W (A Child), Re

In care proceedings, a court may decline to reopen an historical investigation where the evidence offers no real prospect of a clear and reliable finding, particularly if the inquiry would cause disproportionate delay and expense. Past events may remain relevant to a child’s welfare without requiring precise findings about causation. A local authority need not establish adult responsibility for an earlier child’s death to cross the section 31 threshold where the present case is already grave. An appellate court should not interfere with such a case-management discretion unless the decision was plainly wrong.

M died in 1999 after medical investigations failed to establish the cause of death. His mother was acquitted of murder after the confession relied upon by the prosecution was rejected as unreliable. In 2008, care proceedings concerning M’s younger sibling, E, followed a serious incident which raised concerns about E’s safety, and E was placed with foster carers.

At a preliminary case-management hearing, HHJ Horowitz QC declined to conduct a further fact-finding exercise into the precise cause of M’s death. The local authority sought permission to appeal, arguing that the decision was plainly wrong and that investigation of M’s death was necessary for decisions about E’s welfare and the section 31 threshold. The central issue was whether that historical investigation was necessary and proportionate.

Decision

1. Application refused. The Court of Appeal unanimously refused the local authority’s application for permission to appeal.
2. HHJ Horowitz had directed himself by reference to the factors identified by McFarlane J in A County Council v DP, RS, BS [2005] 2 FLR 1031, which had subsequently been approved in F H (Children) [2008] EWCA Civ 1249. Although one factor was not separately headed in the judgment below, it had been considered. The judge had therefore applied the correct legal approach and weighed the relevant considerations. The decision was not plainly wrong.
3. The circumstances of M’s death remained relevant to E’s welfare, but the medical evidence made adult intervention impossible to establish and left epilepsy equally possible. The court could draw a boundary between that unresolved issue and other, separable evidence from M’s life. A renewed inquiry involving several experts would burden and delay the determination of E’s future and would be plainly disproportionate.
4. The local authority’s case concerning E was already of considerable gravity. Crossing the section 31 threshold did not depend on obtaining evidence establishing the mother’s adult responsibility for M’s death. The assessment of the mother’s mental health remained important, but her present stability and wellbeing were of greater relevance than her condition as a vulnerable 17-year-old.
5. The judge was entitled to hesitate before ordering an inquiry which offered no real likelihood of producing a clear finding either way. The conclusion fell comfortably within his discretion.

• Court of Appeal (Civil Division): On 18 March 2009, permission to appeal was refused. [2009] EWCA Civ 1587
• Milton Keynes County Court: HHJ Horowitz QC decided at a preliminary case-management hearing not to conduct a fact-finding exercise into the precise cause of M’s death.