J, A , M And X (Children)

Permission to withdraw public-law care proceedings requires an objective, child-focused assessment. The court must not treat the local authority’s view that the threshold may be difficult to prove as automatically decisive, unless inability to establish the threshold is obvious. Where the threshold is genuinely disputed, the court should evaluate the whole application, including the likely evidential outcome, necessity, cost, delay, impact on the parties, relevance to future care plans and prospects of a fair trial. Those factors must be cross-checked against the children’s welfare under the Children Act 1989. If proceedings are withdrawn without findings, an allegation is not left in a state of suspicion: it is unproved, and the family should proceed on the basis that it did not occur.

The local authority issued care proceedings under Part IV of the Children Act 1989 concerning four children after the youngest sustained serious head and retinal injuries. The case was listed for a 12-day fact-finding hearing concerning the threshold under section 31. Following further expert medical evidence, the local authority applied for permission to withdraw, accepting that it did not seek to prove a non-accidental injury. All parties and the children’s guardians supported withdrawal. The central issues were whether the court’s inquiry was confined to the apparent difficulty of proving the threshold, and whether withdrawal was consistent with the children’s welfare.

1. Permission to withdraw was granted. The application for a care order was thereby disposed of. The decision was reached under rule 29.4 of the Family Procedure Rules 2010, following an objective and child-focused review.

2. Care proceedings are essentially inquisitorial. The court therefore provides an independent check on whether a local authority should disengage from proceedings. Consent or lack of opposition by the parties is important but not decisive. Where the inability to prove the threshold is obvious, withdrawal may follow without more. This was not such a case.

3. Where the threshold remains arguable, the court must consider the whole application. The relevant factors include the children’s interests, the time and cost of investigation, the likely evidential result, necessity, relevance to future care plans, impact on the parties, prospects of a fair trial and the justice of the case. The court should then cross-check its conclusion against the welfare test in section 1(1) of the Children Act 1989, welfare being relevant but not paramount at this stage.

4. The expert evidence could not determine whether the injuries were accidental or non-accidental. A fact-finding hearing was unlikely to produce a clearer result, was unnecessary for the proposed care plans, would impose substantial delay and cost, and would adversely affect J. Taken cumulatively, the factors pointed firmly against continuing the inquiry. The proposed course was proportionate and in the children’s interests.

5. The court rejected the suggestion that an allegation could remain in an intermediate state after withdrawal. Applying In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35, the allegation of non-accidental injury scored zero because it had not been proved. The family was to proceed on the basis that the injuries were an accident and that nobody, including M, was to blame. Historic concerns were not determined because no evidence had been heard on them.

First-instance decision. No prior or appellate decision is stated in the judgment.