FINDINGS OF FACT………’Failure to protect’.

It is always good to return to basics and remind ourselves of the fundamental principle that ‘findings of fact’ must be based on evidence, and this can include inferences that can properly be drawn from the evidence’. A reminder that it is not on suspicion or simply speculation. (RE A (Fact Finding: Disputed Findings) [2011] EWCA Civ 12 [2011] 1 FLR 1817

So, as it is the Local Authority who have to prove (on the balance of probabilities) their case, it is they who will need to link the facts that they seek to rely on, to conclude that the child/children has suffered, or is at risk of suffering, significant harm. This becomes even more necessary when the link is not obvious, such as when they are seeking to prove neglect or emotional harm.

The key starting point and document in any application that the Local Authority are making for either a Care Order or a Supervision order, is its threshold document. A quote from the President (as he then was) Sir James Munby , (View from the President’s Chambers: the process of reform: the revised PLO and the local authority [2013] Family Law 680), sets this out clearly:

‘What, after all, does the court need? It needs to know what the nature of the Local Authority’s case is; what the essential factual basis of the case is; what the evidence is upon which the Local Authority relies to establish its case; what the Local Authority is asking of the court, and why,’

This document should be clear and precise, and just as important within this document are the parent’s responses. This then allows the Court to focus on what facts are in issue, what is disputed, and what evidence is required so that the Court can make a full and proper determination.

In certain cases it may also be necessary for a schedule of findings to be set out, to cover what does not go to establishing threshold. Whilst it may be usual for the Local Authority to provide such a document, we must bear in mind that this is not always the case. It may be, for example, that it is a parent who seeks findings, and therefore a schedule will need to be provided on their behalf. By way of an example, if a parent seeks a finding that an injury has been inflicted on a child, whilst they are within a placement, or by persons who have been assessed positively by the LA, and such issue may involve a basis of past allegations of Domestic Violence, this should be within the schedule with supporting evidence. If the Local Authority are not seeking such a finding then a schedule of findings will be required to be produced on behalf of the party in seeking to establish the facts before the Court. In preparing such a document one will also have to be mindful of the careful principles to be applied in relation to findings of fact.

In these sort of circumstances whether it be the Local Authority or a party who seek for findings, which cannot be within the threshold document, perhaps because of occurring after the relevant date, but in considering that they are of such significance, and will be of assistance to the Court for ‘welfare findings’ to be determined, they must be included on an evidential basis. This document will follow the same rules for a threshold document in that it should set out the facts which need to be proven together with cross-referencing the evidence.

One such finding, which crops up regularly within a case which involves non-accidental injuries to a child, is most often when the LA seek a finding against another party or parent of ‘failure to protect’.

In cases where there is a finding sought of ‘failure to protect’ there are two recent cases which may assist. They demonstrate that findings of this type must be approached with caution and care.

Re: L – W Children [2019] EWCA Civ 159 [2019] 2 FLR 278

This Court of Appeal judgment allowed the Mother to appeal to overturn a finding of ‘failure to protect’ where findings were made that the children had suffered physical abuse at the hands of her partner, who it was found had inflicted serious non-accidental bruising to one of the children.

The Court of Appeal allowed the Mother’s appeal on the basis that there had been a failure to show a causative link between the factual findings and the alleged risk to the child. There was no evidence in this case which could properly lead to a finding that this Mother had ‘failed to protect’.

King LJ made particular comment that at a Fact Finding hearing Courts must not fall into the trap of too easily assuming that if a person was living in the same household as the perpetrator that a ‘failure to protect’ is almost inevitable and highlights (at para’s 62-64) what the potential consequences for the child may be of doing this:

“Failure to protect comes in innumerable guises. It often relates to a Mother who has covered up for a partner who has physically or sexually abused her child or, one who has failed to get medical help for her child in order to protect a partner, sometimes with tragic results. It is also a finding made in case where continuing to live with a person (often in a toxic atmosphere, frequently marked with domestic violence) is having a serious and obvious deleterious effect on the children in the household. The harm, emotional rather than physical, can be equally significant and damaging to a child

Such findings where made in respect of a carer, often the mother, are of the utmost importance when if comes to assessments and future welfare considerations. A finding of failing to protect can lead a Court to conclude that the children’s best interests will not be served by remaining with, or returning to, the care of that parent, even though that Parent may have been wholly exonerated from having caused any physical injuries.

Any Court conducting a Finding of Fact Hearing should be alert to the danger of such a serious finding becoming ‘a bolt on’ to the central issue of perpetration or of falling into the trap of assuming too easily that, if a person was living in the same household as the perpetrator, such a finding is almost inevitable. As Aikens LJ observed in Re J, “nearly all parents will be imperfect in some way or another”. Many households operate under considerable stress and men go to prison for serious crimes, including crimes of violence, and are allowed to return home by their long-suffering partners upon their release. That does not mean that for that reason alone, that parent has failed to protect her children in allowing her errant partner home, unless, by reason of one of the facts connected with his offending, or some other relevant behaviour on his part, those children are put at risk of suffering significant harm.”

The second case Re: G-L-T (Children: Care Proceedings) [2019] EWCA Civ 717 [2019] 2 FLR 697 is even more significant in it’s judgment. It relates to a Father having a finding of ‘failure to protect’, following findings that the Mother was the perpetrator and that the child had suffered a range of abuse at her hands, which included deliberately fracturing his femur, poisoning him with sugar, and giving doctors a false history of severe seizures. The original Judge had made a finding of ‘failure to protect’ against the Father because he failed to inform various medical professionals that the child was no longer suffering from seizures and/or apnoea, for which he had required medication and oxygen, which had become no longer necessary

What Lady Justice King determined was that in fact, this serious finding was, in effect a ‘bolt on’

She says at para’s 72 -74 the following:

‘I repeat my exhortation for the courts and Local Authorities to approach the allegations of ‘failure to protect’ with assiduous care and to keep to the forefront of their collective minds that this is a threshold finding that may have important consequences for subsequent assessments and decisions.

Unhappily, the courts will inevitable have before them numerous cases where there has undoubtedly been a failure to protect, and there will be, as a consequence, complex welfare issues to consider. There is, however, a danger that significant welfare issues, which need to be teased out and analysed by assessment, are inappropriately elevated to findings of failure to protect capable of satisfying the section 31 criteria.

It should not be thought that the absence of a finding of failure to protect against a non-perpetrating parent creates some sort of presumption or starting point that the child/children in question can or should be returned to the care of the non-perpetrating parent. At the welfare stage, the court’s absolute focus (subject to the Convention rights of the parents) is in relation to the welfare interests of the child or children”

What this highlights is the importance of all practitioners ensuring they are alert to the fundamental principles relating to Fact Finding. How vital it is that the determination of disputed facts is clearly set out for the Court. They must always be alert to ensure that ‘ a failure to protect’ does not become simply an adjunct, tacked on as a matter of course rather than as it should be, which is clearly, an allegation which is evidentially based. The consequences of which this may have on a child/or children’s future welfare considerations, must be part of the prime considerations.