OXFORDSHIRE COUNTY COUNCIL and D P and R S and B S and by his childrens guardian Suzette Waterhouse
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE McFARLANE,Mr Justice McFarlane |
| Judgment Date | 20 July 2005 |
| Neutral Citation | [2005] EWHC 1593 (Fam) |
| Court | Family Division |
| Docket Number | Case No: OX04C00158 |
| Date | 20 July 2005 |
[2005] EWHC 1593 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mcfarlane
Case No: OX04C00158
John Vater (instructed by Oxfordshire CC) for the ApplicantPiers Pressdee (instructed by Jackson West) for the 1 st RepondentRobin Tolson QC and Susan Freeborn (instructed by Johnson and Gaunt) for the 2 nd Repondent
Michael Trueman ( solicitor advocate) for the 3 rd Respondent
Hearing dates: 19 th and 20 th July 2005
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment is being handed down in private on 20 TH July 2005 It consists of 18 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Introduction
By an application made on the 14 th April 2004, Oxfordshire County Council (the local authority) applied for a care order with respect to 'B S', who was born on 10 th September 2003 and who was then aged 7 months old. For present purposes it is sufficient to summarise the background to the application in the words of the local authority's position statement:
i) 'B S' is the second child of 'D P' (21/1/71) and 'R S' on (15/11/74). 'B's full sister is 'K', born on 17 th January 2001.'DP' and 'R S' were married in October 2001, having met in March 2000.
ii) On 10 th June 2002, a Supervision Order (for 8 months) was made in favour of Oxfordshire County Council in relation to 'K'. That Order followed proceedings in which 'Mr.S' admitted fracturing a number of 'K's ribs non—accidentally—see A6 ff.. Those injuries were found to have occurred during February 2001 on two separate occasions. Happily, following intervention from Dr. Jones and his team at the Park Hospital, it was possible for the family to be reunited.
iii) 'B' was admitted to hospital on 29 th March 2004 in asystolic cardiac arrest. He was alone in his father's care at the time of the collapse. On 30 th March 2004, skeletal surveys revealed a healing undisplaced spiral fracture of the mid/lower shaft of Brandon's right humerus. That injury is thought to be approximately 1–3 weeks old. Concerns were expressed by 'B's clinicians that they were suspicious in relation to both the fracture and 'B's collapse.
iv) 'B' remained in hospital until 2 nd May 2004, when he was discharged into foster care. Fortunately, the parties and the extended families were able to work towards a plan for supervised reunification between Brandon and his mother. A plan of supervised care was agreed in July 2004, and on 23 rd August 2004 'B' was returned to his mother's care, subject to supervision, where he has remained and will remain for the rest of his minority should the Local Authority'. 'Mr. S' has enjoyed supervised contact each week. 'B' has made a full recovery from his injuries.
The Preliminary Issue
By order dated 25 th October 2004 (wrongly dated 2005) [A43], made by the case management judge, Mrs Justice Baron, the application was listed for a 10 day final hearing starting on the 18 th July 2005. At the pre-hearing review before Baron J on the 28 th June 2005, counsel for the 2 nd Respondent father indicated that a preliminary issue was to be raised over the legality and scope of any fact finding exercise.
In summary the preliminary issue raised by the father arises from the fact that, following a full assessment, there is unanimity between all the parties to the effect that neither a care order nor a supervision order is required in this case. There is agreement that 'B' shall continue to live with his mother and 'K' under a residence order and that the father's contact shall remain limited to once per week on a Saturday provided that it is supervised by various approved family members. Whilst the father has conceded that he may have accidentally caused the fracture to 'B's right arm, he does not concede the threshold criteria and makes no admissions about the cause of 'B's respiratory collapse or, if that collapse was inflicted, its perpetrator. The local authority, mother and children's guardian, despite there being agreement as to the orders that are to be made, seek findings of fact against the father with respect to the arm fracture and respiratory collapse. The father claims:
a) That, in the circumstances of no public law orders now being sought, it is unlawful for the local authority to seek such findings and for the court to embark on the proposed fact finding hearing; and
b) If (a) fails, and the court has power to hold a fact finding hearing, the court should exercise its discretion against doing so.
Baron J directed that the preliminary issue be considered by the trial judge at 2.00pm on the first day of the hearing. Due to an administrative error, only counsel for the father attended before me, as the trial judge, at the appointed time on the 18 th July. All the parties, however, attended at 10.30 on Tuesday 19 th July when full argument was heard on the issues raised by the father. At the conclusion of the argument I reserved judgment. In view of the time constraints, and in view of the benefit (if possible) in having a written record of the judgment on this issue, I do not propose to do more than summarise the arguments raised by both sides on this important and apparently novel issue. This course is in no way intended to show disrespect for the full and clear written arguments produced by each party which were supplemented by thoughtful and relevant oral submissions. I hope that it goes without saying that I am extremely grateful to the advocates for the skill that they have each deployed in presenting their cases.
Before turning to the legal arguments that have been raised, it is helpful to consider the reality of the father's position in these proceedings. His formal 'Response to Threshold Findings' dated 4 th July 2005 [prelim pages of bundle page 109] asserts that the fracture to 'B's arm may have occurred on the 19 th March 2004 at bath time when 'B' wriggled free of the father's grasp and the father grabbed his arm to stop him falling. The father does not accept that this concession is sufficient to cross the s 31 threshold. He goes on to deny any attempt to smother or otherwise harm 'B' on the day of his collapse or at any other time.
The father's stated position in relation to 'B', coupled with the earlier findings and risk assessment with regard to 'K', would not normally support the imposition upon him of a regime of restricted supervised contact for the indefinite future, yet he is content to accept just such a regime in this case. Following questions from the court, Mr Tolson explained the father's position in this way:
"He puts up with this contact arrangement because he has a horror of being found guilty of an offence he did not commit [ie the alleged assault leading to 'B's collapse] leading to a possible prison sentence and to putting his relationship with his children in jeopardy."
It is, says Mr Tolson, a pragmatic position.
There is, therefore, in reality, a very wide gulf between the case of abuse asserted against the father and his denial of any culpable behaviour. This gulf is not however reflected in a similar head on clash over the arrangements for 'B's future care, solely because the father, for the 'pragmatic' reasons reported by his counsel, has decided to accept greatly restricted contact arrangements in order to avoid a contested fact finding hearing.
(1) Lawfulness—The Submissions
Mr Tolson's primary submission is that, as there is no effective application for a public law order, any investigation of whether the CA 1989, s 31 threshold is crossed would be unlawful. In particular he submits that:
a) The court in care proceedings can only function within the statutory context established by CA 1989, Part IV;
b) The need for the court to be satisfied about the s 31 threshold only arises if the court is being asked to make a care or supervision order;
c) The line of cases including Stockport Metropolitan Borough Council v D [1995] 1 FLR 873 (see below for list) ('the Stockport cases') where the court has considered whether or not a particular fact finding exercise is justified, have all been cases where some public law order is either agreed or in issue;
d) The local authority are now solely or mainly seeking findings against the father on criminal matters for their own sake;
e) Relying upon both Magna Carta and the ECHR, a finding of fact hearing which is conducted neither within criminal proceedings nor in pursuit of an effective application for a public law order, but in some ill defined statutory vacuum, is neither lawful nor "necessary".
The arguments raised against this position on behalf of the other three parties are:
a) The court is in control of its own proceedings. The public law application has not been withdrawn and, even if all the parties agreed that it should be withdrawn, the court retains a discretion whether to permit such withdrawal and, if withdrawal were refused, may require the local authority to press on with its application;
b) The intended fact finding investigation is lawful in that it comes within the statutory context of the scheme for private law orders (and in particular...
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