Birmingham City Council v W & Ors

A fact-finding hearing should be ordered only where it has a realistic prospect of producing findings capable of affecting the child’s welfare and protection. The court must consider the quality and cogency of the evidence, particularly where serious allegations are disputed and the principal witnesses are reluctant. Compelling witnesses to revisit intimate allegations may engage their rights under Articles 6 and 8 of the European Convention on Human Rights. Those rights must be balanced against the child’s potential risks. Where the evidence could not realistically establish the allegations, compelling attendance would be disproportionate. A supervision order also requires an evidential and welfare-based foundation.

The proceedings concerned H, a young child who had lived with her maternal aunt and the aunt’s partner, P, for approximately 16 months. The local authority and the other parties supported H remaining in that placement. The London Borough of Haringey was joined after historic allegations that P had sexually abused two of his daughters were disclosed.

The allegations had been made in 2003, but the daughters later retracted them and did not wish to participate in the proceedings. Haringey sought a fact-finding hearing and, at a very late stage, a supervision order. The central issues were whether a fact-finding hearing was necessary and proportionate, and whether there was a proper basis for supervision.

1. Fact-finding hearing. The court refused to list a fact-finding hearing. The available evidence consisted principally of historic allegations, subsequent retractions, and P’s continuing denial. The three potential witnesses were reluctant to attend and might have required witness summonses. The prospect of obtaining cogent evidence sufficient to establish the allegations was remote in the extreme (paras [15]–[18]).
2. Evidence and standard of proof. Although the standard remained the balance of probabilities, the seriousness of the allegations meant that cogent evidence was required before findings could properly be made. The court was not required to compel witnesses where their evidence was unlikely to reach that threshold or provide effective protection for H (para [16]).
3. Convention rights. In deciding whether to require the witnesses to give evidence, the court had to consider their rights under Articles 6 and 8 of the European Convention on Human Rights. Their rights had to be balanced against the potential risks to H. Compulsion could only be justified if there were a realistic prospect that the evidence would enable findings against P and thereby protect H. That prospect did not exist (para [17]).
4. Public-law orders. The court found no proper legal basis on the evidence for public-law proceedings under sections 31(2) or 38 of the Children Act 1989. It also rejected Haringey’s late application for a supervision order. There was no evidence that the aunt and P would fail to co-operate with reasonable local-authority checks or support. The supervision application was dismissed (paras [12], [21]).
5. Any future private-law or public-law application concerning H was reserved to the judge for allocation (para [19]).