in fact justified at the time.

Held, dismissing the Mother's application, that the fact finding hearing in this case was not designed to determine the threshold criteria and therefore the court had jurisdiction to make an interim care order; it was designed to determine whether or not the injury to child A was or was not accidental.

It is essential that the material upon which the threshold criteria can be satisfied represents a proper basis for the institution of care proceedings and must also have been in existence at the time those proceedings were instituted even if it did not represent the basis upon which the local authority intervened. The process of introducing the material into the proceedings must be fair so that the parents have an opportunity to address it. It could not be said that there was any unfairness to the Mother since by the time the final hearing arrived she knew precisely what case she had to meet. Furthermore the mother's personality disorder predated the local authority's intervention in 2003 and although the evidence only emerged at a later date it was manifestly relevant to the threshold criteria and the welfare of the children.

Wall LJ emphasised the lessons to be learnt from this case: firstly, applications for permission to appeal in children's cases must be brought on swiftly; secondly, where the court is contemplating a split hearing it is essential that the issues to be resolved in the first limb of the hearing are clearly defined and the consequences are fully understood by the parties. Thus if the court is dealing with a single issue case in which the facts found will determine the threshold criteria the directions must identify the purpose of the first limb hearing, namely to decide whether or not the threshold criteria are established and the facts upon which the local authority relies. Alternatively if the purpose is to resolve an issue of fact, which will affect subsequent assessments to be made, this must be spelt out in a directions order. Once the first limb is concluded it is sensible for judge and counsel to clarify the consequences of any findings the judge has made.

The Mother's applications did not stand any reasonable prospect of success and were therefore refused.

Read the full text of the judgment here