Hertfordshire County Council v H

Care proceedings should not continue merely because concerns remain if the local authority cannot establish the statutory threshold on the evidence. The burden remains on the local authority; parental mental health may explain a risk context but cannot prove otherwise unproved harm. An application to withdraw is a welfare decision under Family Procedure Rule 29(4). The court must consider whether continuation gives the child a solid practical advantage, while recognising that proceedings may become redundant or ineffective. The court retains the decision, but an opposing party must provide solid and cogent reasons for refusing withdrawal. Where the alleged inflicted injury cannot be proved and an appropriate support plan is available, continuing proceedings to obtain further psychological explanation is unjustified.

The local authority commenced care proceedings after an infant experienced two life-threatening episodes and was found to have subdural collections. The child was placed with foster carers. Further expert evidence did not establish, on the balance of probabilities, that the child had suffered inflicted injury; possible natural and medical explanations remained. The local authority accepted that it could not establish the threshold under section 31 of the Children Act 1989.

The guardian opposed or did not support withdrawal because of concerns about the mother’s significant mental health history and the parents’ future ability to provide safe care. The issue was whether the proceedings should be withdrawn under Family Procedure Rule 29(4), having regard to the child’s welfare and the available support arrangements.

1. Application granted. The local authority was permitted to withdraw the care proceedings.
2. The local authority bore the burden of proving, on the balance of probabilities, that the child had suffered inflicted harm. The court declined to reverse that burden by requiring the parents to establish a natural cause. On the evidence, trauma could not be excluded, but it could not be proved; accordingly, the local authority could not establish the threshold under section 31 of the Children Act 1989.
3. The mother’s mental health history and suicide attempt could provide context or an explanation for possible risk, but could not prove an otherwise unproved injury. In the absence of established non-accidental injury, her mental health, considered separately and alongside the support arrangements, could not establish or maintain the threshold. The father was accepted to be a protective factor, and the local authority had statutory duties and an ongoing Child in Need Plan.
4. Under Family Procedure Rule 29(4), withdrawal was a welfare decision. Applying London Borough of Southwark v B [1993] 2 FLR 559, the question was whether continuation promoted or conflicted with the child’s welfare, including whether it offered a solid advantage. Applying Re N (Leave to Withdraw Care Proceedings) [2000] 1 FLR 134, the court recognised that the decision belonged to the court, although an opposing party should advance solid and cogent reasons.
5. S (a Child) v Nottingham City Council and Others was distinguishable. There, established non-accidental injury created a continuing welfare issue concerning protection from an unknown perpetrator. That issue did not arise where the alleged inflicted injury could not be established. Further adjournment to obtain a clearer psychological explanation was not justified, and the available support plan was properly focused on the possible risks.