G-L-T (Children)

A finding that a parent failed to protect a child is itself a threshold finding under the Children Act 1989. It requires careful, evidence-based analysis of the parent’s knowledge, conduct and opportunity to act. It must not be added as a bolt-on to findings against the perpetrating parent or inferred merely from living in the same household. An appellate court may reverse a factual finding where it lacks evidential support, rests on a misunderstanding of the evidence, or is one no reasonable judge could make. Removing the finding does not create a presumption that the child should return to the non-perpetrating parent: threshold and welfare questions remain distinct.

These care proceedings concerned four children, including J, a premature child who had experienced genuine medical difficulties alongside fabricated or inflicted illness. HHJ Farquhar, sitting as a section 9 High Court Judge, made findings against the mother and found that the father had failed to tell health professionals in October, November and December 2017 that J was no longer suffering from seizures or apnoea. The judge held that this failure contributed to unnecessary medication and oxygen and amounted to parental neglect.

The father appealed against Finding 7. The central issues were whether the judge had accurately understood the father’s evidence, whether he could reasonably have known that the treatment was unnecessary, and whether the evidence established a culpable omission at the relevant medical contacts.

Disposition and evidential error

1. The three-judge court unanimously allowed the appeal and set aside Finding 7. The ground that the finding had not appeared in the Scott Schedule failed: the underlying issues were firmly before the court and, all other things being equal, the judge was entitled to make the less serious finding.
2. The Court of Appeal followed the established approach in Re B (A Child) (Care Proceedings: Appeal) [2013] UKSC 33: reversal of a factual finding is rare, but may occur where the finding lacks evidential support, is based on a misunderstanding of the evidence, or is one no reasonable judge could have made. This was such a case.
3. The judge had recorded the father’s evidence as being that he had not seen any seizures after the family moved. He later treated it as evidence that J had suffered no seizures. That was a fundamental distinction which infected the analysis. The evidence also did not establish that the father knew oxygen was unnecessary. Oxygen had been prescribed for apnoea, desaturation and chronic lung disease, and the father reasonably believed that seizure medication had reduced the seizures.
4. The October and November home visits did not support the finding. The father’s presence at the first was unclear, and he was absent at the second. At the December clinic appointment, the evidence showed only that everyone could have heard the conversation, not that the father actually heard or absorbed it. He was caring for two unsettled children, had not participated in the discussion, and had not been asked in cross-examination whether he heard the mother give a false account. The finding of culpable omission was therefore unsupported.
5. A failure-to-protect finding is an independent threshold finding under the Children Act 1989, separate from any finding against the perpetrating parent. The court endorsed the caution in L-W (Children) [2019] EWCA Civ 159: such allegations require assiduous care and must not become a bolt-on to the central issue of perpetration or be assumed from co-residence. Welfare assessment remains distinct, and absence of a failure-to-protect finding creates no presumption that children should return to the non-perpetrating parent.

• Court of Appeal (Civil Division) — [2019] EWCA Civ 717: appeal allowed and Finding 7 set aside.
• Sussex Family Centre at Brighton — HHJ Farquhar, sitting as a section 9 High Court Judge, conducted a fact-finding hearing which concluded on 5 November 2018, made findings against both parents, and held that the threshold under the Children Act 1989 was satisfied.