H-L (Children: Summary Dismissal of Care Proceedings)

Care proceedings should not be summarily dismissed where the evidence raises a live and unassessed risk of significant harm to children. The threshold under section 31 of the Children Act 1989 is assessed from the children’s perspective at the date proceedings are issued. It may be met where one parent may have caused earlier unexplained injuries, even if the child is later living with another parent and no further injury has occurred. Delay in issuing proceedings, however regrettable, does not itself determine whether the threshold is crossed. Threshold and welfare are separate questions. Private law proceedings are not a substitute for public law child-protection proceedings.

The local authority appealed after HHJ Wicks summarily dismissed care proceedings concerning two children. The proceedings followed unexplained bruising to the younger child, which a paediatrician considered highly likely to be non-accidental. The possible perpetrators included both parents and a non-family carer.

The local authority had delayed issuing proceedings and had placed the children with their respective fathers without legal authority. The judge treated the date of issue as the relevant date, concluded that the section 31 threshold was not then established, and dismissed the proceedings without a fact-finding hearing or the awaited paediatric overview. The central issue was whether the proceedings could properly be dismissed without investigating responsibility for the injuries and the resulting risks.

1. Appeal allowed. The judge erred in law by dismissing the proceedings without determining how the younger child’s serious bruising had been caused. At the date of issue, both children were likely to suffer significant harm arising from the injuries and the possibility that one of the parents was responsible. The threshold was therefore plainly crossed.
2. The threshold inquiry is directed to the children, not to the parents. The fact that a child is living with a parent who may have caused the injuries does not remove the risk. Unexplained injuries remain relevant and may establish a live, though unassessed, risk of future harm. The court must not prejudge responsibility before hearing the evidence.
3. Threshold and welfare are separate exercises. A child’s apparent welfare in a current placement does not answer whether the statutory threshold was met. Delay in issuing proceedings, however serious, cannot by itself determine the threshold.
4. The guidance in Re S-W (Children) is authoritative and applies to summary dismissal as well as summary granting of care proceedings. Robust case management cannot displace fairness. Summary disposal is exceptional, particularly where significant threshold issues remain, the Guardian has not prepared an analysis, and responsibility for injuries has not been investigated.
5. The order dismissing the proceedings was set aside and the proceedings revived. The case was allocated to another judge for an early case management hearing, including consideration of a split hearing and the need for a further paediatric report. An interim supervision order was made until conclusion of the proceedings.

• Court of Appeal (Civil Division): HHJ Wicks dismissed the care proceedings on 7 December 2018 at an interim procedural stage. The Court of Appeal allowed the local authority’s appeal, set aside that order, revived the proceedings, remitted them to another judge for an early case management hearing, and made an interim supervision order.