A County Council v DP & Ors

Properly constituted care proceedings under Children Act 1989 Part IV remain lawful until concluded or withdrawn. The absence of a party seeking a care or supervision order does not itself make a fact-finding hearing unlawful. The section 31 threshold is a jurisdictional gateway to a public law order, rather than the source of the court’s power to investigate relevant facts.

Whether to hold such a hearing is discretionary. The court must assess necessity and proportionality, including the child’s interests, the evidence, future care arrangements, fairness, cost, delay and justice. A hearing may be justified despite agreed final orders where serious disputed allegations are likely to affect future contact or the child’s welfare.

A local authority applied for a care order concerning a child who had suffered a spiral fracture and a respiratory collapse while in his father’s care. The child had recovered and was living with his mother under agreed private-law arrangements. All parties agreed that neither a care order nor a supervision order was then required, and that the father’s contact should remain supervised.

The father accepted that he might accidentally have caused the fracture but denied responsibility for the collapse. The local authority, mother and guardian nevertheless sought findings on both injuries. The father raised a preliminary issue: whether a fact-finding hearing was lawful without a proposed public law order and, if lawful, whether the court should exercise its discretion not to hold it.

1. Preliminary issue determined. The court rejected the father’s challenge and directed that the fact-finding hearing should proceed. The proceedings had been lawfully commenced under Children Act 1989 Part IV. They remained lawful unless concluded or withdrawn. No party’s current position on the order ultimately sought could transform them into unlawful proceedings.
2. The section 31 threshold was a jurisdictional gateway which had to be crossed before a care or supervision order could be made. It was not the decisive question on the legality of holding a fact-finding hearing. Necessity and proportionality under Article 8 of the European Convention on Human Rights concerned the discretionary question, not the prior question of legal power.
3. The court also rejected the submission that agreed withdrawal would automatically end the case. Under rule 4.5(4) of the Family Proceedings Rules 1991, withdrawal required the court to think fit. The court retained a judicial discretion and was not a rubber stamp for the parties’ agreement.
4. In exercising its discretion, the court applied the factors identified in Stockport Metropolitan BC v D [1995] 1 FLR 873 and the associated authorities. They included the child’s interests, delay, cost, evidential outcome, necessity, relevance to future care, the impact on parties, fairness and justice.
5. On the facts, the substantial gap between the father’s limited concession and the allegations, the prospect of future litigation about unsupervised contact, the freshness of the evidence, and the public and child interests in establishing the truth made a hearing necessary, justified and proportionate. The court made no finding on the merits and approached the fact-finding hearing with an open mind.

not stated in the judgment.