Family Division judge refuses council permission to withdraw care proceedings

A Family Division judge has refused an application by the London Borough of Tower Hamlets to have care proceedings for child C either dismissed or withdrawn.

The case was brought in the High Court by the council and M and F, parents of child C, but opposed by C’s guardian.

Mrs Justice Pauffley's ruling - only published on Bailii this month - in C (A Child : Application for dismissal or withdrawal of proceedings) (No. 3) [2017] EWFC 37 noted the case’s unusual context: “The local authority, supported unsurprisingly by both the mother and father of the subject child, invite me to either dismiss the proceedings or permit their withdrawal.

“The Children's Guardian resists that application making the potent point that there would be an inherent incongruity in one arm of the state (namely the Counter Terrorism Command within the Metropolitan Police SO15 and the Home Office) maintaining that the father is a terrorist with an Islamist extremist mind set whilst another (the local authority and the court) appears powerless to take any step so as to protect the welfare interests of the child.”

The council argued that it lacked evidence to establish the required threshold criteria for the case on the balance of probabilities.

Tower Hamlets said C’s interests were not served “by extending the court process in circumstances where the local authority has concluded that there is no real likelihood that it can discharge the evidential burden necessary to satisfy threshold”.

But the Children's Guardian said it was arguable that the evidence met the threshold and the court and not the parties should be the decision maker.

Pauffley J refused to either dismiss the case or permit Tower Hamlets to withdraw the proceedings.

She said: “I was interested to know why the local authority had invested effort in seeking to persuade me that summary dismissal was the appropriate route for bringing the proceedings to an end rather than withdrawal.

“[Tower Hamlets’ barrister] Mr Ashworth began by stating this was an unusual case in which the local authority was not in possession of its own evidence and had been relying upon the assessments of others in relation to the issue of risk. When pressed for the reason, Mr Ashworth frankly conceded that it was because the local authority wished the court to be at the forefront in terms of responsibility for decision making.”

The judge said summary dismissal was the wrong course as “the very language of summary dismissal is, I would observe, alien in the environment of public law cases involving children.

“The court's statutory duty is to regard the interests of children as paramount. The notion that one party's case could be summarily dismissed does not, to my mind, gain traction.”

She found it was “essential in this child's interests for the court to resolve the issues in dispute, one way or the other, by holding a fact finding exercise.

“Either there is a firm basis for finding, on the balance of probabilities, that the parents represent the risks to their child's welfare identified within Mr Ashworth's analysis or there is not. Suspicion, quite obviously, would not be enough.

“It should be for a judge, the essential decision maker, to analyse and weigh all the available material, consider the parents' responses to it and determine whether there is a likelihood that in their care the child would be exposed to the risk of harm.”

Mark Smulian