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Oxfordshire County Council v DP, RS and BS [2005] EWHC 1593 (Fam)

Lawfulness of fact-finding hearing in care proceedings where no public law order was currently being sought.

Oxfordshire County Council v DP, RS and BS [2005] EWHC 1593 (Fam)

Family Division: Mcfarlane J (20 July 2005)

Lawfulness of fact-finding hearing in care proceedings where no public law order was currently being sought.

In March 2004, B, aged 6 months, was admitted to hospital in asystolic cardiac arrest. B had been alone with his father ('RS') at the time of the collapse. Investigations revealed a healing fracture of B's right humerus. Clinicians regarded both the fracture and B's collapse as suspicious.

A sibling of the child had suffered 2 previous injuries at the hands of the father, to which he made full admission and resulted in a supervision order being made by the court in 2002. In respect of the current injuries sustained by B, the father stated that although the fracture may have occurred accidentally, he made no admissions for the respiratory collapse.

In care order proceedings brought with regard to B by the local authority, all parties agreed that neither a care order nor a supervision order was required. Nevertheless, the local authority, B's mother and the children's guardian sought findings of fact against RS with respect to the arm fracture and respiratory collapse.

Counsel for RS raised as a preliminary issue the question of the legality and scope of any such fact-finding exercise. RS argued that: (a) as no public law orders were being sought, it was unlawful for the court to embark on any fact-finding hearing; and (b) if the court did have power to hold such a hearing, the court should exercise its discretion against doing so.

Held, that it was lawful for the court to conduct a fact-finding exercise despite the fact that, at that stage, no party was seeking a public law order, because until the court had determined the facts as best it could, and evaluated whether or not the Children Act 1989, s 31, threshold had been passed, it was not appropriate to say that there would be no public law order. All that could be said at that stage was that no party was positively seeking such an order, which was insufficient to render otherwise lawful proceedings unlawful in so far as they might consider various findings of fact.

Once properly constituted care proceedings had been commenced, they remained lawfully established unless and until they were either concluded or withdrawn. The question of whether or not a particular fact-finding exercise was conducted within those proceedings was a question for the court's discretion and was not a matter that would, of itself, be 'unlawful'.

The following matters were likely to be relevant and needed to be borne in mind before deciding whether or not to conduct a particular fact-finding exercise:

(a) the interests of the child (which were relevant but not paramount);
(b) the time that the investigation would 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; and
(i) the justice of the case.

On the facts, the apparent unanimity of view about the final orders hid the reality of a very substantial and important factual dispute between RS and the other parties. A full hearing of the factual evidence in relation to the fracture of B's arm and his respiratory collapse was necessary, justified and proportionate. Such a hearing was in B's best interests.