Tuesday, March 15, 2011

Re A (a child): Withdrawing care proceedings where the child has suffered significant harm

In Re A (a child) [2011] EWHC 517 (Fam) Mr Justice Hedley considered the unusual circumstance of an application by a local authority for permission to withdraw care proceedings, notwithstanding that the child ('A') had sustained injuries which amounted to significant harm.

The facts: A was born in 2009. From birth he has suffered from a very severe neurodevelopmental and neuromuscular disorder, resulting in 'both complex and demanding care needs', which have been met essentially by his parents.

The proceedings came about as a result of a scan in January 2010 which demonstrated fractures of the 5th and 6th ribs on the right side, the 7th rib on the left side and (very unusually) bilateral acromial fractures. Since no explanation was forthcoming for these injuries, the working diagnosis was that they were inflicted and care proceedings were instituted. A has, however, remained with his parents, albeit with supervision.

Expert evidence concluded that the injuries were caused by an episode (or episodes) of squeezing of the chest, a finding accepted (or at least not contested) by all parties. No-one sought to suggest otherwise than that the infliction of the injuries amounted to significant harm. However, at the time that the injuries were sustained A was an in-patient in hospital and there was a real possibility that the injuries could have resulted from handling by medical staff.

It was clear 'that the commitment of the parents to A is unquestioned and that the general standard and effect of the care given by them is admirable'. No-one sought to (or could) suggest a viable alternative to care by his parents which would promote the welfare of this child, and this was reinforced by the reduction in the supervision of their care. Accordingly, the local authority applied for permission to withdraw the care proceedings.

Held: Mr Justice Hedley found (at paragraph 13) that on the evidence it was not justifiable to exclude the possibility that the parents (or either of them) caused the injuries. Accordingly, following Lancashire County Council & Anor v. Barlow & Anor [2000] UKHL 16, he concluded "that had this matter been tried out it was highly probable that the local authority would have established the threshold criteria".

It therefore followed that the question of withdrawal must be determined on a welfare basis. Both the local authority and the guardian were of the view that A's welfare would be best served by his remaining in the care of his parents, and Mr Justice Hedley reminded himself (at paragraph 16) that nothing has been proved against the parents. Indeed, he said that: "Certainly one can be confident that, whatever may have happened in this case, these parents have never inflicted deliberate harm on this child."

"In those circumstances", he said (at paragraph 17), "it seems clear to me that were this case to have been heard it would almost inevitably result in the conclusion that the outcome was governed by Section 1(5) of the Act with the making of no order". He therefore acceded to the local authority's application to withdraw the proceedings.

He added (at paragraph 18):
"It is important that the court's conclusion that the threshold may have been crossed is not understood as implying criticism of the parents. Such a finding will of course usually do so but it is not inevitable having regard to Section 31(2) as understood in the Lancashire case. It is not intended to do so here. On the contrary, the parents' fortitude in the face of the disabilities of their first child and the pressures of the proceedings and the scrutiny to which they have (properly) been subjected can only excite admiration. ... Moreover, I gave permission to withdraw not only because of the prospective outcome but because (insofar as the evidence went) I am entirely satisfied that it is in the interests of A that he is brought up by his parents without the compulsive intervention or supervision of the State."

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