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North Yorkshire CC v S [2005] EWCA Civ 316

A local authority must still fulfil its protective duties towards a child, even where a care order application has been refused

North Yorkshire CC v S [2005] EWCA Civ 316

Court of Appeal: Thorpe, Potter and Wall LJJ (10 February 2005)

A local authority must still fulfil its protective duties towards a child, even where a care order application has been refused.

The local authority had issued care proceedings in relation to a young girl born in 2003, on the basis of strong evidence of two earlier episodes of sexual abuse by the father in the 1980s and mid-1990s, although the father had successfully defended criminal proceedings in relation to one of those episodes. In order for the care order application to proceed, the past events needed to be established at the preliminary fact-finding hearing.

In his judgment, the trial judge concluded that he was not judicially satisfied, on a balance of probabilities, that the father had abused either child. The judge continued to state, in paragraph 93 of his judgment, that the onus of proof was on the local authority, and they had failed to discharge it; therefore, any future dealings between the parties must proceed on the basis that the alleged abuse did not happen.

The local authority was granted limited permission to appeal the statements of principle and law contained in paragraphs 93 onwards of the judgment. They contended that nothing within the judgment would enable them with any confidence to depart from their original view that the father posed a risk to especially vulnerable children; however, the effect of the judgment was to direct them to proceed on the basis that the abuse had not happened, and such a direction would strike at the heart of their wide-ranging duties and responsibilities to children in need of protection, with particular reference to Children Act 1989, s 47(1)(b) and the child's entry on the Child Protection Register.

Held, allowing the appeal to the extent of removing paragraph 93 from the judgment, that the local authority's failure to cross the s 31 threshold by reliance on the historic episodes did not impact on their continuing responsibility to protect the child in whatever way seemed necessary and was within their lawful remit. That would include use of the Area Child Protection Conference and Register, and the section 47(1)(b) duty: s 47 was about child protection, and the threshold which triggers the duties of a local authority to investigate were, for obvious reasons, lower than those which entitle a court to place a child in care. The local authority was entitled on the facts to have "reasonable cause to suspect" that the child was likely to suffer significant harm and to take appropriate steps both to investigate further into her circumstances and to monitor her well-being.

Thorpe LJ referred to the fact that, by virtue of Children Act 2004, ss 13–16, the existing Area Child Protection Conferences will shortly be replaced by Local Safeguarding Children Boards.

Read the full text of the judgment