Y & K (children) , Re

Care proceedings are a single civil inquiry into the condition and future of the child, although fact-finding, threshold and welfare issues may be determined in stages. A court should not halt a fact-finding hearing while material evidence requiring judicial assessment remains unresolved.

Cogent and agreed expert medical evidence cannot be rejected without a sound evidential basis. A young child’s reported statements must be assessed collectively, with proper allowance for the child’s age, verbal ability and the circumstances in which each statement was recorded.

Parents are compellable witnesses in care proceedings, including at a split hearing. Under section 98 of the Children Act 1989, they cannot refuse to give evidence or answer incriminating questions, although protected answers cannot be used against them in criminal proceedings.

The local authority commenced care proceedings concerning two children after medical examinations and reported statements raised concerns that the elder child had sustained genital injuries through abuse by her stepfather. At a preliminary fact-finding hearing, His Honour Judge Wood heard the local authority’s evidence and then concluded, before the parents gave evidence, that the authority had failed to establish a case requiring an answer.

The local authority and guardian ad litem appealed. They challenged the premature termination of the inquiry, the rejection of agreed expert medical evidence and the treatment of the child’s reported statements. The appeal also raised whether parents may be compelled to give evidence at a split hearing in care proceedings.

1. Appeal allowed unanimously. Lord Justice Thorpe held that the judge had not sufficiently or properly performed the essential task of a causation hearing. The preliminary hearing existed to establish what had happened and to provide a firm factual foundation for the disposal stage. The inquiry could not properly be stopped while the father’s responsibility, the parents’ accounts and other material evidence remained unassessed.

2. The judge was wrong to reject the agreed opinions of the two expert paediatricians. Their opinions were cogent and addressed the shortcomings in the primary material, the competing explanations and the late-emerging hypothesis concerning the child’s anatomy. The arrangements under which the local authority called the experts did not render the evidence unfair or improperly one-sided.

3. The reported statements of the young child required assessment in their totality. Allowance was required for her age, verbal ability, the circumstances in which the statements were recorded and possible preconceptions among listeners. Taken together, however, the statements disclosed a pattern of concern that required proper investigation alongside the medical evidence.

4. Lady Justice Hale held that an application under section 31 of the Children Act 1989 is a single civil application encompassing fact-finding, application of the section 31(2) threshold criteria and the welfare-based discretionary decision. Those issues may be determined in stages, but a split hearing remains part of an objective civil inquiry and is not analogous to a criminal trial.

5. Parents are competent and compellable witnesses in care proceedings, including at a split hearing. Section 98(1) of the Children Act 1989 prevents a person from refusing to give evidence or answer a question because the evidence might incriminate that person or their spouse. Section 98(2) supplies the counterbalance by preventing protected answers from being used in criminal proceedings. If a parent does not give evidence voluntarily, another party may call that parent; ordinarily the guardian will be the most appropriate party.

6. The case was remitted for retrial before a section 9 judge or a circuit judge nominated by the liaison judge. No order for costs was made.

• Court of Appeal (Civil Division): The local authority’s and guardian ad litem’s appeals were allowed. The case was remitted for retrial before a section 9 judge or a circuit judge nominated by the liaison judge.
• Newcastle-upon-Tyne County Court: His Honour Judge Wood terminated the preliminary fact-finding hearing after the local authority’s evidence and held that no case requiring an answer had been established.