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Approach when a local authority seeks permission to withdraw application for care order

Date:26 APR 2018
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Family analysis: Maud Davis, partner at TV Edwards LLP, says the judgment in A local authority v A mother and others [2017] EWHC 3741 (Fam), [2017] All ER (D) 146 (Dec) makes it clear that the risk of significant harm has to be established on the basis of evidence, and not ‘assumptions or speculation on future behaviour’.

What are the practical implications of the judgment?

The judgment makes it clear that however startling or unusual the facts of the case, the basic principles apply. So, even though there was evidence of terrorist connections (in the form of convictions against the father, and the fact that he was subject of a terrorist prevention and investigation measure (TPIM)), the court still had to look at the evidence of significant harm—or risk of significant harm—to the children, in the care of their parents (in line with the threshold criteria set out in s 31 of the Children Act 1989 (ChA 1989)). The risk of significant harm has to be established on the basis of evidence, and not ‘assumptions or speculation on future behaviour’.

MacDonald J refers to the important judgment in Re A [2015] EWFC 11, [2016] 1 FLR 1, with its reminder that facts relied on by a local authority to establish the threshold criteria need to justify any conclusion that a child has suffered, or is at risk of suffering, significant harm.

The court was also clear that the local authority could not use any ChA 1989, s 17 (children in need) work as a way of supervising the children, when the local authority had already accepted that it could not succeed in an application for a supervision order.
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Briefly, what was the background to the case?

The background facts (which do not seem to have been disputed to any significant extent) were that the father had convictions (including for soliciting murder), and he was subject to a TPIM (being appealed by the father). The mother accepted that she had attended demonstrations and protests, but denied holding extremist views (whether shared with the father, or held by herself).

The TPIM required the father to live some distance from the family home. The mother remained living in the home with the children. All the professionals involved agreed that there was no evidence of the children having been radicalised or exposed to extremist material, an important element in this case.

Tellingly, the local authority decided that it should seek permission to withdraw its application for a care order.

How did the court approach the local authority’s application to withdraw the proceedings? How common are such applications in practice?

The court had to decide whether it was plain that the threshold criteria could not be met (in which case the application had to succeed without more); or the threshold criteria could be met, and so the court’s decision had to be determined on the basis that the children’s best interests are paramount.

MacDonald J applied Family Procedure Rules 2010, SI 2010/2955, r 29.4(2) (a local authority may only withdraw an application for a care order with the permission of the court). Importantly, this power constitutes ‘an objective and dispassionate check on whether the local authority should be entitled to disengage from proceedings’ – ‘notwithstanding the emotive subject matter of these proceedings’.

MacDonald J went on to consider Re A as regard the link between the facts pleaded, and establishing significant harm or the risk of significant harm. As he later stated (at para [63]):

‘Whatever the nature of the allegations before the court, any findings the court makes must be rooted in the totality of the empirical evidence before the court, and any inferences it is reasonable to draw therefrom. This fundamental principle applies as much in a case of alleged radicalisation as it does in other cases brought under ChA 1989, part IV. Further, as in all other cases brought under ChA 1989, part IV, in cases of alleged radicalisation and in order to meet the threshold criteria under ChA 1989, s 31(2), the local authority must be able to demonstrate that the facts relied on justify the conclusion that the child has suffered, or is at risk of suffering, significant harm of the type alleged.’

He relied on J, A, M and X (Children) [2013] EWHC 4648 (Fam) with regard to the proper approach in a case where it was possible that the threshold might be crossed, depending on the court’s construction of the evidence. If so, the court had first to consider whether or not it should proceed with a fact-finding exercise, before deciding whether to give permission to withdraw.

As part of that exercise, the court should consider the factors identified in A County Council v DP, RS, BS (By the Children’s Guardian) [2005] EWHC 1593 (Fam), [2005] 2 FLR 1031, and so apply the concepts of necessity and proportionality, those factors being:
  • the interests of the child (relevant not paramount);
  • the time the investigation would take;
  • the likely cost to public funds;
  • the evidential result;
  • the necessity of the investigation;
  • the relevance of the potential result to the future care plans for the child;
  • the impact of any fact-finding process upon the other parties;
  • the prospects of a fair trial on the issue; and
  • the justice of the case.

The court should then crosscheck its conclusion against the ChA 1989, s 1(1) best interests test.

Such applications are unlikely to be common, at least in the future, if pre-proceedings work is effective in identifying those cases in which the threshold criteria are unlikely to be met, or – if met – orders are unlikely to be made. Certainly, as this case makes clear (at para [67]), suspected radicalisation of a parent should not lead to an automatic conclusion that a child will suffer, or be at risk of suffering, significant harm.

What should practitioners be aware of when dealing with local authority applications to withdraw?

The crucial distinction is between cases in which the threshold criteria could not be met (in which case the application had to succeed without more), and those in which the threshold criteria could be met, and so the court’s decision had to be determined on the basis that the children’s best interests are paramount. An early analysis of the threshold facts as pleaded is essential—whoever is being represented—so that the correct approach is taken.

Maud Davis specialises in all children law matters, is Law Society children law accredited, and is a higher rights advocate.
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