H & W (Children), Re

Permission to appeal in care proceedings should be granted where the proposed grounds have a real prospect of success. This may include challenges to the factual causation of an alleged injury and to the conclusion that threshold criteria are met. The threshold analysis must consider whether significant harm is established and whether it is attributable to care that it would not have been reasonable to expect a parent to give. Fact-finding and threshold findings are not rendered academic merely because children have returned home.

HHJ Bond made findings of fact in care proceedings concerning two children. He found that the father had injured the younger child’s throat while attempting to clear mucus, but that an alleged clavicle fracture had not been proved to be non-accidental. He concluded that the throat injury satisfied the threshold criteria and made a related finding concerning the older child.

The mother appealed, challenging causation and the conclusions on significant harm and attribution to unreasonable parental care. The Court of Appeal considered whether the grounds had a real prospect of success despite the children having returned home under an interim supervision order.

1. Permission granted. Lady Justice Black, with whom Lord Justice Ward agreed, granted permission on all grounds. The challenge to the finding that the father caused the throat injury had a real prospect of success because the medical evidence was difficult and uncertain and the child had multiple unusual symptoms.
2. The proposed appeal also had a real prospect of success on whether the findings established significant harm and whether any harm or likelihood of harm was attributable to care that it would not have been reasonable to expect a parent to give. The father’s conduct required assessment in its factual context, including his anxiety, panic and apparent attempt to assist a distressed child.
3. The factual characterisation of the conduct mattered. Literally inserting a finger down a baby’s throat could appear wholly extraordinary, whereas a finger extending only slightly beyond the mouth while attempting to relieve a breathing or choking problem presented a different question concerning danger, proportionality and reasonableness. These issues were left for the substantive appeal.
4. The proceedings were not academic merely because the children were living at home under interim supervision. Findings against a parent could remain on social-services records and have continuing significance. The local authority could consider conceding the appeal if no further purpose would be served by continuing the care proceedings.
5. The court granted permission to appeal; it did not finally determine causation, significant harm, attribution or the threshold.

• Court of Appeal (Civil Division): Permission to appeal granted on all grounds from the findings and threshold conclusions of HHJ Bond: [2011] EWCA Civ 1027.
• Bournemouth District Registry: HHJ Bond made findings of fact and concluded that the threshold criteria were satisfied in relation to the younger child, with a related finding concerning the older child.