Lancashire County Council v TP & Ors(Permission to Withdraw Care Proceedings)

On 30 July 2018 the applicant, Lancashire County Council issued care proceedings in respect of 5 children:

The first respondent is TP, the mother of E and R; the second respondent is CP, the father of E and R; the third respondent is TM, the mother of H and C; the fourth respondent is SC, the father of C and H; the fifth the respondent is KH, the mother of K; the sixth respondent is JR, the father of K.

All the children are parties to the proceedings and are represented via their Guardian, Dionne Kennedy. E is now 17 years of age and thus even were the local authority continuing to seek a care order no such order could be made.

However, as a result of developments over the intervening 9 months, the local authority no longer seek orders in respect of any of the children but quite the contrary they seek the permission of the court pursuant to FPR 29.4(1)(b) to withdraw their application.

The threshold criteria that were drafted in July 2018 asserted that the children were suffering and were likely to suffer significant harm, such harm being attributable to the care given to them not being what is expected of a reasonable parent. The nature of the harm/likelihood of harm alleged was neglect and impairment of the child’s physical, intellectual, emotional, social, and behavioural development. The central limbs were contained within 6 paragraphs each supported by ‘facts relied upon’ in subparagraphs.

The application first came before the court on 1 August 2018 when interim care orders were made on the basis that there were reasonable grounds for believing that the threshold was met. Although the local authority had been seeking immediate removal of the children, there was insufficient time to deal with that aspect on the first and the matter was put over until 3 August. By that time the Guardian and local authority had visited the children and agreement was reached that the children should remain placed at home with TP and CP. As far as I can tell, the children who were placed with TP and CP as fostered children were placed elsewhere.

Subsequently HHJ Singleton QC granted permission for expert reports to be obtained from:

These reports were completed in January and February 2019 and as a result of their contents the local authority re-evaluated the case and concluded that they should no longer seek care or supervision orders in respect of any of the children. I shall turn to

In preparation for this hearing the local authority, TP, CP, and the Guardian filed comprehensive skeleton arguments on the issue. Counsel for the parents of C, H, and K filed shorter documents dealing briefly with the permission issue and with the residual issues in respect of each of their clients. I was also provided with a Case Summary, a Schedule of Issues which was prepared following the advocates meeting and detailed chronologies prepared on behalf of the local authority and CP. I have also read large sections of the court bundle in particular the contents of the Core bundle. Even the more limited court bundle that I was provided with ran to 6 lever arch files and I understand the unabbreviated edition runs to many more. I would like to express my thanks to all of the lawyers for the way in which the case has been presented. Given the huge volume of evidence and the extensive arguments which have been deployed this judgment cannot aspire to being anything like a full evaluation of the evidence and the arguments but is confined to what I consider to be necessary and proportionate to deal with the issue that remains in dispute. Given the nature of the case and the arguments deployed I have inevitably had to delve in some detail into the documentary evidence but I do not intend to burden this judgment or the parties with anything like a full summary of all that I have read or considered.

As a result of the developments since July 2018, but in particular the contents of the experts’ reports, the local authority accept that the threshold as originally formulated cannot be sustained and should not be pursued. Beyond this, the local authority accept

However, because of the well-established approach to applications for permission to withdraw an application for a care order, the local authority are obliged to identify whether it is a case where it is obvious that threshold cannot be established or whether it is a case where there is a possibility that threshold might be met. In this case the local authority, through Ms Taylor QC and Ms Begum, have identified at paragraph 29 a) to d) of their Skeleton Argument four particular aspects of the threshold which they submit continue to carry a possibility of satisfying the threshold. I observe that the local authority have not sought positively to argue that the threshold would be met in those respects but rather Ms Taylor QC confirms that as a matter of intellectual honesty and evaluation of the evidence from the local authority’s perspective they submit that those 4 items carry with them a possibility that the facts might be established and that if established they might demonstrate significant harm or likelihood of significant harm attributable to care being given not being what it would reasonable to expect a parent to give. Thus the court must undertake the nine-point analysis identified by McFarlane J (as he then was) to determine whether permission should be granted to withdraw.

The 4 points that the local authority identify as carrying with them a possibility of establishing threshold are as follows.

A comparison between the threshold as drafted in July 2018 at paragraphs 29 (a) –(d) of the local authority’s skeleton argument reveals that:

Thus the 4 remaining areas where it is submitted it is possible that threshold might be established constitute a vestigial part of the original threshold. It is a necessary corollary of the position that the local authority have adopted that insofar as they no longer identify a part of the original threshold as having the possibility of being established that they accept that it is obvious that threshold cannot be established. Insofar as that position is based on an acceptance of the reliability of evidence that has been generated since July 2018 that has some relevance to the vestigial four elements insofar as that evidence bears upon those facts.

The evidence which could be deployed in support of the 4 possible areas derives in large measure from the expert reports although the source material may be found in medical records, and some additional support may be found in social work statements or other records.

On the basis that there is a possibility that threshold could be established Ms Taylor QC and Ms Begum provided the following analysis of the 9 factors which inform the exercise of the discretionary exercise as to whether or not to proceed to fact-finding or to permit withdrawal.

On behalf of TP it is not accepted that the findings set out in paragraph 29 of the local authority’s skeleton argument could be made out and thus the 9 point evaluation would not need to be applied. TP has since July 2018 taken issue with the local authority’s evaluation of the case. In her statement, dated 7 September 2018, she addressed the threshold as then formulated. It is a detailed but measured response. Some criticism is accepted in particular in relation to the referral of FP to CAMHS and the remark made regarding H to the school. However the overwhelming thrust of the response is to give explanations which rebut and explain the rebuttal of the threshold. In her more recent statement of 19 March 2019 she rebuts the 4 remaining possible threshold issues.

In their skeleton argument Ms Cook QC and Mr Ameen provide a detailed rebuttal of the 4 possibilities in order to show that when properly analysed there is no possibility that the threshold could be met and that rather they fall into the category where it is obvious that threshold would not be crossed. In relation to paragraph 29(a) and (b), they rely largely on the report of Dr Pasterski and point out that the limited observations by Dr Ward in relation to these issues which might be said to support threshold are couched in very qualified terms. In relation to 29(c) they point out that there is much in Dr Ward’s evidence which confirms that TP and CP have not inappropriately pursued mental health diagnoses and they note that in so far as Dr Ward is critical there is no evidence that any of the children have suffered or are likely to suffer any harm. Moreover, they point to the wider canvas which supports the conclusion that over many years, TP has acted appropriately as a parent or Special Guardian and the evidence is that the children have thrived in her care. In relation to paragraph 29(d) they note that notwithstanding Dr Ward’s opinion, the level of accidents C suffered simply do not justify any conclusion that they demonstrated a lack of reasonable parenting. All are demonstrably accidents of the sort encountered by many children and even in respect of the swimming pool incident the evidence compellingly demonstrates it was of the ‘there but for the grace of God go I’ sort. Given that the last happened in 2017 and the local authority continued to place children with TP and CP thereafter it is difficult for the local authority contended that these accidents demonstrate either significant harm or a lack of reasonable parenting.

CP adopts a similar approach, arguing that it is obvious that the local authority could not discharge the burden of proof in relation to threshold. He also provided a detailed rebuttal of the July 2018 threshold in his statement of 27 September 2018. In his most recent statement it does not address the 4 remaining threshold points but in their skeleton argument in support Ms Cheetham QC and Mr Gilmore provide a detailed rebuttal. It is noted that ‘a finding that the local authority could have met threshold in this case’ would have significant consequences for the future of TP and CP’s family. In relation to the 4 bases upon which the local authority contended threshold might be met, in general terms they make common cause with the position adopted on behalf of TP.

Ms Cheetham QC and Mr Gilmore make criticisms of the local authority in respect of an asserted lack of professional objectivity in relation to gender issues and a failure to follow proper FII process.

On behalf of TM, Mr Hunt does not take any particular position in relation to the application for leave to withdraw the proceedings. TM fully supports the CP and TP in their continuing to look after the H and C and she does not seek any order within these proceedings. She will continue to spend time with the children by arrangement with TP and CP and is willing to contribute to any life story work that is undertaken.

SC, the father of C and H, has not provided instructions to his solicitors for some time or engaged with the local authority position.

KH does not oppose the local authority’s application to withdraw. She does not (wisely) descend into the detailed arguments on which category of case this is. She has issued an application for an order defining the time she is to spend with K. She seeks an order providing that she may have unsupervised time with K up to once per month. She has recently given birth to another child and is currently living within a residential unit under the auspices of an interim care order. In addition to that order she seeks clarification of various matters in relation to the future care planning for K whether under a child in need plan or special guardianship order support plan.

JR has not given instructions to his team since the end of February. At that time he did not oppose the local authority’s application for permission to withdraw the proceedings or K’s continued placement with TP and CP.

The Guardian supports the local authority’s application for leave to withdraw the proceedings. She had provided a detailed report which was supported by a skeleton drafted by Ms Perplus and Mr Blackburn. In her analysis the Guardian makes the following points:

On the basis of the alleged facts now relied upon by the local authority the Guardian is circumspect as to whether or not those facts if proven would be sufficient to cross the threshold and thus whether the court needs to apply the nine-point evaluation mandated by ACC-v-P. Given the local authority’s acceptance of the expert evidence, in particular that of Dr Pasterski she submits that it is inconsistent to then pursue paragraphs 29(a) and (b). In respect of the matters identified at paragraphs (c) and (d) she notes that whilst the facts might be capable of proof whether they would be sufficient to demonstrate the children had suffered or were likely to suffer significant harm is doubtful; particularly in respect of (d) when the last incident was so long ago.

The Guardian submits that the court should adopt the following method:

The Guardian whilst supporting the withdrawal of the proceedings identifies the need for further clarification in relation to the children in need or special guardianship support plan to ensure that life story work and contact is adequately addressed in respect H, C, and K.

The background to the proceedings and the history of TP and CP’s family including H, C and K is very extensive and I propose only to sketch it out for the purposes of this judgment. Immense detail is contained within the chronology prepared by the local authority and by CP’s team.

TP was born in 1967 and CP in 1969. In 1997 their first child was born with their second in September 1999. They are now adults. E was born in 2002. In May 2003 TP and CP were approved as foster carers and in June 2004 CP gave up work as a social worker to become a full-time carer. Over the years they fostered many children. One of the children EP had gender identity issues. She left their care was 2007 having been with CP and TP for some 3 ½ years. In February 2006 CP and TP third child N was born. Subsequently N and a variety of developmental and health concerns. It is evident from the various chronologies that a number of the children CP and TP fostered also had developmental or health issues.

On 28 November 2012 CP and TP were recommended as local authority foster carers by the fostering panel. That recommendation was approved by the agency decision maker on 7 December 2012 and thereafter CP and TP transferred from being agency foster carers to local authority foster carers.

On 21 December 2012 H and C were placed with CP and TP. H had sustained very serious injuries including skull fractures and associated subdural bleeding arising from shaking and impact mechanisms. He had also sustained spinal fractures, rip fractures and intra retinal haemorrhages. C had sustained a fracture to his upper left humerus caused by forceful squeezing or gripping and rotation of the bone. The court was unable to determine whether the injuries were caused by the mother or the father and so as they were the only 2 potential perpetrators both remained in the pool. In April 2013 N, by then I think known as R was referred to the Tavistock gender identity clinic, and in that same month date was changed by deed poll to R.

In August 2013 an anonymous referral received by the local authority from a member of the extended family under the heading ‘preoccupation with and encouragement of gender dysphoria in 3 children’. In September 2013 R told a member of the school staff that she did not think life was worth living but no further local authority involvement followed and it seems that R was under the care of the local CAMHS was also having some ongoing contact with the Tavistock and with the Mermaid Group (a support group recommended by the Tavistock). The chronology discloses

On 28 January 2014 H was taken to A&E by ambulance having sustained an injury to his forehead in a fall. There were concerns that he was falling a lot and that a physio assessment he presented with some instability and was put on a waiting list in March 2014. On 7 April 2014 C fell at home and sustained a head injury and was taken to A&E.

12 November 2013 C and H were made the subject of special guardianship orders in favour of CP and TP. In September 2014, at a Children in Need review for H and C, TP said she had been told by the physio that H may be showing signs of cerebral palsy.

26 October 2014, C was seen again in A&E having suffered a head injury falling from a high chair.

In December 2014 at a two-year developmental, check no concerns were identified in respect of H and C other than ongoing physio for H. R continued to present with a variety of issues including a possible eating disorder and inattention and hyperactivity.

On 13 June 2015 C was brought to A&E having fallen into a swimming pool. There is some dispute over the circumstances of this incident. Records suggest that he was found face down in the pool and was thought to be dead [H18/29] whilst CP and TP say that they were at the pool that C jumped in and within seconds was pulled out of the pool by CP.

On 25 November 2015 K was placed with CP and TP. She was 8 months old at the time. TP expressed concerns about her emotional attachment.

On 7 January 2016 the school made a referral to children services relating to concerns of fabricated and induced illness in respect of 4 children in the care of CP and TP. This in particular appears to have been prompted by a conversation that took place between TP and a teacher in relation to H who was being dressed in girl’s clothes. TP was reported to have said ‘here’s another one for the Tavistock’ and the strategy meeting was then scheduled by the local authority.

On 21 February 2016 C presented to A&E with a laceration in his mouth. A referral was made by the hospital to children services and a section 47 investigation ensued.

In March 2016 concerns began to be expressed about E’s health, he suffering from headaches and various other ailments and in May 2016 he was diagnosed with possible chronic fatigue syndrome.

On 23 August 2016 CP and TP were reapproved as local authority foster carers. Throughout this period R continued to present with various issues related to eating, her gender identity and other concerns.

On 8 March 2017 C presented at A&E with a face and lip injury having fallen over on his way to nursery and H was still displaying instability walking and was referred to physio.

In June 2017 a meeting at the school in advance of H attending discussed in which gender H would present. The school requested that H attend in a boy’s uniform. However in September, H came in a girl’s uniform. In August 2017 K was made the subject of a special guardianship order.

On 19 September 2017 two children were placed with CP and TP as foster placements. They have been identified as AP (born September 2008) and FP (born April 2011). Early assessments and statutory visits noted a significant improvement in the functioning of those 2 children. A disagreement arose over the use of a phone app approved by the local authority for use by children in care. FP had a diagnosis of XYY syndrome; a rare chromosomal disorder associated with a variety of developmental or other issues in particular for FP burning needs, speech problems, attention difficulties and emotional and behavioural issues.

In January 2018 H had a developmental review and no concerns were expressed. C had a health screening which again disclosed no health concerns. In January 2018 the special educational needs coordinator raised concerns about K’s attention span, her lack of fear and her falling.

On 28 February 2018 it was noted that H was presenting fully as a girl. On 14 May 2018 FP was referred to CAMHS by CP and TP without reference to social services. When they saw the referral they considered it was not a true reflection of FP’s presentation or the level of need. The suggestion from the social work statement was that there was a significant degree of exaggeration in the report that been made by TP to CAMHS. This appears to have triggered an investigation into the family situation by Lisa North.

An initial strategy meeting took place on 13 June 2018 with a follow-up taking place on 3 July 2018. Lisa North prepared a lengthy report for that meeting; this identified a ‘summary of current causes for concern’ as follows:

A further strategy meeting was held on 3 July 2018. A report was commissioned from Dr Gupta a consultant paediatrician and the designated doctor for safeguarding for

In the first social work statement of Ms Smalley, 6 concerns were identified relating to CP and TP. They are in essence a cut and paste of the concerns identified by Lisa North in her report to the strategy meeting. It is fair to say that the central concern is best is summarised at C32 where it says ‘it is suggested that there is an identifiable pattern of CP and TP seeking medical diagnoses and intervention for the children in their care, above and beyond the issues that are evident in observations by professionals…The available information suggests that CP and TP are highly manipulative people…There are significant concerns that parents/carers have manipulated children’s gender and diagnosis of additional needs, which is considered the highest division of emotional abuse.’ Clearly the gender identity issues were a central component of the concerns.

The original ‘Proposed threshold criteria’ were drafted on 26 July 2018 and as outlined earlier in this judgment they expand upon the concerns identified above.

As I have referred to earlier the case then came before Her Honour Judge Singleton QC and she case managed it making provision for the filing of expert reports addressing the central issue of FII. Although the local authority had initially sought immediate removal of the children, or some of them, the children remained at home.

Although the evidence which has been collated since July 2018 is not limited solely to expert evidence the decision by the local authority not to pursue the application is plainly based largely on the contents of the expert reports that have been received including that of the independent social worker. The reports are lengthy and detailed and I shall only seek to outline their principal conclusions insofar as they bear upon the issue that I’m called to determine. Although the Guardian rightly notes in her skeleton argument that care must be taken not to view the remaining 4 threshold issues through the lens of the original July 2018 allegations equally one has to look at the totality of those original allegations in order to put the remaining issues in context and to understand the overall impact of the expert and other evidence. Only then will the court be able to survey the full panorama, to take account of the totality of the evidence rather than isolated chunks of it and to avoid a compartmentalised or to narrowly focused evaluation.

In respect of TP, Dr Hellin concluded that she did not have any personality disorder or any psychiatric condition. She observed that her identity and sense of self and of competence is very much based on her role as a mother carer and the proceedings have attacked this making her feel very insecure vulnerable, self-doubting and frightened. TP’s history and presentation is not consistent with some of the markers of those who perpetrate FII. Her own health problems from 2003 onwards may have been caused by fibromyalgia and arthritis which were not identified until later. She did not reach any clear conclusion on the extent to which TP’s health complaints might have a psychological component; whether somatoform or fabricated. She noted that TP herself considered that since they were diagnosed they have been well managed. In respect of CP, he concluded that he did not have a history of mood or personality disorder or a psychiatric condition. His physical health has been unremarkable. He is a relatively psychologically resilient man without specific psychological difficulties. There is nothing to suggest that physical or mental health conditions have any particular significance in his family or his upbringing and there are no psychological factors identified would explain why he might inappropriately seek referral or diagnoses for children or act precipitately with regard to gender dysphoria. Research in relation to non-perpetrating fathers of children who have been subject to FII shows they tend to be uninvolved in the family; CP is certainly not uninvolved; he takes a central role in the children’s care. Both were reflective about the issue of gender dysphoria albeit were overly pragmatic about R or perhaps complacent about H.

Dr Ward is a consultant paediatrician who had previously been a designated doctor for safeguarding for a number of clinical commissioning groups. She carried out a paper-based review in order to provide an overview of the children’s medical histories and to whether consider and report on the actions of CP and TP and in particular whether their actions had caused or contributed to any impairment of the children’s health treatment or medical condition.

The report comprises some 209 pages including detailed medical chronologies. I will confine myself to consideration of her Executive Summaries for the purposes of this judgment.

Dr Pasterski is a chartered psychologist and gender specialist with 23 years of experience in conducting gender identity assessments in children and adolescents. In her report she identifies that there have been recent changes to the diagnostic criteria for gender dysphoria and that research on mental health and transgender children have shed light onto critical historical misunderstandings related to clinical presentation in gender dysphoria. Firstly, that children who present with gender dysphoria are likely to desist in their cross-gender identification and secondly that gender dysphoria is inherently associated with high rates of comorbid psychopathology. She notes both have been shown to be false. She identifies that these misunderstandings arise from two particular factors. Firstly earlier studies which showed that up to 80% of children desist in gender dysphoria included children who presented with gender incongruent behaviour but did not necessarily state the wish to be or that they were the other gender. Thus children displaying gender variance may have been wrongly diagnosed with gender dysphoria. As a result of this treatment protocols previously incorporated a watch and wait approach which had prevented truly dysphoric children from transitioning which had likely resulted in increased rates of depression and anxiety. As Dr Pasterski puts it ‘Put simply, many who have shown to desist were likely not dysphoric and psychopathology in those who persisted was likely due to forbidden expression of their true gender identity.’ Current guidance suggests that supporting a child who clearly and consistently states that they wish to be the other gender in their preferred gender role is associated with improved mental health and well-being.

In relation to CP and TP’s family and the children she offers the following opinions.

Alex Sayer was commissioned to carry out an independent social work assessment of CP and TP. Given the expert assessments that were being commissioned from medical experts her report defers in various aspects to their opinions and also identifies areas where the court might have to determine the factual basis underpinning some of the local authority concerns. Some of the salient opinions expressed in her report are as follows:

FPR 29.4 provides as follows

Although such applications will usually be made in writing pursuant to FPR 29.4(3) it is not essential and in this case the application was not issued but was notified well in advance of the IRH.

In Re W (Care Proceedings: Functions of Court and Local Authority) [2014] 2 FLR431 the Court of Appeal concluded (strictly it was obiter) that such an application involves the determination of ‘a question with respect to the upbringing of a child’ and thusthe paramountcy principle in section 1(1) of the Children Act 1989 applies. The question upon such an application is whether the proposed withdrawal will promote or conflict with the welfare of the child. Because the court is conducting an inquisitorial or at least quasi inquisitorial process ultimately the decision on whether the proceedings should continue or be withdrawn is that of the court not of the local authority.

In A Local Authority v X, Y and Z (Permission to withdraw) [2017] EWHC 3741

The authorities thus identify two distinct approaches; one which will apply where it is arguable that the threshold might be established (Type II), the other applicable where the inability of the local authority to demonstrate facts which cross the section 31 threshold is obvious (Type I). In such a case no basis will then exist for the state to intervene in the life of the family, or interfere with the right to respect for family life protected by article 8. As noted by Cobb J at paragraph 18 in J, A, M and X (Children)[2014] EWHC 4648 (Fam), the threshold criteria operate as a bulwark against wrongful interference by the State with family life. The burden of proving facts which satisfy the threshold lies on the local authority on the balance of probabilities and the court operates a binary system where a fact is proved or is not. If it is not proved it did not happen. Mere possibilities are not sufficient to cross the threshold.

Thus where it is obvious the threshold could not be crossed; the authorities indicate that the application for permission to withdraw must succeed. This is not because the court has not applied the paramount welfare of the child but because where there is obviously no basis for the state to interfere (or for the local authority to bring proceedings) it is plainly in the child’s welfare that the proceedings terminate and for the child to resume ordinary family life without the cloud of uncertainty, intrusion and stress which accompanies the court process.

On the other hand where there is a possibility that the threshold might be crossed the court must undertake a more detailed evaluation of the situation. In J, A, M and X(Children) [2014] EWHC 4648 (Fam) Mr Justice Cobb observed that:

He went onto conclude that in such a case the court should consider whether the factfinding exercise to determine whether the threshold was in fact established should go ahead should be determined by reference to the 9 factors identified by McFarlane J (as he then was) in the ACC case and set out by Mr Justice MacDonald inIn A LocalAuthority v X, Y and Z (Permission to withdraw) [2017] EWHC 3741 (Fam)

What in practice though meets the test of ‘obvious’ so as to fall into the Type I approach? On the other hand what do we mean when we identify a case where the threshold ‘could’ be crossed or where it is ‘possible’ that it could be established? Mr Justice MacDonald considered such a case was made out where there was no nexus between the activities of the parent and any harm or risk of harm, hence his reminder of the President’s dicta in Re A. The same situation existed before Mrs Justice Knowles in Re ABCDE [2018] 1841 (Fam) where allegedly extremist behaviour was not demonstrated to have caused any significant harm or to give rise to a likelihood of the children suffering significant harm attributable to those beliefs or behaviour. The situation Mr Justice McFarlane (as he then was) was faced with in ACC-v-P (above) was very different indeed. There the court had to consider whether to conduct a factfinding hearing in relation to injuries sustained by a child which may have been caused by his father. Although no care or supervision order was sought because the child was to remain in the care of the mother with only supervised contact to the father, McFarlane J rejected a submission that if all parties to a case applied to have the proceedings withdrawn then the court had no option but to grant their request. In determining whether a fact-finding was required he identified 9 points which the court would need to consider when deciding whether to exercise its discretion in favour of conducting a fact-finding exercise or not. In identifying those factors, he drew on a series of cases identified at paragraph 22; I note that most of them if not all of them involved such a decision being taken in the context of the threshold having been conceded and the court needing to determine whether to go further. On the facts of that case it was clear that the possibility of the father having inflicted serious injuries on his son would be relevant to his future relationship with his son and so a factfinding was required. That it seems to me was an example of it being obvious not that proceedings should be withdrawn but that proceedings would need to continue to factfinding.

Thus one can see some cases which are easily recognisable as falling into the Type I ‘obvious’ category. Equally there will be others which are easily recognisable as falling into the Type II category. Those may range from the very obvious sort encountered by McFarlane J in ACC-v-P through to the more nuanced example Cobb J dealt with. That of course leaves something of a blurred dividing line. I do not think that ‘obvious’ is limited to ‘easily identified’. Some may indeed be easily identified for instance where non-accidental injury was alleged but clear expert evidence is obtained which identifies a medical aetiology for the injury. But there will be others

In many cases the distinction between the Type I and the Type II case may ultimately lead to no difference in the outcome. In many Type II cases the application of the 9 ACC-v-P factors and the cross-check with paramount welfare will lead to permission to withdraw. In both cases no findings will be made against the parents and thus applying the binary rule they emerge with a clean bill of health. In some Type II cases though the court may refuse to grant permission to withdraw and the case will progress to fact-finding. Thus there is a material difference. Even in those Type II cases where leave to withdraw is granted it seems to me that although there is no difference in terms of the absence of findings it may still be important for the parties, in particular the parents and the child, to know whether that outcome is as a result of the court concluding that whatever the reasons for the institution of the proceedings it was obvious by the time the court came to determine them that there was no basis for the state to intervene. Whilst I’m not at all convinced that the submission made by Ms Cheetham QC at paragraph 47 of her skeleton is accurate forensically it may have some traction on a human level.

Whilst I am cautious about importing concepts from the criminal or civil arena into this process it may be that some assistance can be gained in understanding what we mean in this context by ‘obvious’ by reference to what is meant in the criminal context by ‘no case to answer’ or in the civil context of ‘no reasonable ground’ or no real prospect of success. One aspect of submissions of no case to answer involves the consideration of whether evidence taken at its highest, but not picking out all the plums and leaving all the duff behind, might require the case to be left to the jury. It seems to me that in some cases it may be ’obvious’ that the threshold cannot be established because viewed in its totality and without compartmentalisation or narrow focus the duff clearly outweighs the plum. In the criminal context that exercise will be undertaken bearing in mind the standard of proof would be ‘sure’ whereas in the current context the standard would be ‘more likely than not’ which would suggest cases with fewer plums (supporting possible threshold) and more duff (undermining threshold) might not properly be categorised as obvious. But even having regard to that wider gateway evaluation of whether it was obvious that threshold could not be established, it would permit consideration of issues as to witness credibility, competing or inconsistent accounts, differences in medical opinions etc, none of which may be put to the test but are considered in written form only. And this exercise of a summary appraisal will only of course be undertaken when the Local Authority has applied for permission to withdraw proceedings. In most cases, albeit not all, this course of action will probably be supported by all the parties and the court will be carrying out its role as independent and dispassionate arbiter.

Drawing these threads together there may be some cases which are obvious because they hinge on a single issue which is readily discernible, others may be obvious because the overwhelming weight of evidence points in one direction, in others there may be no clear causal link between the behaviour complained of and any harm or risk of harm and in others a more detailed albeit summary evaluation of the evidence may demonstrate that the plum/duff balance makes it obvious threshold could not be established. As with the elephant such cases may be easier to recognise than to describe.

So is this a Type I case where it is obvious the threshold cannot be established and where the grant of permission to withdraw follows near automatically as a consequence of the child’s paramount welfare being met by the withdrawal of unsustainable proceedings? Or is this a Type II case where it is possible that threshold could be established and where I need to:

Essentially for the reasons articulated on behalf of CP, TP, and the Guardian, I consider that this is a Type I obvious case. The principal reasons underpinning my conclusion are as follows:

Whilst at first blush, or perhaps at a prima facie level, the argument that the threshold could be established by reference to the matters set out in paragraphs 29(a)–(d) is understandable and indeed perhaps an intellectually honest one, a more detailed and rigorous examination lead to the inexorable conclusion that it is obvious that the threshold could not be established on those vestigial grounds. For my part I see that principally as an exercise of the plums/duff sort where the balance of the evidence viewed in its totality and on its broad panorama makes it obvious threshold could not be established. It might also be the case that in some respects the parental behaviour alleged does not show a causal link with the causation of significant harm or the risk thereof. I have not felt it necessary to conduct that analysis having reached my conclusions on the obvious balance of the evidence. Having reached that conclusion it is self-evident that it is not in the children’s welfare interests for these proceedings to continue any further. I will therefore grant permission to the local authority to withdraw these proceedings.

Having reached that conclusion I do not need to go on to consider whether a factfinding ought to be held in respect of threshold issues which could possibly be established. Suffice to say that for the reasons set out in particular in the Guardian’s skeleton argument and that of CP, were that evaluation to be undertaken and the discretion exercised it seems inevitable that I would conclude that the discretion should be exercised against pursuing a fact-finding. Having regard to that likelihood I cannot conceive of circumstances in which it would be in the children’s welfare interests to allow these proceedings to continue for any reason.

Given the very extensive investigations that have been carried out in relation to the family of CP and TP and given the very obvious and considerable impact that these proceedings have had upon CP and TP and the children it seems to me that the court system owes them a full explanation as to why and on what basis I am granting permission to the local authority to withdraw these proceedings. I hope in the course of this judgment that I have done that. Given the very extensive investigations that have been undertaken and the time that the parties and the court has invested it seems to me more satisfactory in the final analysis that the outcome is dictated by the overwhelming weight of the evidence rather than the narrower or more technical approach of a ‘no causal nexus’ outcome.

As Mr Justice Cobb identified at paragraph 71-73 of his judgment in LCC-v- A, M andX (above) the result of the withdrawal of the proceedings is that the allegations originally made against CP and TP in the July 2018 threshold and the vestigial threshold now score a zero.

The lives of the family should now proceed on the basis that those concerns were comprehensively dispelled as a result of the inquisitorial process that has been undertaken through the medium of this court.

I do not consider it a proportionate or appropriate exercise within the confines of this hearing and this judgment to express any concluded views on how it was that these proceedings commenced. I observed during the course of the hearing that issues relating to gender identity and the medical understanding of such issues is complex and developing and that inevitably there is some lag between those professionals at the cutting edge such as Dr Pasterski and others (in which I include myself), which might have played some role in how these proceedings came about. Beyond that, as I indicated to Ms Cheetham QC at the IRH, I will not venture.

I understand that the parties have reached a near complete agreement in respect of the residual issues relating to life story work and contact which will need to be dealt with either in child in need plan or a special guardianship support plan.

That is my judgment.