H (Children), Re

In care proceedings, factual issues should not be summarily excluded merely because the evidence is difficult or incomplete. The court must consider whether the proposed fact-finding has a real prospect of success, applying an approach analogous to summary disposal under Part 24 of the Civil Procedure Rules 1998. Issues should ordinarily be investigated where they are highly material to the child’s future welfare, contact or case management and the available evidence could support findings. Medical records may remain relevant even where their authors have no individual recollection. A child’s vulnerability requires careful handling, but does not justify excluding an issue without evidence that giving evidence would itself be damaging.

This was an appeal from Brighton County Court against an order made by His Honour Judge Lloyd on 25 October 2002 in care proceedings concerning G. The local authority had initially alleged that the mother had fabricated reports of epilepsy, caused excessive medication to be given, failed to attend medical appointments and provided an unstable home environment.

At a pre-trial review, the local authority no longer sought findings on the alleged misreporting and medication issues. The judge therefore restricted the factual issues for trial, concluding that findings could not properly be made and expressing concern about the possible effect on G’s brother, D, if he gave evidence. The guardian’s application for permission to appeal became a substantive appeal. The central issue was whether those allegations should nevertheless be investigated.

Lady Justice Hale gave the first judgment. Lord Justice Waller agreed entirely with her reasons. The appeal was allowed.

1. Nature of the judge’s decision. The restriction of the factual issues was equivalent, in ordinary civil proceedings, to summary disposal under Part 24 of the Civil Procedure Rules 1998. The relevant question was whether proceeding on the issues had a real prospect of success, in the sense that the court might make findings along the lines originally sought.
2. Materiality. The alleged misreporting and medication issues were important to G’s future welfare, including future questions about contact, possible reunification and case management. Their resolution could benefit both G and the mother. Their importance was not removed because G was expected to remain living with her grandmother.
3. Evidence. The repeated reports of fits, the absence of observed fits when G was in the care of others, medical records from Scotland and evidence from local clinicians provided material capable of supporting findings. The absence of individual recollection by the authors of the Scottish records did not make the records irrelevant; the mother could respond to them and explain them.
4. Witness vulnerability and the second allegation. There was no evidence that giving evidence would itself damage D. If only a statement were relied on and its accuracy challenged, it might not be necessary to call him, and any questioning could be tailored to his vulnerability. Although the allegation of excessive medication was more problematic, the available observations concerning G’s drowsiness and other evidence meant that it was artificial to separate it from the first allegation.
5. Order. The issues should be ventilated at the hearing. The appeal was allowed, with the appropriate order concerning publicly funded parties.

• Court of Appeal (Civil Division): allowed the appeal from the Brighton County Court order of 25 October 2002 restricting the factual issues to be determined in the care proceedings: [2002] EWCA Civ 1692.