Public Law
June 2024

In February 2022 A suffered an episode in the middle of the night whereby she began to scream and arch her back when in her father’s arms. The parents sought immediate medical attention and, following medical investigations, A was found to have suffered bleeding from a ruptured cortical bridging vein.

The local authority issued care proceedings and the matter proceeded to a fact-finding hearing. The findings of the court, made in October 2023, were the subject of a successful appeal to the Court of Appeal Re A (A child)(Fact-finding:-Head Injury)[2024] EWCA Civ 327. Medical expert opinion as to causation differed and the question for any future hearing would be whether the injury was caused by an undisclosed traumatic event or as a result of something natural which occurred, the cause of which was unknown.

The local authority issued an application for permission to withdraw proceedings, the application being supported by the parents and the guardian, and this application was considered by Mrs Justice Judd on 7^th May 2024.

The parents had always denied that any traumatic event had occurred which could have explained the injury. All agreed that apart from the medical evidence by itself there was nothing to suggest that the parents might injure their child.

Since the commencement of proceedings A and her parents had been living with the maternal grandparents. The parents care of their daughter had been fully supervised by their grandparents until December 2023 when the parents were allowed to unsupervised time with A for 3 hours a day, without any concern.

The local authority took the view that A should be able to return to the care of her parents and took the view that this plan would remain the same, even if a new fact-finding hearing was to determine that the injury was caused by one or another of the parents non-accidentally.

The court referred to the very recently handed judgment in Re P and E (Care Proceedings: Whether to hold Fact Finding Hearings) [2024] EWCA Civ 403 which confirmed that the principles to be applied are those set out by McFarlane J in Oxfordshire County Council v DP, RS and BS [2005] EWHC 1593 (Fam)and approved in RE H-D-H [2021] EWCA Civ 1192, namely:-

i)The interests of the child (which are relevant but not paramount);

ii)The time that the investigation will take;

iii)The likely cost to public funds;

iv)The necessity or otherwise of the investigation;

v)The relevance of the potential result of the investigation to the future care plans for the child;

vi)The impact of any fact-finding process upon the other parties.

vii)The prospects of a fair trial on the issue;

viii)The justice of the case.

The judge, applying those principles, confirmed:-

A’s interests were in having a safe and secure home. A had been living with her parents and grandparents for 2 years and was suffering some confusion as to who her primary carers were.

The new fact-finding hearing would take some time to list, would be at least 5 days in length, probably more, and the costs would be considerable.

The evidential result must be said to be unknown, and the outcome of the case was difficult to predict. Even if the injury was inflicted it was an isolated incident, the parents had been genuinely concerned and had sought appropriate medical attention.

The court noted that the central question in the case was the impact of the potential result of the investigation to the future plans for the child and noted that the local authority and guardian considered that there would be little, if any, change to the care plan whatever was the outcome of a new fact-finding hearing.

The judge accepted that there were many cases where children had been rehabilitated after adverse findings had been made against parents and that there had been purpose in holding the hearing in question.

The judge further noted that she considered a fair trial to be possible, but the impact of the length of time since the events in question occurred, and of giving evidence on several occasions, may make it more difficult to get at the truth.

The judge concluded:-

Standing back and looking at all the factors in the case I agree with the parties that it is not in the interests of justice of A, her parents and anyone, to continue to hold another fact-finding hearing. The damaging impact of further stress and delay strongly outweighs such advantage as there is in the court considering all the evidence again to see whether it is possible to achieve a clear answer to what happened. There is no advantage in my opinion to A ‘knowing the truth’ for in fact it may never be known. The parents have cooperated with the authorities all along and there is no doubt they will continue to do so. Family support is strong and the grandparents live very close by and will continue to visit frequently, and at the beginning, every day. Therefore, the parents are supported by those who are best able to discern whether the parents are struggling and need any help or outside intervention. In my judgment it is now right for the proceedings to be brought to an end, and I therefore accede to the application.