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07 OCT 2009

CARE PROCEEDINGS: Re L (Care Proceedings: Risk Assessment) [2009] EWCA Civ 1008

(Court of Appeal; Waller, Ward and Wall LJJ; 7 October 2009)

The child, aged less than 1 year old, was admitted to hospital with serious injuries, including rib fractures and head injuries. The medical evidence was that these were non-accidental; the mother had put forward a variety of innocent explanations for the bruising and the rib fractures, but had no explanation for the other injuries. The local authority took the view that neither parent could be excluded as a possible perpetrator and that whoever was the non-perpetrator was guilty of failure to protect.

The parents, who had separated, both denied responsibility for the child's injuries. In the criminal proceedings the father had been charged with inflicting the injuries on the child and the mother with cruelty based on neglect.

The father, who was a vulnerable adult in terms of IQ and cognitive problems, was represented by the Official Solicitor. The father had been found fit to plead in the criminal proceedings.

There was a fact-finding hearing, at which the father did not give evidence, with the result that the mother was unable to cross-examine him. The judge found that the perpetrator was one of parents, but that it was not possible to decide which. The judge described this as a 'global family failure' to protect the child, and went on to invite the authority 'to draw up a timetable to bring these proceedings to a conclusion with the minimum of delay'. The local authority care plan was for adoption, but in meantime the authority assessed the mother's parenting capacity. The social workers responsible gave a generally positive report, but did not discuss the judge's finding of fact with the mother.

The judge subsequently refused the mother permission to have a risk assessment carried out. The judge also listed the disposal hearing shortly before the hearing of the criminal proceedings against both parents.

The judge's decision to refuse the mother an independent assessment was, on the facts, plainly wrong. The appeal was allowed; the final hearing was to be heard by a different judge.

No criticism could be levelled at the judge for conducting a split hearing, but the court doubted that in fact a separate 'finding of fact' hearing had been necessary; both the reasons for a split hearing and the precise findings to be made by the court should be spelled out.

The judge's comment at the end of the judgment had been capable of only one meaning, and that was that the judge had decided the rest of the case concluding at the fact-finding stage that the only possible outcome was that the child should be adopted. Taking into account the judge's subsequent orders in the case, the judge had prejudged the care proceedings, demonstrating a misunderstanding of the split hearing process. The judge's function at the fact-finding hearing was (1) to decide whether or not the threshold criteria were satisfied and (2) to make findings of fact upon which assessments of the parents could then be made.

Given that the purpose of the fact finding hearing was to inform subsequent assessments, so that any such assessments could be made in the knowledge and on the basis of the judge's findings of fact, it was of the greatest relevance for the assessor to gage the parent's reaction to the judge's findings.

This was plainly a case in which, in the absence of powerful considerations to the contrary, the criminal proceedings should be heard first. There appeared to have been a wholesale ignorance in the care proceedings of what was happening in the criminal proceedings. The courts had reiterated many times the need for close liaison between the care court and the criminal court, and this was particularly relevant in this case, as the mother, who had been unable to cross-examine the father in the care proceedings thus far, would be able to cross-examine him if he chose to give evidence in the criminal proceedings. In any event, the outcome of the criminal trial was plainly relevant to the outcome of the care proceedings, and the criminal trial was likely to throw up material, not currently available, which, in turn, was likely to inform the final hearing of the care proceedings.

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