Derbyshire County Council v AA & Ors

A fact-finding hearing in public law proceedings should be held only where it is necessary and proportionate to determining the child’s welfare and the orders required to protect the child. The court must consider the nature and relevance of the allegations, the evidential position, likely welfare consequences, costs, use of public resources, impact on the parties, prospects of a fair trial and the justice of the case. The threshold requirement for public law orders does not require a fact-finding hearing where the findings would make no material difference to the welfare outcome. Extensive positive supervision, absence of relevant risk factors and the availability of an agreed safety plan may make a lengthy hearing disproportionate.

The local authority sought to continue care proceedings concerning an 18-month-old child who had healing rib fractures. The allegations were that one or both parents had caused non-accidental injuries. The parents denied causing any injury and proposed that the injuries might have occurred at birth or shortly afterwards. A nine-day fact-finding hearing was listed.

The child had remained in the parents’ care under an extensive supervision plan for approximately 16 months. The parents’ care had been consistently positive, and no relevant risk factors or red flags had emerged. The parents applied for the proceedings to be dismissed on the basis that a fact-finding hearing was neither necessary nor proportionate. The central issue was whether the alleged facts needed to be determined before deciding what public law order, if any, was required.

1. Application granted. It was neither necessary nor proportionate to hold the proposed nine-day fact-finding hearing.
2. The court applied the overriding objective in Family Procedure Rules 2010, r 1.1, requiring cases to be dealt with justly, expeditiously, fairly and proportionately, with appropriate allocation of court resources.
3. The factors identified in K v K [2022] EWCA Civ 468 for deciding whether to order a fact-finding hearing in private law proceedings were equally relevant in public law proceedings. The court also applied the public law guidance in Oxfordshire County Council v DP, RS and BS [2005] EWHC 1593 and H-D-H [2021] EWCA Civ 1192. The court had to assess necessity and proportionality flexibly, including the child’s welfare, the significance of knowing the truth, time, costs, court and professional resources, evidential outcome, relevance to future care, impact on the parties, prospects of a fair trial and the overall justice of the case.
4. The fact that threshold findings were required before public law orders could be made did not alter the central question. A fact-finding hearing should not be undertaken unless the outcome would make a material difference to the welfare outcome or the orders available.
5. On the evidence, any finding was likely to concern a single episode of inappropriate handling rather than deliberate injury or a course of abusive conduct. Sixteen months of close supervision had shown consistently positive parenting. There were no relevant risk factors or red flags of the kind identified in Re BR (Proof of Facts) [2015] EWFC 41. The evidence therefore gave no realistic basis for concluding that the child was at continuing risk in the parents’ care.
6. Even if findings were made, removal was highly unlikely and a care order at home was not justified on the evidence. The likely outcome was a decreasing supervision or safety plan. The parents were willing to agree such a plan, and the same practical plan was likely to result whether or not findings were made.
7. Although the absence of threshold findings meant that an agreed plan would not be legally binding, holding a nine-day hearing merely to determine whether a legally binding supervision plan should replace an agreed plan would be a disproportionate use of court, legal, NHS, Cafcass and social-work resources. The proceedings could end with an agreed plan recorded in the order, with fresh proceedings available if the plan was not followed.