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Even the state is subject to the due process of law

I don’t normally write about child care cases, as I have not done any child care work for the best part of twenty years and my knowledge of the subject is therefore somewhat lacking. However, I thought I would make an exception in this instance (albeit only skimming the surface of a lengthy judgment), as cases in which the local authority fail in their application for a care order are relatively rarely mentioned in the media, which is generally more interested in describing how the family justice system is used by the state as a tool to remove children from the care of their parents.

HB (A Child) (care proceedings), however, demonstrates what all lawyers know, but what is often conveniently not mentioned by the media: that even the state is subject to the due process of law.

The facts in HB were particularly sad. The case concerned a little girl ‘H’, who was born on 7 July 2014. Her parents are very young: her father is now aged twenty and her mother just eighteen. The local authority issued care proceedings immediately after H was born, because in 2013 the mother and father tragically lost their first baby, ‘R’, in circumstances which, in the local authority’s submission, gave rise for concern. In particular, it was alleged by the local authority that R died as a result of physical force inflicted by the father.

The case was transferred to the High Court and listed before Mr Justice Baker for a fact-finding hearing. The hearing lasted for nine days, during the course of which the court heard from the parents, medical experts and various other professionals. Obviously, it was up to the local authority to prove their case, to the civil standard of the balance of probabilities.

However, after considering all of the evidence, including what he called “the wider canvass” beyond the events surrounding R’s death, Mr Justice Baker concluded that the local authority had not proved that R was killed by his father in the manner alleged. Referring to the injuries that R had suffered, he said:

“I acknowledge the medical evidence of the marks and the torn frenulum, taken individually and together, is capable of being interpreted as evidence of physical abuse, but the courts have repeatedly stressed that judges look at all the evidence and only the judge is able to do that … In this case, looking at all the evidence, considering the medical evidence in the context of the parents’ own evidence, which I accept, the local authority has not satisfied me on a balance of probabilities that the mark on the ear was a bruise, or that it was inflicted non-accidentally, or that the torn frenulum was inflicted by the parents, or that the bruise on the forehead was a result of an assault by either parent. In the circumstances the allegations against the mother of failing to protect fall away.”

Accordingly, the local authority had failed to prove that H would suffer significant harm in her parents’ care. The local authority’s application for a care order was therefore dismissed.

HB is, of course, by no means unique. However, for the sake of balance I think that such cases should be given greater publicity, to show that, contrary to what some would have us believe, the courts ensure that the state cannot remove children from their parents without due process of law.

The full judgment can be read here.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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