Cumbria County Council v R (Special Guardianship Order or Interim Care Order)

Findings made at an earlier fact-finding hearing in continuing care proceedings are not immutable. Fresh evidence should be considered alongside the earlier evidence, without routinely reopening the entire fact-finding exercise. The evidential burden lies on the party seeking to displace the finding, but the legal burden remains on the local authority.

Credibility should be assessed principally by reference to consistency, logic, plausibility, detail and compatibility with other evidence, rather than demeanour or emotional presentation. Where a proposed special guardianship placement is untested and requires intensive support, an interim care order may be preferable to an immediate special guardianship order. A short-term final care order is not a legally appropriate testing mechanism.

Cumbria County Council brought care proceedings concerning R, who had sustained serious non-accidental head injuries. A previous fact-finding hearing had resulted in findings that both parents were present when R was injured and knew how the injuries were caused.

The father later gave a new account, alleging that R had fallen accidentally while in his care and that the mother had been absent. The mother sought reconsideration of the earlier findings and proposed rehabilitation to her care. The alternative placement proposed by all parties was with the paternal grandparents, but there was disagreement about whether that placement should begin under a special guardianship order, a supervision order or a care order.

The central issues were whether the later account justified revisiting the findings and, if not, which legal framework best protected R during transition to an untested kinship placement.

1. Earlier findings. The court rejected the father’s late account as fabricated. Its internal inconsistencies, implausibility, unexplained changes, and conflict with earlier accounts outweighed the apparent genuineness of the parents’ emotional reactions. The medical evidence also provided further support for leaving the earlier findings unchanged.
2. Reconsideration of findings. The court adopted the approach in Re B and H (Children) [2003] EWCA Civ 1818, Re M and MC (Care: Issues of Fact: Drawing of Orders) [2002] EWCA Civ 499 and Re Z (Children)(Care Proceedings: Review of Findings) [2014] EWFC 9. The proper course was neither a complete reopening nor refusal to consider the new material. The earlier findings formed the foundation, while the fresh evidence was tested and assessed with the earlier evidence. The evidential burden lay on those seeking to displace the findings, but the legal burden remained on the local authority.
3. Credibility. Applying Re M (Children) [2013] EWCA Civ 1147 and Sri Lanka v the Secretary of State for the Home Department [2018] EWCA Civ 1391, the court treated demeanour and distress with caution. The reliable approach was to examine the content of the evidence, its internal consistency, logicality, plausibility, detail, consistency with earlier accounts and compatibility with known or probable facts. The court also took account of the cautions concerning memory and repeated accounts in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) and Lancashire County Council v M and F [2014] EWHC 3 (Fam).
4. Welfare outcome. Even if the findings had been amended, the evidence indicated that the mother could not safely care for R while remaining in a close and dependent relationship with the father. The paternal grandparents were capable of meeting R’s needs, but the placement was untested and required significant guidance, training, supervision and support.
5. Choice of order. Applying Re P-S (Children)(Care Proceedings: Special Guardianship Orders) [2019] 1 FLR 523, the court held that an immediate special guardianship order was premature. A short-term final care order was flawed because it could not be time-limited or discharged automatically and could place an unfair burden on the proposed special guardians. A further interim care order preserved R’s looked-after status and the associated support while the placement was tested.
6. The findings were left unchanged. R was to be placed with the paternal grandparents under a further interim care order. Directions were to be drawn for an amended interim care plan addressing guidance, support and training, with a further hearing to consider a special guardianship order.