A (Children), Re

In care proceedings, the statutory threshold must be established by circumstances existing when protective intervention began. Later-acquired material may nevertheless prove that earlier state of affairs, including by explaining concerns already present at the time. The process must be fair and give parents a proper opportunity to meet the case.

A split hearing determines the threshold only if that is its defined purpose. If a threshold-determinative first limb fails to establish the threshold, the proceedings must be dismissed and an interim care order cannot continue. A first limb confined to a discrete factual issue does not have that consequence. Directions should identify the issues, facts and consequences of each limb with precision.

The mother sought permission, substantially out of time, to appeal interim care orders made in September 2003 and final care orders made in September 2004 concerning her two children. The local authority had initially intervened after the elder child sustained a skull fracture. At a finding-of-fact hearing, the injury was found to have been accidental.

The final hearing proceeded on a different factual basis. Psychiatric evidence diagnosed a personality disorder in the mother and addressed its effect on her parenting. The final judge found that the statutory threshold was satisfied and approved a plan under which the children lived with their father subject to care orders.

The central issue was whether the accidental-injury finding required the proceedings to end, or whether the local authority could rely on later-obtained evidence of a pre-existing personality disorder without commencing fresh proceedings.

1. The court unanimously refused permission to appeal and refused an extension of time. Neither proposed appeal had a reasonable prospect of success.

2. Where a split hearing is intended to determine the threshold under Children Act 1989, section 31(2), a finding that the threshold is not met requires dismissal of the proceedings. The court cannot maintain the proceedings or make an interim care order if the statutory criteria for such an order are absent.

3. That principle did not apply here. The September 2003 hearing was properly characterised as a finding-of-fact hearing on whether the skull fracture was accidental. It was not a hearing intended to determine the entire threshold. The directions, the psychiatric instruction and the absence of an application to dismiss showed that the threshold was left for final determination. The interim-care jurisdiction therefore continued.

4. The court applied the approach in Re G (Care Proceedings: Threshold Conditions) [2001] 2 FLR 1111. Material discovered after intervention may be relied on if it proves a state of affairs that existed when proceedings began. The mother's personality disorder predated intervention and explained behaviour that had already concerned the local authority. A later threshold statement and the psychiatric evidence gave the mother fair notice of the case she had to meet. There was consequently no unfairness and no need to begin fresh proceedings.

5. The final judge was entitled to find that the children would be likely to suffer significant harm if returned to the mother. Her findings and welfare evaluation were open to her.

6. The court added guidance for split hearings. The order establishing the first limb should state precisely whether it decides the threshold or a discrete factual issue, identify the facts relied on, and record the consequences once judgment is given.

• Court of Appeal (Civil Division) — refused the mother's applications for permission to appeal and for an extension of time: [2006] EWCA Civ 714.
• Leeds County Court — HHJ Grenfell made interim care orders on 15 September 2003 after finding that the child's skull fracture was accidental. HHJ Finnerty made final care orders on 24 September 2004 after finding the threshold satisfied on the basis of the mother's personality disorder and its effect on the children.