LONDON MATRIMONIAL SOLICITORS - PUBLIC CHILDREN

Whether judge erred in dismissing allegations of sexual abuse

Re F (a child) (care proceedings) [2007] EWCA Civ 810, [2007] All ER (D) 503 (Jul)
BFLS 3A[3063.1]; CHM 1[917]; Rayden 1(2) 40.1

The mother and father had a daughter, F, aged five. The father was a Schedule 1 offender, and in 1998, he pleaded guilty to two counts of indecent assault on a nine-year-old girl, for which he received a sentence of 18 months' imprisonment. The policy of the local authority had been to maintain F's placement with her parents, whilst offering them a package of support. An assessment of the father was carried out by M, a risk assessment and treatment specialist, which put the father in the medium risk bracket in relation to F. M's recommendation was that it would only be safe for the father to remain in the family unit if the parents were given ongoing support. The local authority proceeded on that basis although, at times, F's name was on the child protection register under the category of likely sexual abuse and neglect. During a meeting with a student care proceedings seeking an interim care order.

A conference was held where it emerged that the father had not been abiding by an agreement to leave the personal care of F solely to the mother. The mother and father asked for F to be accommodated whilst they made changes to ensure her safety. Directions were given, namely that the parties were to agree to F's continued accommodation under the Children Act 1989, s 20, and that contact for each of the parents would be supervised. A split hearing was ordered and a fact-finding hearing went ahead. The judge referred to a threshold criteria document and made reference to M's report although he decided not to hear evidence from him. In the event, the judge dismissed the allegations of sexual abuse as not reaching the requisite standard of proof, and stated that the parents had no case to answer.

The local authority appealed against that decision. It submitted, inter alia, that the judge had plainly been wrong to conclude that the parents did not have to give evidence in response to its threshold criteria under s 31 of the 1989 Act; that the judge had been wrong to conclude that the alleged failure to protect by the parents and the degree of risk presented by the father had been insufficient to justify the making of an order under the 1989 Act; and that the judge had been wrong to exclude in evidence the risk assessments undertaken in respect of the father.

The local authority's appeal was allowed. The Court of Appeal held that in the instant case, although the judge's decision to reject the allegations of sexual abuse by the father had been open to him, the outcome achieved by him had been wrong. There was force in the local authority's submission that the concentration on the allegations of sexual abuse had led the judge into an inappropriate dismissal of the real anxiety in the instant case, namely the risk which the father posed to F as a Schedule 1 offender.


Comment: The Court of Appeal took the view that the judge's concentration on the s 31 threshold criteria had closed his mind to the real risks posed to F; and his focus on the fact of sexual abuse had led him inappropriately to discount the expert evidence of M whose opinions on the risk posed by the father could not be sidelined. Moreover, it was unfortunate that the judge had introduced the concept of no case to answer as it had little or no place in care proceedings under the 1989 Act. The judge's order was plainly wrong and had to be set aside, and the proceedings re-instated.

In Re K (care: threshold criteria) [2005] EWCA Civ 1226 at [40]-[41] the point was made that the 'court needs to consider the whole family dynamic' and avoid the dangers of compartmentalisation.