Judge issues guidance on preparation for care hearings

In the decision of Re R (Care:Disclosure:Nature of Proceedings)
[2002] Mr Justice Charles gave important guidance on a number of
matters relevant to the conduct of care proceedings: preparation of
cases by a local authority and other parties, disclosure of
information held by the care authority, and the conduct of work
where sexual abuse allegations are not proved.

The local authority started care proceedings on the basis of
allegations of neglect, emotional abuse and sexual abuse. The
parents accepted that the threshold criteria were met in respect of
neglect, but always denied sexual abuse. On the 13th day of the
hearing the sexual abuse allegations were dropped because of new
information.

The judge said that when considering the preparation of
statements and disclosure, it should be taken into account that
care proceedings were not purely adversarial. Where an authority
was seeking public law orders, it should identify as soon as
possible the allegations that it was seeking to establish,
separately from the statements in which the evidence was set out.
Other parties were under a duty to give an account of their case
and provide confirmation, rather than adopting a stance of ‘you
prove it’.

Statements should be prepared by someone with a) a proper
understanding of the relevant legal principles, b) the issues of
the case and c) the procedures of the court, d) who had made a
proper examination of all the background material and relevant
files, and e) who had had a proper discussion with relevant
witnesses to ensure their statements contained a full and proper
account, f) recorded sources of hearsay and the relevant background
to and circumstances in which the matters set out took place, and
g) who had properly considered what further information or material
should be obtained.

All parties and their advisers and not merely the children’s
guardian were under duties to check the decisions made as to the
experts to be instructed and the terms of those instructions and
the input they wished to have into those instructions, consider
whether the authority had performed its duties,

consider what further information and material should be
obtained and pursue issues as to disclosure at interim hearings if
not agreed.

Local authorities and guardians should be more willing to
exhibit their notes of conversations and incidents relied on as
evidence for findings at the threshold or welfare stage of
proceedings. Anyone advancing a claim to public interest immunity
in respect of material held by a local authority should set out the
specific harm that it was alleged would be caused to the public
interest by disclosure. The judge clearly considered that there was
no general immunity from disclosure resulting from documents being
within a class of material held by a local authority. (Note there
is an additional test for withholding information if its disclosure
would cause significant harm to the child.)

Where a carer made allegations of sexual abuse or similar
allegations, a full history should be taken by a person with
relevant experience. If that had happened in the case time and
money would have been saved. As a result of that failure the local
authority suffered an order to pay the costs of other parties. Most
importantly the judge held that even though serious allegations
were made by children, unless and until the authority decided to
seek to establish the allegations to the civil standard required in
care proceedings, they had to proceed in all their dealings with
the family on the basis that the allegations had not been proved.
Similarly if the sexual abuse allegations were not proved, care
plans had to be based on the threshold criteria that were
proved.

Richard White

White and Sherwin Solicitors