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H-L (Children - Summary Dismissal of Care Proceedings) [2019] EWCA Civ 704

This was a successful appeal by the Local Authority against the decision of HHJ Wicks dismissing care proceedings at an interim procedural stage, against opposition from the Local Authority and Children’s Guardian. The Court of Appeal determined that the Judge had erred in finding that threshold was not crossed and that he should not have summarily dismissed the proceedings [46].

The background is set out in detail within the judgment [13]. The court was concerned with the welfare of two children Lara (7) and Nina (3). The girls had the same mother but two different fathers. In May 2018 Nina stayed overnight with her father, was returned to her mother's care and then looked after by a family friend for the day. In the evening the mother noticed Nina's body was covered in bruises. Nina was taken to hospital where a child protection examination was carried out. The paediatrician gave the opinion that it was highly likely the bruising was non-accidental [14].

Thereafter the Local Authority insisted that the girls moved to live with their respective fathers. Notwithstanding that Nina was in her father's care during a period when the injuries might have been inflicted. The mother reluctantly complied being unaware that the Local Authority was not entitled to insist. The Local Authority did not issue proceedings until 23 August 2018 when they sought interim supervision orders and an expeditious fact-finding hearing.

The proceedings
There were eight hearings between September – December. the first conducted by a District Judge, and all the subsequent hearings conducted by the allocated judge, HHJ Wicks. It was initially accepted that threshold was crossed and this was recorded in the court orders.

However at a hearing on 1 November a discussion about 'the relevant date' for proving threshold commenced [24]. The Local Authority vacillated between submitting the relevant date was 14 May and the date of issuing proceedings (August). At that stage the Judge suggested that concluding that threshold was not crossed and dismissing the application could expedite the proceedings. The Judge listed this issue for legal argument on 23 November.

Peter Jackson LJ sets out in some detail the submissions made to the Judge on 23 November [26 – 29]. There are long extract of the exchanges between the Judge and counsel for the Local Authority who pressed her case that the dismissal of proceedings would mean there would be no determination of the issues.

The decision of HHJ Wicks
The Judge dismissed the proceedings in a reserved judgment given on 7 December [30]. He amended the earlier orders that recited that interim threshold had been crossed and substituted recordings that threshold was in dispute. This was purportedly done "pursuant to the slip rule".

The Judge considered that the relevant date for determining threshold was 23 August (date of issue) and that at that date the children were not suffering/ at risk of suffering significant harm.  The Judge therefore based his decision that threshold was not crossed on the Local Authority's delay in issuing the proceedings and on arguments that Nina was said to be doing well in her father's care.

The Judge also accepted argument put on behalf of Nina's father that if the mother wished to resume care of the girls there would be private law proceedings and therein a fact-finding hearing in respect of Nina's injuries.
Decision of the Court of Appeal
Lord Justice Peter Jackson considered that the appeal 'comprehensively succeeds' [46]. The Judge erred in failing to recognise that the threshold for intervention was plainly crossed on the basis that both children were likely to suffer significant harm arising from the clear evidence of injuries to Nina, for which one or other of her parents might have been shown to be responsible.

Peter Jackson LJ considered that the Judge should not have cast doubt on the analysis of the Court of Appeal in Re S-W [2015] EWCA Civ 27; [2015] 1 WLR 4099. This remains authoritative guidance of the summary determination of public law care proceedings. The Judge should have cautioned himself against terminating the proceedings when the course did not have the support of the Guardian.

Furthermore, "He should ultimately have seen the absurd impracticality of this unprecedented outcome, and the inappropriateness of private law proceedings as a surrogate forum for child protection. The injuries to this child cried out for investigation and the law, far from preventing it, positively demanded it." [46]

The Court of Appeal set aside the Judge's order dismissing the proceedings. The case was remitted to a different judge such that directions could be given for a hearing determining the causation of Nina's injuries.

Summary by Imogen Lloyd-Thomas, barrister, 1KBW

You can read the full judgment of H-L (Children - Summary Dismissal of Care Proceedings) [2019] EWCA Civ 704  on BAILII