This is an interesting High Court decision delivered by Mostyn J, about the need (or not) for a fact finding hearing when the parent concedes that threshold is met.
That’s always a bit of a vexed question, so any case on the point is always interesting.
In this case, the mother was in agreement that her child, her second child, be made the subject of a Care Order and a Placement Order and agreed that threshold was crossed. The Local Authority considered that the threshold concessions she had made were ‘anodyne’
Mr Sampson QC described her admissions as “anodyne”. Ms Heaton QC described her admissions as “vacillation”, and said that she had “effectively skirted around or not addressed the central findings sought
In very broad and overly-simplistic terms, the mother was accepting a lot of described content in the threshold but not accepting that it amounted to FII or that she was a person who had or was likely to inflict FII (Fictitiously Induced Illness , or where a person manufactures medical symptoms in another so that they have to receive medical treatment)
The Local Authority sought a 5 day fact finding hearing.
Mostyn J considered the general legal principles and the specific family law principles, arising from two Court of Appeal cases – Oxfordshire County Council v DP & Ors  EWHC 1593 (Fam) and Re H-D-H and C (Children: Fact-Finding)  EWCA Civ 1192,  4 WLR 106
The fundamental difference between the two cases is that Oxfordshire did not have within its list of factors to consider the ‘different child’ issue (i.e there’s no direct advantage for Child A of resolving the factual background, but if the parent goes on to have another child, Child B, there might be advantage to having that factual dispute resolved rather than having to go back and litigate the contentious issues some time later). As Mostyn J points out, that is because those issues had been specifically litigated in earlier authorities and explictly rejected – that the case is dealing with Child A only, and should not look into the future about a Child B who does not even exist.
Wheres Re H-D H and C does specifically include the ‘different child’ issue as a reason why a fact finding might be necessary
“The evidential result may relate not only to the case before the court but also to other existing or likely future cases in which a finding one way or the other is likely to be of importance. The public interest in the identification of perpetrators of child abuse can also be considered.”
(That also includes what Mostyn J categorised as the ‘whole truth’ issue – the benefit to Child A of having the fullest possible picture of what had or had not happened to lead to them being in care or adopted)
Mostyn J considered that as the proper relevant authorities had not been cited in Re HD H and C, that he should consider himself bound by Oxfordshire, but not by Re HD H and C which was possibly an erroneous expansion of the authorities in a way that conflicted with them whilst having not grappled wiht them.
Mostyn J h says that a Judge dealing with this sort of issue should stay strictly within Oxfordshire’s guidance and will not go wrong, and that if Re HD H and C is to be considered the guidance in that needs to be reworked, which he helpfully does at para 37 (all bold is Mostyn J’s addition)
“(i) When considering the welfare of the child, the effect on the child’s welfare of an allegation being investigated or not is relevant.
But the significance to the individual child of knowing the whole truth cannot, of itself, be a main purpose of the investigation.
(ii) The likely cost to public funds can extend to the expenditure of court resources and their diversion from other cases.
(iii) The time that the investigation will take allows the court to take account of the nature of the evidence. For example, an incident that has been recorded electronically may be swifter to prove than one that relies on contested witness evidence or circumstantial argument.
(iv) The evidential result relates only to the case before the court.
Its potential utility in a future case about another child cannot, of itself, be a main purpose of the investigation.
Similarly, the public interest in the identification of perpetrators of child abuse cannot, of itself, be such a purpose.
(v) The relevance of the potential result of the investigation to the future care plans for the child should be seen in the light of the s. 31(3B) obligation on the court to consider the impact of harm on the child and the way in which his or her resulting needs are to be met.
(vi) The impact of any fact-finding process upon the other parties can also take account of the opportunity costs for the local authority, even if it is the party seeking the investigation, in terms of resources and professional time that might be devoted to other children.
(vii) The prospects of a fair trial may also encompass the advantages of a trial now over a trial at a possibly distant and unpredictable future date.
(viii) The justice of the case gives the court the opportunity to stand back and ensure that all matters relevant to the overriding objective have been taken into account. One such matter is whether the contested allegation may be investigated within criminal proceedings. Another is the extent of any gulf between the factual basis for the court’s decision with or without a fact-finding hearing. The level of seriousness of the disputed allegation may inform this assessment. As I have said, the court must ask itself whether its process will do justice to the reality of the case.
(ix) Above all, the court must be satisfied that a fact-finding hearing is necessary.
This means that the court must be satisfied that the findings, if made, would produce something of importance for the welfare decision.”
Mostyn J went on to consider the facts of the case.
The threshold document sets out in pitiless detail why it is said that VW poses a risk of serious harm to IW were he to be entrusted to her care. In summary it alleges:
A: VW has experienced abusive and neglectful parenting throughout her childhood.
B: The resulting mental and emotional instability has resulted in an itinerant unstable lifestyle, and emotional and mental health issues.
C: VW has extensive, serious and enduring psychiatric, psychological and emotional difficulties. She suffers from: (a) somatic symptom disorder, (b) factitious disorder, and (c) malingering.
D: VW has an extensive history of deliberate self-harm spanning from the age of 12.
E: Since the age of 13, VW has frequently and repeatedly been detained in secure accommodation.
F: VW hoards medication and conceals sharp implements so she can continue to deliberately self-harm, even whilst under hospital care or detention.
G: In December 2020 whilst detained under section 2 of the Mental Health Act 1983, VW floridly self-harmed.
H: From her early teenage years VW has abused alcohol and various illicit substances including cocaine, crystal meth, magic mushrooms, ecstasy, and cannabis.
I: VW has an extensive history of presenting at numerous hospitals throughout the country with wide-ranging complaints as reflected in nearly 20,000 pages of medical records.
J: VW falsifies signs and symptoms in order to mislead and manipulate medics.
K: VW is dependant on opioids.
L: On repeated occasions during her pregnancy with IW, VW deliberately and surreptitiously self-administered insulin in order to manipulate her blood sugar levels and thereby factitiously induced a state of hypoglycaemia.
M:. VW’s psychiatric and psychological difficulties and behaviours are enduring, and by virtue of them, any child placed in her care is at risk of serious physical and emotional harm.
N: VW’s first child, AW, was the subject of care proceedings in which it was found that AW’s life-threatening collapse on the 28 January 2017 was consistent with dihydrocodeine poisoning and that the dihydrocodeine present in AW’s system was due to VW, who gave dihydrocodeine to AW.
O: VW’s vulnerability and underlying issues have led her to form a series of damaging, controlling, emotionally and, on occasions, physically abusive relationships with men and to place herself at risk.
In her witness statement of 15 July 2022 VW made extensive, but far from complete, admissions in relation to the contents of the threshold document. Mr Sampson QC described her admissions as “anodyne”. Ms Heaton QC described her admissions as “vacillation”, and said that she had “effectively skirted around or not addressed the central findings sought”.
I emphatically reject these descriptions. VW’s admissions were extensive. She admitted a large number of the concrete facts alleged against her. So, for example, she accepted that she had self harmed by cutting herself; by swallowing razor blades; by overdosing even when in hospital; by tying ligatures around her neck; by threatening to jump off bridges or in front of trains; by self harming in relation to food; by abusing cocaine; and by her extraordinarily high number of hospital attendances. She accepted that from a young age she was involved in abusive relationships. She accepted the findings made by Recorder Bugg. She accepted that she cannot care for IW.
Mr Garrido QC described her admissions as accepting the underlying facts but disputing the professional label. Therefore, while she admits much of the conduct that led the experts to conclude that she suffered from FII, she disputes that diagnosis. In my opinion to have a state trial about professional labelling or nomenclature would be the height of futility.
In the Stockport case Thorpe J refers to the very considerable emotional and psychological cost to parents in accepting advice that leads to the conclusion of the case without a hearing. I can completely understand VW’s instinctive reluctance to condemn herself as being a sufferer of mordantly described psychiatric conditions. In my opinion it was brave and sufficient for her to make the admissions that she did in relation to concrete facts. Those concrete facts have been analysed by the experts and they have rendered their diagnostic opinions, which are uncontradicted
Er I think:
(1) Oxfordshire was McFarlane J in the High Ct (ie not CtApp); and as I read it he made it clear his list was not exhaustive:
 The authorities make it plain that, amongst other factors, the following are likely to be relevant and need to be borne in mind before deciding whether or not to conduct a particular fact finding exercise:
a) The interests of the child (which are relevant but not paramount)
b) The time that the investigation will take;
c) The likely cost to public funds;
d) The evidential result;
e) The necessity or otherwise of the investigation;
f) The relevance of the potential result of the investigation to the future care plans for the child;
g) The impact of any fact finding process upon the other parties;
h) The prospects of a fair trial on the issue;
i) The justice of the case.
I am well familiar with the concept of ‘necessity’, arising as it does from ECHR Art 8 and, indeed, from the pre Human Rights Act 1998 case law to which I have been referred. It is rightly at the core of Mr Tolson’s submissions in this case and, without overtly labouring the issue by including substantial descriptive text in this judgment, it is at the forefront of my consideration of the point. Amongst the pertinent questions are: Is there a pressing need for such a hearing? Is the proposed fact finding hearing solely, as Mr Tolson puts it, ‘to seek findings against the father on criminal matters for their own sake’? Is the process, which will be costly and time consuming, with potentially serious consequences for the father if it goes against him, proportionate to any identified need?
(2) What was in the CA was Re B (Agreed Findings of Fact)  2 FLR 968, CA (my first ever outing in the CtApp with 24 hrs to deal with it).
(3) What Mostyn J may miss is that the cases he cites are ‘authorities’ in the sense of being of higher courts; but are they precedents and therefore binding on him? This was a fact specific question based on a finding in Re B that courts can case manage hearings to accept facts sufficient for a threshold decision. That is the matter of law. The rest is fact and discretion- based (ie case management, surely), guided by the two cases you cite. If I am right, I am not sure Mostyn J got the case management point; though the outcome – which did not need such a weighty judgement – was right (IMHO).
As the editing function on WordPress seems to be playing up today, the case is Barnsley MBC v VW 2022 https://www.bailii.org/ew/cases/EWFC/HCJ/2022/83.html
The fact that Oxfordshire was High Court not Court of Appeal just makes it even more likely that when the Court of Appeal get the opportunity to look at this again, they will say that the Court of Appeal decision expanding the criteria to include different child and value of the truth as other factors to take into account is correct and this decision (on the law) will be found wanting.
I do still think that even applying the Court of Appeal expanded factors and giving those two things weight against the overriding objective and proportionality (particularly at a time of particularly scarce court resources and delays) Mostyn J reached the right decision not to hold a 5 day fact finding hearing given that the issue of adoption was already conceded.
I still think what may prove a more interesting decision whether or not to hold a full-blown hearing over many days is a matter of case management; and – if so (a) time for a appeal is very short (7 days?) and (b) the ambit for appeal very narrow. I fear Mostyn J did not pick up this point; though perhaps it wasn’t drawn to his attention. And I agree – having myself appeared for the appellant in Re B (!998) Mostyn J reached the right decision. Even parents – especially parents? – must be entitled to agree facts in their child’s case…
Yes, I think this falls into that bracket of cases where the right decision was reached though perhaps for the wrong reason (the reverse of Jacob Rees Mogg being wrong but for the right reason)
To my mind, there was sufficient concession to make a fact finding not proportionate. And yes it must be a case management decision which has higher bar to successfully appeal.
I doubt the CofA could deal with this pre September in any event, making an appeal sterile, but I do think that this will be patched next time a suitable case comes along.
Mostyn J asks the question “Cui bono?” but then answers it “Nemo” – nominative – not “Nemini” – predicative dative. Where is it going to end?
Sent from my iPad
Each case should be investigated and litigated on its own merit.
This is not The Minority Report – yet!