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GC v A County Council & Ors [2020] EWCA Civ 848

Appeal by a children's guardian against the decision by HH Judge Watson at a case management hearing to grant the local authority permission to withdraw the proceedings.

Background Facts
This case concerned a child, G, who had sustained a small displaced oblique fracture of the right parietal bone with a 5mm subgaleal haematoma overlying the fracture site. At the stage she was admitted to hospital, none of the adult family members could provide an explanation for the injuries and in the absence of such an explanation the treating doctors concluded that the injuries had been inflicted non-accidentally. Proceedings were instigated firstly for an EPO, and then ICO, with G and her mother residing at a mother and baby foster placement. A fact finding hearing was listed July 2020. The findings sought by the local authority in its 'threshold' document included 'that the mother and/or the father are unable or unwilling to account for this injury and they are either responsible for causing this injury to G and/or know who was responsible for causing this injury and are withholding this information, thus failing to protect G whilst in their care or the care of another'. In the course of the police and social services investigations, the mother reported that G had fallen off a bed on 12 December 2019 and that, on another date shortly after Christmas, she had fallen onto a toy truck.

The instructed experts, a consultant neuroradiologist and a retired consultant paediatrician, agreed that the injuries probably occurred at the same time. Dr Saunders advised on the basis of the CT scan performed in hospital on 4 January that the fracture was sustained in the period of ten days prior to the scan. Dr Rylance's opinion as to timing was more precise.

Following the experts' first reports, the grandparents told a social worker about a further incident said to have occurred on the late morning of 3 January when G had fallen while pushing a baby walker and hit the side of her head on a wooden play table. They also said that they had mentioned this incident to a triage nurse at hospital. Their accounts, in statement form, were shown to the experts. Dr Rylance concluded that the incident described by the grandparents was 'a plausible cause'. Dr Saunders' opinion was that he cannot say it was a 'likely' clause, but that it could not be excluded as a remotely possible cause of the fracture. Subsequently, in an experts' meeting Dr Saunders added that the fall onto the table described by the grandparents was 'highly unlikely but not impossible' as a cause of the injuries. Dr Rylance made a number of observations about the proposition, concluding that he could not exclude it as the cause.

The next case management hearing was listed on 12 June, two days after the experts' meeting. On the day before the hearing, the local authority informed the parties that they intended to apply for permission to withdraw the application for a care order. At the hearing, the application was supported by the parents but opposed by the guardian. After hearing argument, the judge delivered a judgment in which she granted the application. The guardian applied for permission to appeal the decision, which the judge refused.

The Legal Framework

The Court of Appeal set out the legal framework as follows:

• Under rule 29.4(2) of the Family Procedure Rules 2010, a local authority may only withdraw an application for a care order with the permission of the court.

• The following cases were also referred to: London Borough of Southwark v B [1993] 2 FLR 559, A County Council v DP and others [2005] EWHC 1593 (Fam) (McFarlane J, as he then was), Redbridge London Borough Council v B and C and A [2011] EWHC 517 (Fam) (Hedley J), Re J, A, M and X (Children) [2014] EWHC 4648 (Fam) (Cobb J), and A Local Authority v X, Y and Z (Permission to Withdraw) [2017] EWHC 3741 (Fam) (MacDonald J). The latter three cases were decided following the implementation of the Family Procedure Rules 2010 which, unlike their predecessors, include the overriding objective in rule 1.1.

The Court of Appeal endorsed the approach evolved in the first instance decisions noted above, which were summarised as follows:

(a) the necessity of the investigation and the relevance of the potential result to the future care plans for the child;

(b) the obligation to deal with cases justly;

(c) whether the hearing would be proportionate to the nature, importance and complexity of the issues;

(d) the prospects of a fair trial of the issues and the impact of any fact-finding process on other parties;

(e) the time the investigation would take and the likely cost to public funds.

The first instance judgment
In the approved note of judgment, the judge concluded that the local authority have insufficient evidence to cross the threshold, and that it is not necessary, proportionate to pursue a fact find.

The appeal

The guardian's grounds of appeal were as follows:

(1) The judge was wrong, in both fact and law, to determine the issue of threshold criteria summarily, without the benefit of hearing and testing the primary lay and expert evidence.

(2) The judge was wrong, in both fact and law, to take a narrow interpretation of the expert evidence without considering the wider purview of the expert position.

(3) The judge was wrong to conclude that the expert evidence could not satisfy the threshold criteria in s.31 of the Children Act 1989.

(4) The judge was wrong to confine her decisions to the facts of the threshold criteria. She should have looked at the wider picture of the child's welfare.

(5) The judge failed to adequately scrutinise the child in need plan.

In short, it was argued that the judge wrongly concluded that the case fell into the first category of cases where it was obvious that the threshold could not be crossed and failed to conduct a proper analysis of the factors relevant to the second category. 

Discussion and conclusion

The Court of Appeal concluded that the application made by the LA should not have been made and that the judge was wrong to grant permission to the LA to withdraw the application. Looking at the written medical evidence alone as available to the judge at the case management hearing, the Court of Appeal found that it was not possible for the lower court to conclude that the test for granting permission to withdraw the proceedings was satisfied.

The Court of Appeal also made clear that a judge does not look at evidence in isolation. Each piece of evidence must be considered in the context of all the other evidence (Re T [2004] EWCA Civ 558, [2004] 2 FLR 838), and that whilst appropriate attention must be paid to the opinion of medical experts, those opinions need to be considered in the context of all the other evidence (A County Council v K, D & L [2005] EWHC 144 (Fam) at paragraphs 39, 44 and 49).

The Court of Appeal reiterated that the role of the judge is crucial, as observed in Re S (A Child) (Care Proceedings: Surrogacy) [2015] EWFC 99 (at paragraph 124):

'It cannot be over-emphasised that it is the judge, not an expert or group of experts, who has the responsibility of making the findings in family cases involving allegations of child abuse. Only the judge hears the totality of the expert evidence, including cross-examination by specialist counsel which often, as in this case, brings to the fore issues that are less apparent from the written reports. Only the judge considers all the expert evidence together, and has the opportunity to identify strands and patterns running through that evidence. And only the judge is able to consider all of the evidence – including expert medical evidence and the testimony of family members and other lay witnesses.'

In the view of the Court of Appeal this is a 'paradigm example' of a case where a judge needs to hear all the evidence, to assess whether the lay witnesses' evidence is truthful, accurate and reliable, and evaluate the medical opinion evidence, tested in cross-examination, in the context of the totality of the evidence, and that it was simply not possible for the judge to reach a conclusion as to the cause of G's injuries on the basis of the written evidence alone. It was impossible for the judge in this case to conclude that the case fell into the first category, namely that there was 'insufficient evidence to cross the threshold', and in those circumstances, the judge had to consider the factors identified by McFarlane J in A Local Authority v DP. Applying those factors to this case, it is clear that the fact-finding hearing was required and must go ahead.

In short, the Court of Appeal concluded that having regard to the child's welfare as the paramount consideration, and the overriding objective in FPR r.1.1, it is plain to that the fact-finding hearing should go ahead and that the local authority's application to withdraw the proceedings should have been refused.

Summary by Emily Ward, Barrister and Deputy Head of Family at Broadway House Chambers

Read the full judgment of GC v A County Council & Ors [2020] EWCA Civ 848 on BAILII