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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Derbyshire County Council v AA & Ors [2022] EWHC 3404 (Fam) (05 December 2022) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2022/3404.html Cite as: [2022] EWHC 3404 (Fam) |
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2022.
It consists of 28 paragraphs. The judge gives leave for it to be reported in this anonymised form. 2022] EWHC 3404 ( Fam) | ||
FAMILY
DIVISION
Strand, London, WC2A 2LL |
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2022 |
B e f o r e :
____________________
| DERBYSHIRE COUNTY COUNCIL |
Applicant |
|
| - and - |
||
| AA |
First Respondent |
|
| - and - |
||
| BA |
Second Respondent |
|
| - and - |
||
| X (a child, through his Children's Guardian) |
Third Respondent |
|
| - and - |
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| UNIVERSITY HOSPITALS OF DERBY & BURTON NHS FOUNDATION TRUST |
Intervener |
____________________
Mr Brendan Roche KC and Ms Helen Knott (instructed by Nelsons Solicitors) for the First Respondent
Ms Shiva Ancliffe KC and Mr Chris Adams (instructed by Timms Solicitors) for the Second Respondent
Ms Kathryn Taylor (instructed by Smith Partnership Solicitors) for the Third Respondent
Ms Zoe Henry (instructed by University Hospitals of Derby & Burton NHS Foundation Trust) for the Intervener
Hearing dates: 5 December
2022
____________________
Crown Copyright ©
2022.
It consists of 28 paragraphs. The judge gives leave for it to be reported in this anonymised form. Mrs Justice Lieven DBE :
family
member. For two weeks of every month, he lives in Derbyshire with both parents and the mother's mother (X's grandmother). However, the other two weeks are spent in West Sussex 'with his grandmother…' and one of his parents. This obviously involves a significant journey every two weeks from West Sussex to Derbyshire. There are other
family
members, who have been approved as supervisors, who supervise at various times. At no stage has X been removed from his parents' care. Throughout this period of intensive supervision and oversight from the Local Authority (including visits and phone calls), at no point has there been any doubt about the quality of care that the parents are giving to X or any other concerns about their parenting.
familial
background here is that BA has three adult children and neither parent has had any previous involvement with social services before the facts of this case. It is agreed by all parties that there are no risk factors or red flags concerning either parent in this case, such as those which were set out by Peter Jackson J (as he then was) in Re BR (Proof of Facts) [2015] EWFC 41.
Family
Division's recent 'View' dated 29 November
2022,
in which he stresses the need for the
Family
Justice System to focus its energies on what is really necessary and in particular to try and get back to, or closer to, the principles of the Public Law Outline ['PLO']. BRKC is supported in his position by SAKC. I note that BRKC's position in this respect is set out in his position statement and neither SNKC or KT have suggested that they were not fully prepared to deal with this argument today.
Family
Procedure Rules 2010 ['FPR'] and the overriding objective at FPR r1.1, which includes ensuring that the case is dealt with expeditiously and fairly, proportionately, and with fair allocation of resources. FPR r1.1 states:
(1) These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved.
(2) Dealing with a case justly includes, so far as is practicable –
(a) ensuring that it is dealt with expeditiously and fairly;
(b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;
(c) ensuring that the parties are on an equal footing;
(d) saving expense; and
(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases.
family
cases has recently been considered in the context of private law cases in the judgment of K v K [
2022]
EWCA Civ 468 by the Court of Appeal. At paragraph 66 of that judgment, the Master of the Rolls says:
"the main things that the Court should consider in deciding whether to order a fact-finding hearing are: (a) the nature of the allegations and the extent to which those allegations are likely to be relevant to the making of the child arrangements order, (b) that the purpose of fact-finding is to allow assessment of the risk to the child and the impact of any abuse on the child, (c) whether fact-finding is necessary or whether other evidence suffices, and (d) whether fact-finding is proportionate."
EWHC
1593, where McFarlane J, at para 24, states:
"The authorities make it plain that, amongst other factors, the following are likely to be relevant and need to be borne in mind before deciding whether or not to conduct a particular fact-finding exercise:
a) The interests of the child (which are relevant but not paramount)
b) The time that the investigation will take;
c) The likely cost to public funds;
d) The evidential result;
e) The necessity or otherwise of the investigation;
f) The relevance of the potential result of the investigation to the future care plans for the child;
g) The impact of any fact finding process upon the other parties;
h) The prospects of a fair trial on the issue;
i) The justice of the case.'
EWHC
3342 and A Local Authority v W and Ors (Application for Summary Dismissal of Findings) [2020] EWFC 40, both on the approach to fact finding. I note that in McDonald J's decision in A Local Authority v W, he found that there was no power to strike out a public law care application, but that there were case management powers to determine what facts, if any, needed investigating before the court could reach its determination.
"The factors identified in Oxfordshire should therefore be approached flexibly in the light of the overriding objective in order to do justice efficiently in the individual case. For example:
(i) When considering the welfare of the child, the significance to the individual child of knowing the truth can be considered, as can the effect on the child's welfare of an allegation being investigated or not.
(ii) The likely cost to public funds can extend to the expenditure of court resources and their diversion from other cases.
(iii) The time that the investigation will take allows the court to take account of the nature of the evidence. For example, an incident that has been recorded electronically may be swifter to prove than one that relies on contested witness evidence or circumstantial argument.
This is probably not relevant here.
(iv) The evidential result may relate not only to the case before the court but also to other existing or likely future cases in which a finding one way or the other is likely to be of importance. The public interest in the identification of perpetrators of child abuse can also be considered.
I don't think SNKC relies on this.
(v) The relevance of the potential result of the investigation to the future care plans for the child should be seen in the light of the s. 31(3B) obligation on the court to consider the impact of harm on the child and the way in which his or her resulting needs are to be met.
(vi) The impact of any fact finding process upon the other parties can also take account of the opportunity costs for the local authority, even if it is the party seeking the investigation, in terms of resources and professional time that might be devoted to other children.
(vii) The prospects of a fair trial may also encompass the advantages of a trial now over a trial at a possibly distant and unpredictable future date.
This probably does not apply here.
(viii) The justice of the case gives the court the opportunity to stand back and ensure that all matters relevant to the overriding objective have been taken into account. One such matter is whether the contested allegation may be investigated within criminal proceedings. Another is the extent of any gulf between the factual basis for the court's decision with or without a fact-finding hearing. The level of seriousness of the disputed allegation may inform this assessment. As I have said, the court must ask itself whether its process will do justice to the reality of the case."
Decision
family
and normal
family
relations. This would be wholly justifiable if the evidence suggested that it was necessary in order to safeguard X. But it does not appear to me that the evidence is now supportive of that position.
family so far, it is extremely unlikely that (even if all of the facts were found) any Court would remove X from the care of his parents. That is not a realistic prospect given all that has happened over the last 18 months. SNKC submits that removal is a possibility but, in my view, on the evidence it is highly unlikely. He says there could be a care order at home. But we know that the latter course of action has been discouraged in all but the most necessary of circumstances. I cannot see that such an order would be justified on the facts of this case. Therefore realistically, in all probability, the Court is only going to be considering whether to make a supervision order with X living at home, and some form of safety plan in place.