In care proceedings brought by the local authority pursuant to section 38 of the Children Act 1989 in respect of two children, following an incident in which their sibling had sustained a head injury, the local authority sought a finding that the cause of the injury was either intentional suffocation by one of the parents or by some undisclosed event or circumstance known to the parents but which was being withheld by them. The parents firmly disputed those allegations. The father applied to summarily dismiss the disputed findings as to the causation of the sibling’s injuries on the ground that there was no possible basis on which such findings could be made having regard to the medical evidence. The preliminary issues for determination were: (i) whether the court had power at the case management stage to summarily dismiss disputed findings in care proceedings under Part IV of the Children Act 1989, independent of its case management powers under FPR 2010; (ii) if the court did have such a power, whether it ought to be exercised in the circumstances of the case; and (iii) if the court did not have such a power, whether it ought in any event to decide and direct, pursuant to its case management powers under FPR 2010, that it was not necessary for certain of the disputed findings sought by the local authority against the parents in the proceedings to be adjudicated by the court.
On the preliminary issues—
Held, since FPR 2010 expressly prohibited the striking out of a statement of case with respect to children proceedings and contained no power to order summary judgment, it was not necessary or appropriate to look for a power that existed independent of the court's case management powers under FPR 2010 to summarily dismiss a disputed finding of fact in public law proceedings at the case management stage. The court's case management powers under FPR 2010 governed the manner in which the court determined which disputed findings required determination by the court. Pursuant to FPR r 12.25(c) the court was required, at the case management stage of public law proceedings, to identify the issues in the case as a specific application of the provisions of Part 1 and Part 4 of the FPR to public law cases, by which Parts the court was given power to determine which issues needed full investigation and hearing and which issues did not, and to exclude an issue from consideration;. Within that clear procedural framework, authority had set out the proper analytical framework for identifying at the case management stage whether a court should adjudicate on a particular disputed finding in care proceedings. On the evidence currently before the court, and applying the requisite legal principles, it would be wrong to direct that it was not necessary to determine the allegations made by the local authority regarding the causation of the head injury sustained by the sibling. Within that context, to seek to carve out a bare power of summary judgment with respect to disputed findings of fact in public law proceedings, existing outside the FPR 2010, was both unnecessary, having regard to the court's existing case management powers, and inappropriate having regard to the nature of public law proceedings and the legal principles applicable to the process of fact-finding therein. The procedural framework provided by the FPR 2010 and the principles articulated in the authorities were far better suited to deciding whether, in the context of public law proceedings, a disputed finding or set of findings ought or ought not to be determined by the court. For those reasons, and applying settled legal principles, the court would proceed to determine the allegations at the forthcoming final hearing (paras 52, 53, 54–57, 72).
Shaun Spencer (instructed by Legal Services, A Local Authority) for the local authority.
Nicholas Stonor QC and Kirsty Robinson (instructed by Butcher & Barlow llp) for the mother.
Damian Garrido QC and Mark Steward (instructed by Susan Howarth & Co) for the father.
Lisa Edmunds (instructed by BDH Solicitors Ltd) for the children, by the children’s guardian.