The case of GC v A County Council and Ors [2020] EWCA Civ 848 concerned an application for care orders by a Local Authority in respect of a child who had suffered a suspected NAI. The injury was a small fracture and haematoma which the adult family members could not explain, and the child’s treating clinicians concluded that the injuries were inflicted non-accidentally.
The Facts
The application began with an EPO then an ICO with the Child being accommodated with the Mother in a Mother and Baby foster placement.
Expert reports were provided by Dr Saunders and Dr Rylance, following which the child’s grandparents disclosed an incident where the child had hit her head on a wooden play table, which they stated that they had disclosed at the hospital to the triage nurse. Dr Rylance concluded that this explanation was “a plausible cause” of the injury, whereas Dr Saunders described it as “highly unlikely but not impossible” as a cause of the injury. In essence, it could not be excluded as the cause of the injuries.
The LA subsequently applied for permission to withdraw the proceedings, which was granted by the Judge at first instance, who concluded that the LA had “insufficient evidence to cross the threshold”. The LA’s position was supported by the parents. The Guardian subsequently appealed.
The Appeal
The Guardian appealed against the decision stating that the judge was wrong to determine the issue of threshold criteria summarily without the benefit of hearing and testing the primary evidence, and that the judge was wrong to conclude that the expert evidence could not satisfy the threshold criteria.
The Court of Appeal clarified that there are two types of cases where the LA can seek permission to withdraw public law proceedings:
- Where the LA is unable to satisfy the threshold criteria
- Where it is possible for the LA to satisfy the criteria, considering whether withdrawal of the proceedings will promote or conflict with the child’s welfare, and considering the overriding objective of the FPR.
Ultimately, the Guardian’s position was that the Judge had wrongly categorised the case in the first type of application for withdrawal, and the Court of Appeal agreed.
Judgment
Baker LJ drew from his dicta in the earlier case of Re S (A Child) (Care Proceedings: Surrogacy) [2015] EWFC 99 at paragraph 124 that:
“it is the judge, not an expert or group of experts, who has the responsibility of making the findings in family cases involving allegations of child abuse”.
Baker LJ concluded that this case was “a paradigm example of a case where a judge needs to hear all the evidence, to assess whether the lay witnesses' evidence is truthful, accurate and reliable, and evaluate the medical opinion evidence, tested in cross-examination, in the context of the totality of the evidence (paragraph 34)”.
The Court of Appeal concluded therefore that the fact finding hearing should go ahead and the LA’s application to withdraw should have been refused.
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