M (Children) v Wiltshire Council & Ors

Permission to withdraw care proceedings requires an objective and dispassionate assessment of whether investigation is necessary, relevant to future care planning, proportionate, fair and timely, having regard to public cost. Seriousness of alleged harm is not determinative, and evidential complexity alone does not justify withdrawal where oral scrutiny may establish material facts. A parent’s denial that abuse occurred, as distinct from denial of attribution, is a significant welfare factor requiring reasoned consideration. The court must also assess expert evidence accurately. An unsupported assumption that infection could have remained dormant for years materially distorts the possible perpetrator pool and the utility of a fact-finding hearing. The appeal was allowed because withdrawal was premature.

Care proceedings were issued after R, a pre-pubertal child, was diagnosed with gonorrhoeal eye infection and a positive vulvovaginal swab. Expert evidence supported sexual transmission but was uncertain about the timing and original site of infection. The local authority applied to withdraw the proceedings, stating that it was unlikely to satisfy the attributability condition under the Children Act 1989, s 31. The parents supported withdrawal, while the Children’s Guardian sought a fact-finding hearing.

HHJ Hess granted permission to withdraw on 23 October 2020. The Guardian appealed, arguing that the judge had failed to distinguish harm from attribution, failed to address the parents’ denial that abuse had occurred, and relied on an erroneous assessment of the possible incubation period. The central issue was whether withdrawal was premature.

The appeal was allowed. The application to withdraw the care proceedings had been made prematurely.

1. The governing principles for withdrawal were those recently reviewed and restated by Baker LJ in RE GC (A child) Withdrawal of care proceedings [2020] 4 WLR 92. They require consideration of the necessity of investigation, the relevance of its potential result to future care planning, the obligation to deal with cases justly, proportionality, the prospects of a fair trial and its impact on other parties, and the time and cost of investigation. The court also endorsed an objective and dispassionate approach, as stated in A Local Authority v X, Y and Z (permission to Withdraw) [2017] EWHC 3741 (Fam).
2. Although appellate courts should support robust first-instance case-management decisions, intervention is justified where the judge erred in principle, failed to consider relevant matters, considered irrelevant matters, or reached a decision outside the generous ambit of discretion. That approach was explained in In the Matter of TG (A child) [2013] EWCA Civ 5 and Piglowska v Piglowski [1999] 1 WLR 1360.
3. The judgment below did not address the fact that both parents denied that R had been sexually abused at all, rather than merely denying responsibility. That was a significant factor because it affected future parenting and protection. In the circumstances, the court required a clear determination of whether R had been sexually abused, on the balance of probabilities.
4. The judge had relied on an unsupported assumption that the infection could have remained dormant for up to two years. The expert evidence distinguished adult pre-menopausal women from pre-pubertal children and supported a considerably shorter period in the latter. That error undermined the assessment of the possible perpetrator pool and the utility of further investigation.
5. The expert’s caveats were properly given in accordance with his duty to identify matters affecting his opinion. They did not undermine his credibility, expertise or reliability. His central opinion that gonorrhoea in a pre-pubertal child was strongly indicative of sexual abuse remained firm. Oral cross-examination was required to test the evidence, and the paper-based assessment was insufficient. The possible findings could affect future care planning, including whether either parent might be included in a pool of perpetrators.

1. Court of Appeal (Civil Division): The Children’s Guardian’s appeal was allowed. The order permitting withdrawal of the care proceedings was held to have been made prematurely.
2. Family Court at Swindon: HHJ Hess made an order on 23 October 2020 granting the local authority permission to withdraw the care proceedings concerning both children.