Somerset County Council v DFM (The Father) & Anor

In care proceedings, a split hearing must have a clearly defined purpose, issues and proposed relief. A court must distinguish a final threshold inquiry under section 31 from the lower interim-care-order test in section 38(2) of the Children Act 1989.

Failure to prove historic sexual abuse may defeat a failure-to-protect allegation founded on that abuse. It does not remove the need to assess independent prospective risks to the child. Evidence of a parent’s propensity may be unsuitable to prove a past act, yet remain relevant to risk assessment and to the need for further assessment. The criminal-law concept of no case to answer has little or no place in care proceedings.

The local authority began care proceedings seeking an interim care order and further assessments of a child and her parents. The child was voluntarily accommodated under the Children Act 1989.

After transfer to the county court, a district judge directed a fact-finding hearing on the section 31 threshold criteria. HHJ O’Malley found that the evidence did not establish that the father had sexually abused the child, upheld a submission of no case to answer, and dismissed the proceedings. He also treated the remaining allegations, including risk arising from the father’s previous offending and the parents’ non-compliance with protective arrangements, as insufficient.

The local authority appealed. The central issue was whether dismissal after the unsuccessful sexual-abuse allegation improperly failed to address the separate risk case and the need for interim relief and further assessments.

1. Appeal allowed. The judge’s dismissal order was set aside and the proceedings were restored. Any further application was to be heard by a different judge, who would first give directions and then consider whether further assessments, including under an interim care order, were required.

2. The judge was entitled to reject the allegation of historic sexual abuse on the evidence available and to refuse an adjournment for the unavailable social worker. The unsuccessful allegation also permitted him to discount a failure-to-protect allegation which depended on sexual abuse having occurred.

3. However, the result was wrong. The local authority had originally sought interim relief and assessments, but the district judge’s directions had converted the matter into a full section 31 threshold fact-finding hearing. The local authority should have challenged that course. Nevertheless, the circuit judge was not confined to trying a case presented in a form which did not properly address the child’s interests.

4. Section 38(2) of the Children Act 1989 imposes a different and lower threshold from a final section 31 determination. The father’s previous offending, his participation in the child’s personal care contrary to safeguards, the mother’s difficulties, and the wider family circumstances warranted consideration of interim protection and further assessment. The judge’s focus on whether sexual abuse was proved had obscured those independent risks.

5. The earlier expert assessment was not relevant to proving that the father had committed the alleged abuse. It was, however, relevant to prospective risk and should not have been sidelined on that issue. The prior factual finding concerning sexual abuse would remain determined unless compelling new evidence emerged. If removal from the parents’ care were sought, the local authority would have to justify its necessity and show that it was in the child’s interests.

• Court of Appeal (Civil Division): allowed the local authority’s appeal, set aside the dismissal, restored the care proceedings, and directed that any further application be heard by a different judge.

• Taunton County Court: HHJ O’Malley dismissed the care proceedings after finding that the parents had no case to answer on the section 31 threshold allegations.

• Family Proceedings Court: the local authority initiated proceedings seeking an interim care order and further assessments.