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F (A Child) [2007] EWCA Civ 810

Application for permission to appeal with appeal to follow, by local authority against findings by trial judge that the parents had "no case to answer" regarding s31 Children Act threshold criteria. Application and proceedings reinstated.

Neutral Citation Number: [2007] EWCA Civ 810

Case No: B4/2007/1328

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 31/07/2007
Before :

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Between :


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DFM (The Father) 1st Respondent TMF (The Mother) 2nd Respondent

F (A Child)
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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
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Christopher Naish (instructed by Somerset County Council) for the Appellant
Mr Richard Hickmet (instructed by Messrs Alletsons - Solicitors) for the 1st Respondent
Mr Richard Powell (instructed by Messrs Porter Dodson – Solicitors) for the 2nd Respondent

Hearing date : 24th July 2007
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As Approved by the Court

Crown copyright©

Lord Justice Wall
1. In my judgment, this case demonstrates – yet again – the need for both the court and the parties, when a split hearing is ordered in care proceedings, to be absolutely clear about the purpose of the hearing itself, the issues to be decided and the relief which is to be sought.

2. In the instant case, the problems which have arisen seem to me to derive from the fact that the local authority's case as originally formulated on paper, both in the Supplement in Form C13 filed in the Family Proceedings Court on 30 January 2007, which initiated the proceedings, and in the statement of the allocated social worker dated 23 January 2007 sought limited relief, namely an interim care order and further assessments of both the child concerned and her parents. Yet on 12 March 2007, following the transfer of the case to the county court, a district judge directed a "fact finding hearing" to decide whether or not the threshold criteria under section 31 of the Children Act 1989 were satisfied. In the result, the judge taking that hearing held that the parents had "no case to answer" on the section 31 threshold criteria, and dismissed the proceedings. The result, in my judgment, is confusion and a less than satisfactory outcome for the child concerned.

3. In the event, on 24 July 2007, we granted the local authority permission to appeal, and at the conclusion of the argument announced that the appeal would be allowed; that the judge's order would be set aside; that the proceedings would be re-instated and should be listed before a different circuit judge for that judge to consider whether or not there should be further assessments of the parents and the child, and if so, whether or not those should take place under the aegis of an interim care order. We reserved our reasons for taking that course, which we now give. As this is a case which may well prove to be ongoing, we will impose reporting restrictions, and apart from identifying the local authority and the court involved, our judgments will be written anonymously.

4. Somerset County Council (the local authority) sought permission to appeal against an order made by HH Judge O'Malley, sitting in the Taunton CC on 23 May 2007. The effect of the order made by the judge was to dismiss care proceedings brought by the local authority in relation to a female child JF, who was born on 30 May 2002, and thus rising 5 at the date of the judge's order.

5. The judge did not give a judgment on 23 May 2007. According to the initial skeleton argument filed by counsel who attended the hearing, 23 May was the second day of the "fact finding" hearing. At the conclusion of the local authority's case, the judge invited counsel for the parents to make a submission that the parents had "no case to answer". The submission was then duly made and upheld by the judge. Counsel for the local authority failed to persuade the judge that the local authority's case had a number of strands, and that the proceedings should not be dismissed.

6. On 23 May, JF was being voluntarily accommodated by foster parents under section 20 of the Children Act 1989. It appears that following a discussion between counsel, an agreement was reached either on the following day or the day after that for JF to be returned to her parents' care. She has, accordingly, lived with her parents since the conclusion of the hearing before the judge.

7. On 30 May 2007, the judge handed down a draft judgment, which resulted in a request from counsel for the local authority for clarification of certain of his findings. The final version of his judgment appears in our papers and was, we are told, handed down on 1 June.

8. On 10 July 2007, the local authority's application for permission to appeal came before me on paper. I directed that it should be listed for an oral hearing with the appeal to follow if permission was granted. I directed that the application should be heard as soon as possible. I invited those advising the guardian to consider whether or not she wished to be separately represented: since she adopted a neutral stance in relation both to the application and any consequential appeal, she did not. As a result, we heard only from counsel for the local authority (not counsel who had conducted the hearing) and counsel for JF's parents.

The facts
9. The underlying facts can be stated as follows. JF's father, Mr. F is now 40, and her mother, Mrs. F is 26. They were married on 3 June 2006, and JF is their only child, although Mr. F has an adult daughter (now aged 20) by a previous relationship. Both have parental responsibility for JF.

10. Mr. F is what is known as a schedule one offender. In February 1998 he pleaded guilty to two counts of indecent assault on a nine year old child, whom he had known all her life and who was the daughter of friends. He received a sentence of 18 months imprisonment, but was released early. He met JF's mother after his release from prison.

11. Mrs F had a deprived upbringing. She was sexually abused both by her stepfather, and by a friend of her mother. She was taken into care at about the age of 12, and was also abused whilst in care. She also suffers from learning difficulties, and lack self esteem. On the local authority's case, she also finds it difficult caring for JF on her own. She appears to spend substantial amounts of time on the internet in chat rooms. Apart from the risks arising from the people she meets in these circumstances, the fact that she spends a long time in the evening and during the night engaged in this activity clearly makes it difficult for her to get up in the mornings, and to get JF ready for school.

12. Despite this unpromising background, the policy of the local authority has been to maintain JF's placement with her parents, whilst offering them a package of support. From time to time, including the present time, JF's name has been on the local authority's child protection register (CPR).

13. An assessment of Mr. F by JM (a risk assessment and treatment specialist) in March 2003 (when JF was about 10 months old) put Mr. F in the "medium risk bracket" in relation to JF. JM's recommendation in March 2003 was that it would only be safe enough for Mr F to remain in the family unit if the couple were given ongoing support throughout JF's childhood, and the childhood of any other child they might have. He added:-

In my opinion it will only be safe enough for (Mr. F) to remain in the family unit if the couple are given ongoing support throughout Jessica's growing up and any other child they have. This does not mean there has to be intensive involvement from Social Services, but there should be ongoing monitoring with particular support during potential crises times for the couple. Initial work with them should focus on:-

Couple counselling and communication
Parenting skills for both
Individual work with (Mrs F) to improve her confidence and self-esteem, and to improve her protection skills
Group work sessions (with Mr F) should such a group become viable for me to organise.
Deterioration in their relationship or reports of (Mr F) drinking and particularly of domestic violence should trigger professionals' concern about his risk to JF.

14. The local authority appears to have proceeded along these lines. The level of support during the first three years of JF's life is not clear, but from 26 May 2005 to 8 June 2006 her name was on the CPR under the category of likely sexual abuse and neglect. It seems that this registration occurred because Mrs. F left JF with Mr. F for a period of about three to four weeks when she went to visit Mr. F's sister.

15. On 16 November 2006 a Complex Family Support Review was held by the local authority, and it was acknowledged that the parents were both engaging well with Children's Social Care in attempting to reduce the risk factors for JF. It was, however, shortly after this, that things appear to have gone wrong.

16. The local authority instituted care proceedings on 30 January 2007 in the local family proceedings court. The Form C1 sought an interim care order, and referred to JF's registration on the CPR on 10 January 2007 under the category of "sexual and emotional abuse". In the supplement attached to the application, the local set out the history which I have summarised, and then continued:

2. The reason(s) for the application
……. During one to one 'Keep Safe' work with JF on 18 December 2006, J disclosed to LH (a trainee social worker) that her "daddy" had touched her private parts. JF said that daddy had pulled down her trousers and grabbed her. J indicated graphically that Mr F had grabbed her genital area in a clawing type action. JF said that she had told her Mum and Mum told Daddy off.

JF was video interviewed on 19 December and did not repeat the disclosure. Mr and Mrs F admitted during the police investigation that Mr F had been taking an active role J's personal care. They then backtracked on these comments. The Complex Family Support Placement clearly states that Mr F should not help with his daughters' personal care.

The Police took the computers in the house and Mr F is currently on police bail until 30 January.

Mr and Mrs F are in agreement with Children's Social Care, accepted that Mr F could be at the house between 11am – 5pm to see JF, and that Mrs F would be present for this time to supervise. Mr F agreed to stay at a neighbour's house overnight and at all other times.

The couple also agreed that they would allow staff from this office or the Emergency Duty Team to visit them and to see JF on both announced and unannounced visits.

During these visits there has emerged information from Mr and Mrs F that they believe a neighbour's child called D (aged 6) has been the one who has sexually harmed JF. They believe that D has spoken to JF and other children of playing 'mummies and daddies' and that JF was therefore meaning D when she speaks of 'Daddy'. Their concerns and J's comments about D have been passed on to the appropriate Children's Social Care Team for investigation. Their investigation did not conclude that D had been engaged in inappropriate sexual activities with children.

Because of the unresolved child protection issues a decision was taken to hold an Initial Child Protection conference on 10.01.07. What emerged from the conference was:

1. Mr F had not been keeping to his word about leaving the personal care of JF solely to Mrs. F.
2. Mr and Mrs F had not been keeping to the agreement of 20 December 2006 that Mr F will only be at the family home between the hours of 11.00 am and 5.00 pm. Mrs F acknowledged that he had been coming to the house at 9.00 am when J was at school. The Police had also received a telephone call on 5th January 2007 stating that Mr F was also at the home in the evenings.
3. Conference were concerned they could not be assured of JF's safety whilst Mr. F was in the house with supervision being provided by Mrs. F. Mr and Mrs. F were made aware (by the chair person) during the conference of this concern. In response, Mr. F felt t hat Mrs. F could not manage as a sole carer for JF for any length of time and that the estate on which they live was not safe enough for JF and Mrs. F if they were the only occupants of the house.

Mr and Mrs. F asked for JF to be accommodated whilst they work to make some changes to ensure JF's safety. The couple were told at the conference that Children's Social Care would instigate care proceedings with a view to obtaining an interim order.

Under the heading: Your plans for the children, the local authority stated:-

Somerset County Council will invite the Court to make an Interim Care Order in respect of J. The plan is for J to remain in foster care whilst assessment work with the parents continues.

During this time contact will be supervised and J's needs will be reviewed by the 'Locked After Child' process.

17. In my judgment, this document could not be clearer. The local authority was not asking for a determination of the threshold criteria under section 31 of CA 1989: it was applying for an interim order and for further assessments of JF and her parents.

18. The same message emerges very clearly from the statement of the social worker, LD dated 23 January 2007. At paragraph 7.1 she says in terms:-

The plan is for J to remain in foster care and have contact with Mr and Mrs F, the contact will be supervised.

It is anticipated that Mr & Mrs F will remain at their current address and engage with work directed by the Court or Children's Social Care.

The Local Authority respectfully ask the court to consider the making of an Interim Care Order for J. The plan is for J to remain in foster care to enable an assessment to be carried out to ascertain a plan that will ensure J's long term safety.

19. The threshold criteria for the making of an interim order are not, of course, the same as they are for a full care order. Section 38(2) of the Children Act 1989 provides that "a court shall not make an interim care order …… under this section unless it is satisfied that there are reasonable grounds for believing that the circumstances with respect to the child are as mentioned in section 31(2)". This is, plainly, both a different, and a lower test.

20. On 12 March 2007, however, the case appears to have taken a completely different direction. By this time the case had been transferred to the County Court, and District Judge Dowell gave directions. This is an important order, and I propose to set it out in full. It begins by recording that it was made upon hearing the advocates for the parties and on the basis of two recitals. These are in the following terms:-

1. The parties agree to JF's continued accommodation under S.20 Children Act 1989 and undertake to give at least seven days written notice of any wish to remove her.
2. Somerset County Council and the parents agree that contact for each of the parents shall be supervised and shall be over two separate sessions per week which each together shall total at least one hour and 45 minutes.

21. The order is then in the following terms: -

1. Somerset County Council shall by the 2nd April 2007 file and serve
(a) any further statements or evidence upon which they seek to rely;
(b) The document specified in schedule 1;
(c) A "Scott Schedule" of the facts they seek to prove at the fact finding hearing ordered on such facts to form the sole basis of the threshold grounds.

2. Each parent shall by the 23 April 2007 file statements.

3. The father shall by 23 April 2007 file and serve copies of all JF's Medical Records and health visitor notes.

4. Avon and Somerset Constabulary do by 26th March 2007 provide to Somerset County Council the video of the CAMAT interview of the said child. The Constabulary may apply within seven days of this order being served on them to vary or discharge it.

5. Somerset County Council to indicate by the 19th Marcy 2007 if they seek to reply on the report of JM dated 12 March 2003 and if they do not rely on his report then it is to be removed from the bundle. If he is to be relied upon he is to attend the hearing.

6. List this matter on 23-25 May 2007 at Taunton County Court at 10.30 am before His Honour Judge O'Malley with video viewing facilities to be available.
There be costs in the application.

22. It is plain to me that what the district judge was doing was setting up the first limb of a split hearing in which the judge was to determine whether or not the threshold criteria under section 31 were satisfied. There is, in my judgment, no other possible construction of this order. I therefore have to say that I find it very difficult to understand, given the way the local authority had put its case on paper, why it was that it either acquiesced in, or did not challenge the district judge's order. It was most unfortunate that counsel who appeared both before the district judge and Judge O'Malley did not appear in this court. For the local authority in this court, Mr. Naish was at a loss to explain how it came about that the district judge had made the order she did, which, plainly, took the case in a wholly different direction.

23. Mr. Richard Hickmet, for Mr .F is, of course, entitled to make the point, which he does with force, that even if the hearing before the judge had been along the lines indicated by the local authority in its Form C1, the court would nonetheless have had to grapple with the allegations of sexual abuse. That, of course, is true. The court was bound to investigate those allegations, which were hotly denied by the parents. But there remains, in my judgment, a worrying gulf between what the local authority was seeking to achieve, and what the circuit judge was invited to hear.

24. In paragraph 12 of the initial skeleton argument filed for the application for permission to appeal, counsel for the local authority in the court below sought to explain the document filed by the local authority pursuant to the district judge's order in the following way: -

12. In the light of the District Judge's order the local authority filed a composite schedule of findings sought and threshold criteria document. This was done because the local authority did not seek to rely solely on the allegations of actual sexual harm but also the father's Schedule 1 status and the parents' failure to adhere to the child protection plan as agreed with the Children's Social Care.

13. At the finding of fact hearing the issues before the court were therefore:
(a) whether the evidence of actual sexual abuse was sufficiently cogent for the learned judge to make a finding that JF had been sexually abused by her father.
(b) whether Mr and Mrs F had failed to protect JF;
(c) whether, irrespective of any findings of sexual abuse, Mr F presented a risk of sexual abuse to JF;
(d) if so, whether the parents' failure to adhere to the protection plan for J placed her at risk of sexual abuse sufficient to satisfy the threshold criteria.

25. I have to say that, speaking for myself, I find it extremely difficult to extract items (c) and (d) from the document which the local authority filed. The document itself is dated 22 June 2007 and after repeating the words of section 31 of the Children Act 1989 asserts that the nature of the significant harm "suffered / likely to be suffered" by JF is sexual abuse and emotional harm. It correctly identifies the relevant date as being 10 January 2007 (the date of the institution of the care proceedings). It then puts the local authority's case under three headings, namely (1) sexual abuse; (2) failure to protect; and (3) emotional harm. Under the first, it seeks a finding that Mr F had sexually abused J and then sets out in detail the evidence upon which it relies. I do not propose to set this out, but it consists, very largely, in what JF is alleged to have said to various people.

26. The second finding sought by the local authority is that Mr and Mrs F failed to protect JF from sexual abuse. It is in this context that the local authority relies on an admission by the parents that Mr. F had been involved in JF's personal care in contravention of the agreement that he would not be so involved. The allegation of a failure to cooperate on the parents' behalf is repeated later in the document.

27. The third heading is "emotional harm", and is dependent upon a judicial finding that Mr and Mrs F have coached JF to blame the child * in order to deflect blame from Mr. F.

28. It is, I think, most unfortunate that the local authority's case was presented in this way. If what it was seeking was an interim care order with a view to further assessments of the parents by social workers and of the father by JM, this simply does not emerge from the document filed, and the local authority should never have submitted to the order made by the district judge.

29. This court has said on many occasions that if there is to be what has become known as a "split hearing" in care proceedings, the reason for the first limb of the hearing must be clearly defined, and precisely what the hearing is about should be clearly stated. In the instant case, it is difficult to criticise the judge for conducting a section 31 criteria fact finding hearing. That is what the district judge had set up.

30. Furthermore, the allegation that one or both parties has failed to protect a child from sexual abuse involves a classic trap for the unwary in care proceedings. If the judge (as here) finds that sexual abuse has not occurred – or, more accurately, that the evidence is insufficient to make such a finding – then both as a matter of logic and as a matter of law, there is no sexual abuse from which the child has needed protection.

31. The judge dismissed the allegations of sexual abuse as not reaching the requisite standard of proof, and he held, in the phrase often used in criminal proceedings that the JF's parents had "no case to answer". In addition, he refused an application by the local authority for an adjournment made on the ground that the social worker to whom JF had made her initial allegations was on holiday and unavailable. He also refused the local authority permission to rely on the evidence of JM, and was rightly critical of the local authority both for the manner in which its investigation was conducted, and for submitting the child to a formal genital examination without first seeking the court's permission.

The judgment of HH Judge O'Malley
32. In the first paragraph of his written judgment, the judge identifies the issues before in the following way:

This matter was listed before me for hearing before me on 23rd and 24th May 2007 for the determination of findings of fact and of the threshold criteria. There were allegations that the father had sexually abused his four year old daughter JF and that her mother had failed to protect her. At the conclusion of the evidence called on behalf of the local authority I heard submissions as to whether there was a case for the parents to answer. I decided that there was not, as the quality of the evidence fell substantially below that which would be required to support such findings. As my judgment may be considered as being somewhat critical of the local authority, I have chosen to give my reasons in writing. Following the circulation of this judgment in draft I have readily responded to the welcome request of counsel, for the local authority, to clarify certain of my findings.

33. The judge then sets out the facts leading up to the Child Protection Conference on 10 January 2007. After the abortive attempt formally to interview JF, the judge records:

On 18th December 2006 a student social worker, LH, visited JF at her school as part of ongoing keep safe work. In the course of this work JF was recorded by LH as having told her that her father had touched her private parts. An investigation followed and the matter was taken up with the parents. On the following day LD was allocated as social worker to JF, and JF was CAMAT interviewed, but she did not give any further information. In fact, as I was told, she failed to engage with any of the questioning and preferred to play with the cuddly toy provided. The attempt to interview her was abandoned. The parents, though they denied any impropriety, agreed that the father should stay with friends locally and only attend the family home between 11.00 am and 5.00 pm. A child protection conference was held on 10th January 2007 at which it transpired that the parents had not kept to the letter of this agreement and upon it being proposed that the father should be banned entirely from attending at the home the parents asked for JF to be accommodated voluntarily while they undertook further work to ensure her safety.

So it was that on 10th January 2007 JF was removed to her present foster family, with Ms NC and her partner and their family…. Ms NC had been approved as a foster carer in November 2006 and JF was the first child to have been placed with her. Thereafter there were a number of occasions between January and April 2007 when Ms NC had conversations with JF in which JF made further apparent disclosures of sexually inappropriate actions on the part of the father, or herself behaved in a sexualised manner. Ms NC kept notes of these conversations and events and shared them with social services. I shall return to deal with these shortly.

34. The judge then deals with the child's physical examination by a consultant paediatrician, Dr. N. The judge is critical of Dr N. No permission had been obtained for this examination, and Dr. N asked JF a number of inappropriate and leading questions about her alleged abuse.

35. The judge then refers to the threshold criteria document prepared by counsel, and records the local authority's reliance on the fact that the father had become involved in the personal care of J, despite the parents' agreement that he should not. It was said that the parents had admitted this to social services and the police, although they had later denied it. The judge also made reference to JM's report of March 2003 and to the fact that JM had been present at the Child Protection Conference on 10 January. The judge dealt with the local authority's for an adjournment and its proposed reliance on the evidence of JM in the following way: -

I should deal briefly with a number of preliminary points taken at the hearing before me. At the outset of the hearing the local authority, supported by the guardian applied for an adjournment on the ground that they were unable to call LH, who was said to be on holiday in Thailand and not expected to return for a further two weeks. There was no explanation as to how this had been allowed to happen. Mr Hickmet for the father and Mr Powell for the mother opposed the application. As it was apparent that any adjournment would cause a significant delay to the hearing, and that JF would remain in foster care in the interim. I declined the application. I then heard further submissions regarding the admissibility of the evidence of JM and LH and of NC in respect of some more recent alleged disclosures to her by JF. I accepted Mr Hickmet's contention that in accordance with the guidance given by Wall J in Re CB and JB [1998] 2 FLR 211 that JM's evidence should be excluded. The principal issue in the hearing before me was whether there was evidence of sufficient cogency to find that the father had abused JF. I considered that it was not appropriate to hear evidence from JM as to his opinion the father's alleged propensity so to act. Also I took the view that, since LH's evidence could not be tested. I should regard her statement as no more than explanatory of the background of the local authority's concerns. I held that I should hear all of NC's evidence in evaluating the local authority's case notwithstanding Mr Hickmet's objections as to the quality of that evidence.

36. The judge then relates the fact that he had heard the evidence of the foster mother and Dr N. He also relates the evidence he had heard from the social worker, LD. He is critical of her in several respects:

I heard finally from LD, JF's social worker. She confirmed the contents of her earlier statements and told me that at a lengthy child protection meeting on 10th January 2007 the parents had admitted breaching their agreement with social services regarding the personal care of JF. The parents had preferred JF to go into voluntary care rather than be looked after by the mother on her own, as there was some animosity towards the family from neighbours. She agreed that the parents had raised with social services the question of D's activities, but she reported the meeting's concern (as quoted from her statement) "that JF had been coached by her parents to give an account about D". She acknowledged that there was no evidence to support this concern. She said that the decision to have JF examined by Dr N had been taken by the legal team at the hearing on 6th February 2007 and that it had been her job merely to put it into effect. She accepted that she had suggested to the foster mother that she should question JF about the cream, to find out whether the father kept it. She said that she could not explain why she had done this as she could not remember the context. As to the written statement of NC she said that the local authority's lawyers had asked her to draft this. She said that she could not explain why JF's allegations about D had not been included. She was referred to her report to the meeting on 10th January 2007 where she described going to JF's school with LH to question JF about D. She reminded JF that she had told LH that her father had pulled her trousers down and grabbed her. She asked J if it was D or Daddy who had done this. J had replied "D". LD agreed with my observation that this amounted to a retraction of the original allegation of sexual abuse, but she added that this had happened when JF was still living at home. She was asked by Mr Powell about her view of JF's allegations against D. She replied that JF was only a four year old child and that she may have been telling the truth or speaking parrot fashion.

37. The judge then turns to the submissions made to him and his ruling on them.

"Mr Hickmet, for the father, submitted that there was no case for the parents to answer. In so doing he renewed the many criticisms of the quality of the evidence which he had made from time to time in submission to me and while questioning the witnesses. He referred me to the decision of the Court of Appeal in Re N: (Child Abuse Evidence) [1996] 2FLR 214. In that case the child, who was also four years of age, had imparted information in a video interview, but there had been leading questions and the mother, to whom the original "disclosure" had been made, was present. He referred me also to the decision of Coleridge J in B v Torbay Council [2007] 1 FLR 203 in which the judge voiced the shortcomings even of a CMAT interview as against the giving and testing of evidence in court. Miss Pitchford, for the local authority, accepted that both Dr N and NC has used leading questions, but invited me to find that there was a sufficient case for the parents to answer. She also contended that the allegations in the threshold criteria that the parents had failed to comply with the local authority's plan to secure J's safety, and that the father presented a high risk of sexual abuse to J, survived. Mr Griffin, for the guardian, made no submissions, and informed me that the guardian wished to remain neutral on the present issue."

I have had no difficulty in upholding the submission of no case to answer. It is quite apparent that JF is a very young child. I suggested to counsel that I should view the abortive video interview but they were unanimous in saying that it was unnecessary to do so. I was simply told that the interview, who would obviously have been trained to deal with young children, failed to get JF to engage in answering any of the questions put to her. The local authority's case for a finding that the father abused JF depends on the cogency of J's reported conversations with Dr N and the foster mother. The conversation with Dr N is tainted by the presence of the foster other and the use of leading questions. The conversations with the foster mother were not contemporaneously recorded and again are tainted by the use of leading questions. JF herself is very young. She purported to retract the original disclosure of LH and is recorded by the foster mother as having voiced an incorrect allegation that the foster other had hit her. Above all she is only four years of age and it was not possible for her to be CAMAT interviewed. There are no physical findings to support an allegation of sexual abuse and there is no other evidence to implicate the father. I have formed the clear view that the reports of what she said to Dr N and NC are simply insufficient, by a substantial margin, to lead the court to conclude, in accordance with the test set out in Re H and R (Child Sex Abuse. Standard of Proof) [1996] 1 FLR 60 that she had been sexually abused by her father. I consider the other allegations against the parents, the alleged failure to protect and the degree of risk presented by the father, to be insufficient, on their own, to justify the making of an order under the Children Act 1989. The reality is that the main focus of the local authority's case was on the allegations of sexual abuse. There was virtually no investigation in the evidence before me as to the extent or otherwise of the parents' co-operation with the local authority. Miss Pitchford told me that she would have sought to pursue these allegations with the parents if they had given evidence.

The effect of this finding is to deprive the local authority's case for a care order of its principal ground. I have found that the other allegations are peripheral and insufficient on their own to justify making an order. Accordingly the application for a care order is dismissed. I have stated my view that the local authority's evidence was fell short, by a substantial margin, from that required to substantiate the allegations against the father. I can say that my conclusion is unlikely to have been different if I had heard the evidence of LH and JM.

None of the forgoing is to be taken as any criticism of the actions of NC, the foster mother. All persons involved in the litigation of child care issues have a generally high regard for the work, generosity and commitment of foster parents, and I am very pleased to say NC demonstrated these excellent qualities to the full.

38. The appellant's notice raises 4 grounds of appeal. They are:-

1. The learned judge was plainly wrong to conclude that the Respondent parents should not have to give evidence in response to the Local Authority's threshold criteria.
2. The learned judge was plainly wrong to conclude that the alleged failure to protect by the Respondent parents and the degree of risk presented by the Respondent father were insufficient, on their own, to justify the making of an order under the Children Act 1989, particularly without hearing evidence from the parents on these issues.
3. The learned judge failed to give adequate reasons for concluding that the threshold criteria were not met so far as the threshold criteria related to the alleged failure to protect by the Respondent parents and the degree of risk presented by the father.
4. The learned judge was plainly wrong to exclude in evidence the risk assessments undertaken in respect of the Respondent father, in so far as the Local Authority did not seek to rely on the risk assessment to prove the allegations of sexual abuse, rather that, given the Respondent father's Schedule 1 status and the alleged failure of the Respondent parents to adhere to the child protection plan, the risk assessment was relied upon to demonstrate likelihood/risk of future harm.

The parties' respective submissions
39. For the local authority, Mr. Naish accepts that the judge was entitled to find that the allegations of sexual interference with JF by Mr. F were not made out to the Re H and R (Child Sex Abuse. Standard of Proof) standard. He also accepts that JM's evidence as to propensity was not properly admissible in support of the factual allegation that Mr. F had sexually abused JF. He does not criticise the judge for refusing the local authority's application for an adjournment. The essence of his argument, as it seemed to me, was that the judge's concentration on the allegation of sexual abuse, and on whether or not the threshold criteria under section 31 were made out led him to give insufficient weight to the real risk posed to JF by her father, given the family's circumstances, and, in particular, his schedule 1 status. The judge should, accordingly, have allowed the evidence of JM to be called on the risk assessment issue. Furthermore, the judge had been wrong to introduce the concept of "no case to answer" which, on the authority of the decision of this court in Re Y and K (Children) {2003] 2003 EWCA Civ 669 was wholly inappropriate in care proceedings. Not only were parents compellable witnesses in care proceedings, but they were not entitled to refuse to answer questions – even those which incriminated them – and the judge had been wrong to deprive the local authority of the opportunity to cross-examine them.

40. For the parents, Mr. Powell and Mr. Hickmet both submitted that the judge had been fully entitled to conduct the hearing as he had: that he had tried the case as it had been presented to him. Schedule 1 status was not, of itself, sufficient to cross the section 31 threshold barrier. Since the local authority had not been able to satisfy the standard of proof in relation to the allegations of sexual abuse, the judge had been entitled to find those allegations not made out. This in turn meant that there had been no failure to protect, and the judge was entitled, in these circumstances to discount the secondary evidence of failure to cooperate in the way in which he had. The parents had already been put through one set of proceedings by the local authority. Despite this bruising experience, they were prepared to continue to cooperate, and JF's welfare could be properly fostered without further court intervention.

41. As I have already made clear, I have some sympathy for the judge in the circumstances in which he found himself. His decision to reject the allegations of sexual abuse by Mr. F was, in my view, and as the local authority now accepts, open to him. He was also entitled, in his discretion, to refuse the application to adjourn on the basis that LH was not available. It is difficult to criticise him for dealing with the case as it was presented to him.

42. Despite these considerations, and despite the powerful arguments advanced on behalf of the parents, I have come to the clear view that the outcome achieved by the judge was wrong. That this is so is very largely due to the manner in which the local authority presented its case, and in particular its failure to challenge the order made by the district judge. I am therefore satisfied that there is force in Mr. Naish's submission that the concentration on the allegations of sexual abuse led the judge into an inappropriate dismissal of the real anxiety in the case, namely the risk which Mr. F, as a schedule 1 offender, poses to JF in the particular circumstances of this case.

43. I find myself therefore unable to agree with the judge when he states that he considers "the other allegations against the parents" (which include, of course, the father's inappropriate participation in JF's personal care, Mrs F's inadequacies and the degree of risk presented by Mr. F) are insufficient to justify making an order under the Children Act 1989. He may well have been entitled, on the facts, to discount the failure to protect on the basis that he had found no sexual abuse; but the other factors, in my judgment, warranted at least the consideration of an interim order and further assessments of both parents and the child. To put the matter another way, the judge's concentration on the section 31 threshold criteria closed his mind to the real risks posed to this child in her current environment.

44. I also have to say that, in my judgment, a circuit judge is not necessarily obliged simply to try the case which is put in front of him. He is entitled – indeed obliged – to consider whether or not the case presented to him is being presented as it should be – and that the relief being sought is genuinely in the interests of the child. However, I think it unfortunate that the judge appears to have introduced the concept of "no case to answer" which in my judgment has little or no place in care proceedings under the 1989 Act.

45. In addition, the concentration on the fact of sexual abuse led the judge, in my view, inappropriately to discount the evidence of JM. JM's march 2003 assessment is, in my judgment, a sound piece of work. His subsequent opinions on the risk posed by the father are not, in my judgment, to be sidelined. Because of the emphasis on the factual issue of whether or not there had been sexual abuse, the judge was entitled not to regard JM's evidence as relevant to that issue. But it was relevant to the issue of risk.

46. In summary, therefore, whilst it is, as I say, difficult to criticise the judge for trying the case as the district judge had set it up for him to try, I am in no doubt that the result is wrong. It does not, in my judgment, best serve the best interests of this child.

47. Mr. F must realise that his schedule 1 status is a matter of ongoing concern. He should welcome help and advice on it. The local authority has, hitherto, kept this family together. I anticipate that it would like to continue with the same policy, despite the crassness with which it both investigated the allegations of abuse and presented its case to the judge. It will be a great pity if JM is now excluded from the case on the grounds that he had prejudged Mr. F. But I am in no doubt that it is in JF's interests for her father to be further assessed, and for her father to take advice on how the risk he poses to JF can be minimised. Equally, in my judgment, Mrs. F needs help with her parenting skills and her need to assert herself.

48. Speaking for myself, I do not necessarily see this case back in court. If the parents and the local authority can agree a rigorous programme which meets the objectives set out in this judgment, it may not require another hearing before a court to achieve them. On the other hand, we are exercising a judicial function. The judge's order was, in my view, plainly wrong and must be set aside. The proceedings must be re-instated. If a hearing is required, it will have to be a hearing at which the local authority seeks directions for further assessments. All the arguments available to the parents will remain available. The allegations of sexual abuse which have been determined by Judge O'Malley will, in the absence of any further compelling evidence, remain determined. If the local authority wishes to remove JF from her parents' care, it will have to explain why that course is necessary and persuade a circuit judge that it is in her interests for that to occur. The outcome of any further hearing will be entirely a matter for the judge who takes that hearing. At the same time, I cannot but feel that a proper regime for JF and her parents is capable of being agreed, particularly if the parents are to be found fresh accommodation.

49. I would, accordingly, grant permission to appeal and allow the appeal. I would set aside the judge's order and restore the proceedings. I would direct that any application by the local authority for any order under the Children Act 1989 be heard by a judge other than Judge O'Malley on a date to be fixed as soon as possible, and that the matter be listed as soon as possible for directions before the judge who is to take that hearing.

Mr Justice Blackburne
50. I agree.