C and D (Refusal to Hold Fact-Finding Hearing), Re

The court is concerned with care proceedings relating to C aged 14 years and her younger brother, D who is nearly 3 years old. Both children are the subjects of interim care orders and are presently placed in separate foster homes. These proceedings were issued on 1 July 2024 and are listed for a fact-finding hearing with a ten day time estimate on 29 June 2026 and a final hearing at the start of November 2026. The issue before the court is whether a fact-finding hearing is necessary and proportionate.

By way of a preliminary observation, these proceedings are nearly two years old and resolution for both C and D is long overdue. The delay has been caused by the ongoing police investigation into the death of E, the sister of D, in the summer of 2024. Her death and the complex circumstances surrounding it necessitated both the issue of care proceedings and a prolonged investigation into the care received by all three children.

I am very grateful to the parties for their careful and succinct legal arguments, both written and oral. After hearing argument and with some time for reflection, I determined that a fact-finding hearing was not necessary in this case. I reserved the reasons for my decision and gave further case management directions with a view to an effective IRH in early October 2026. Should the care plan for C be capable of earlier resolution as seems likely, I will create space in my diary to do so.

In coming to my decision, I read the material included in the reading list together with the parties’ written submissions. I am familiar with this matter since it has been allocated to me from late autumn 2025.

This is a relatively short ruling as the case law is well settled even though the circumstances of this case are unusual and complex.

Prior to summer 2024, neither C, D, nor E were known to children’s services. All three children lived with their mother. Mr B is the father of C. D and E were conceived via IVF using an anonymous sperm donor.

In the summer of 2024, the mother left for work at about 07.45, leaving C - then aged 12 years - to care for her siblings, then aged 14 months. At about 10.00, C texted her mother to report that the younger siblings were well, had eaten and been changed, and had been put down for a nap at 09.30. At about 14.00, C rang her mother to say that she could not rouse E. The mother called a neighbour who arrived at the family home at about 14.06. The neighbour called an ambulance as E was unresponsive. An ambulance arrived some 10 minutes later and, on examination, paramedics noted bruising to both E and D. Sadly, neither paramedics nor hospital staff could revive E who remained in asystolic cardiac arrest until death was pronounced at 15.17.

C and D were removed from the care of the mother that evening. The following day, D underwent a child protection medical and was subsequently admitted to hospital for further investigation. Both children were eventually placed with local authority foster carers where they remain to date. The mother was arrested for child neglect and both she and C have been interviewed by the Police on two separate occasions.

The medical evidence obtained by the police concluded that the cause of E’s death is unascertained. Dr Jamie Robinson, Home Office pathologist, conducted an autopsy examination in respect of E, assisted by Dr Gemma Petts, paediatric pathologist. His report identified a number of visible injuries of varying ages but revealed no natural disease or internal injuries which could account for E’s sudden and unexpected death. Neuropathological examination of her brain revealed changes indicative of a brief (likely terminal) period whereby the brain was deprived of sufficient oxygen. Death appears to have been relatively rapid. Although no asphyxial signs were present, upper airway obstruction by prone positioning (or other forms of upper airway obstruction including non-accidental injuries such as deliberate smothering), could not be excluded as the cause of death. While there were no obvious signs of suffocation, accidental airway obstruction could not be ruled out nor could the possibility of deliberate smothering. In the light of overtly concerning facial bruising (raising the possibility of nonaccidental injury) and an unexplained finding of anogenital bleeding, the death could not be appropriately assigned to Sudden Infant Death Syndrome (SIDS).

Dr Robinson detailed scalp and facial bruising on the forehead and both sides of E’s face of differing ages, some of which appears to have been caused within hours prior to her death and some of which appears to have been caused several days beforehand. In response to questions posed by the parties, Dr Robinson confirmed that, following injury, a defined sequence of microscopic cellular events could be used as an “approximate estimate of wound age” though it should be emphasised that the ageing of bruises was not an exact science. He posited a time bracket of up to 4 hours prior to death for some of the facial and scalp bruising. He concluded that the facial and scalp bruising were likely inflicted injuries, reflective of blunt force trauma. In addition, a number of scars were identified on E’s body but there was nothing in her medical records describing any previous injury which might account for the scarring.

During the child protection medical, D was found to have a soft tissue injury to his left cheek and an injury to the right side of his chest. Dr Mohammed, the consultant paediatrician who provided expert evidence about these marks, was of the opinion that both marks had been caused some two to three weeks earlier. The mark to the left cheek was likely caused by D being struck on the face with a loop cord or cable. The mark over the right side of chest was likely caused by forceful impact with an object that had a corresponding contact surface, resulting in the hyper-pigmented appearance of the injury. Dr Mohammed ruled out rough play as a cause of the injuries to D.

Turning from the medical evidence of injury, a number of reports have been prepared by Vicki Hamilton, clinical psychologist, focusing on C’s presentation. Her initial assessment was that C had a history of selective mutism, known as situational mutism. This is a severe anxiety disorder characterised by the inability to speak in certain circumstances. A further report was provided by Ms Hamilton in February 2026. This confirmed that C has significant communication difficulties (situational mutism) and marked social anxiety. Moreover, a key feature of her presentation was both a tendency to under-report distress and defensive avoidance, manifesting itself as going quiet or looking blank/frozen. C’s history was consistent with significant post-traumatic stress in response to E’s sudden death and her abrupt separation from her mother and brother in the context of her long-standing social anxiety and situational mutism. Ms Hamilton concluded that C was “a psychologically vulnerable young person whose main risks lie in terms of ‘hidden’ internal distress, trauma-related defensive avoidance, and a communication style that made it easy for professionals to underestimate both her anxiety and the emotional impact of past events and ongoing proceedings on her”.

Ms Hamilton described various interventions that could be used in an attempt to reduce the adverse impact on C of giving oral evidence and/or speaking to her legal representatives. However, it was clear that the impact of this could be profoundly damaging in both the short and long term. Ms Hamilton was of the opinion that:

“This kind of work will have short-term implications emotionally, in terms of triggering powerful and difficult feelings for her, increasing the likelihood of her becoming more withdrawn, quiet or frozen, or resorting more to silence/non-response or minimal answers, and she may also show increased avoidance of people or places linked to the case.

In the longer term, repeated or poorly supported discussions about the death of her sister, and the local authority allegations, risk strengthening her avoidance of such conversations, as well as having a negative impact on her sense of herself as being ‘bad’, which can consolidate trauma-related shame and increase later anxiety and depressive symptoms. She may also feel angry and betrayed by professionals, and withdraw further from them, thereby increasing her emotional isolation and further limiting possible avenues of support.”

I can summarise the positions of the parties as follows.

In its amended threshold document and schedule of findings, the local authority confirmed that it did not seek any finding about the cause of E’s death which it accepted could only be described as unexplained. Thus, no findings were sought that E died as a result of an inflicted injury or as a result of conduct which would meet the threshold criteria. However, the local authority sought findings that the bruising to E and D identified as inflicted injuries (see above) was caused by the mother and/or C. Specifically, it pleaded that the bruising said to have been inflicted within four hours of E’s death was caused by C, or alternatively by either C or her mother, or by both. In effect, it sought a sole perpetrator finding against C, but, if that was not established, then an alternative perpetrator finding against the mother and C or a joint perpetrator finding against both of them. Additionally, the local authority pleaded that the older bruising to both children was caused by either C or her mother, or by both of them. It did not seek a sole perpetrator finding in respect of the old bruises.

No party required C to give evidence if a fact-finding hearing were to take place.

At the hearing, the local authority was the only party to advocate for a fact finding hearing. Such a hearing was said to be necessary in order to establish the factual basis for risk assessment of both the mother and C. Mr Tughan KC pointed to the very serious consequences for C of acquiescing to a finding that she could not be excluded as a perpetrator of the injuries said to be up to 4 hours old prior to E’s death. He acknowledged that, on the expert medical evidence, the timeframe for the causation of those injuries was likely to be an elastic one but suggested that some very limited exploration with the relevant medical experts might provide a route whereby the court could be satisfied that the mother was the sole perpetrator of these injuries. Any fact-finding hearing would likely be no more than three days in length.

Turning to the mother, she accepted that the threshold criteria were overwhelmingly met and that leaving the younger siblings in C’s sole care without adult supervision on the date in question was plainly harmful. She acknowledged that the events in the family home on that date would have been traumatic for C. C being the subject of a police investigation into the death of her sibling and facing the prospect of being further questioned about the death within care proceedings was a direct result of the mother’s harmful act of leaving the children without adult supervision. The mother did not challenge the medical evidence which pointed to D and E sustaining inflicted injuries and did not resist a finding that those injuries were caused by either her or C. She accepted the need for a robust risk assessment and that it was unrealistic for her to seek the return of D to her care. She supported his placement with his maternal uncle abroad but hoped that she may be able to provide a home for C. Mr Ekaney KC submitted that, on the basis of the expert reports by Vicki Hamilton, putting C through any forensic process was likely to cause her even more harm than that which had already been caused by her mother. A fact-finding hearing was unnecessary and inappropriate because the mother’s concessions provided a solid factual basis for both risk assessment and safety planning. The medical evidence was unlikely to result in a sole perpetrator finding and any attempt to establish such a finding was disproportionate given the evidential difficulties with C’s participation.

Mr Howling KC on behalf of the father adopted the submissions made on behalf of the mother. He did not seek to care for either C or D but hoped to maintain contact.

On behalf of C, it was contended that a fact-finding hearing would be unlikely to result in a sole perpetrator finding being made against her in respect of any of E’s injuries. In the light of the mother’s concession that it was unrealistic to seek D’s return to her care, the focus of any assessment would not therefore be on the risk C might pose to her brother in their mother’s care. Mr Goodwin KC explained that C’s legal team had deliberately not attempted to meet with her to discuss the threshold schedule because of the conclusions reached by Ms Hamilton. However, if the court decided that a fact-finding exercise was required, they would consider whether they should attempt to take instructions from C. This would not be a straightforward exercise and was clearly not in her welfare interests. Mr Goodwin KC’s view was that, within the forensic process to date, C’s welfare interests were dominant.

Finally, D’s children’s Guardian adopted the submissions made on behalf of the mother and C in what she described as a difficult and unusual case.

The legal approach to this issue is well-defined so what follows is a succinct precis.

A decision to hold a fact-finding hearing is an important case management decision to which the Family Procedure Rules 2010 apply. The starting point is the overriding objective in rule 1.1 to deal with the case justly in ways which are proportionate to the nature, importance and complexity of the issues (rule 1.1(2)(b)) and to allot to it an appropriate share of the courts resources, while taking into account the need to allot resources to other cases (rule 1.1(2)(e)). In achieving the overriding objective, the court will seek to actively case manage and to determine which issues need full investigation and hearing, and which do not (rule1.4(2)(c)(i)).

The decision on fact-finding should be resolved by reference to the factors identified in Oxfordshire CC v DP, RS and BS [2005] EWHC 1593 (Fam), these being: (a) the interests of the child which are relevant but not paramount; (b) the time 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 future care planning; (g) the impact of any fact-finding process upon the other parties; (h) the prospects of a fair trial on the issue; and (i) the justice of the case.

In Re G (A Child) (Scope of Fact-Finding hearing) [2025] EWCA Civ 1044, the Court of Appeal confirmed that the long-standing ‘Oxfordshire’ approach remained relevant and valid. Thus, all the relevant ‘Oxfordshire’ considerations should be applied flexibly in the light of the overriding objective.

This is an unusual and difficult case for a number of reasons. First, the local authority potentially seeks a finding against a young person who is the subject of proceedings herself, namely a finding that C inflicted bruising on her baby sister in the hours prior to her sister’s death. Second, C is a young person with significant communication difficulties and marked social anxiety which has been exacerbated by the events in the summer of 2024. She is psychologically vulnerable and, however sensitively this might be handled by her legal team, likely to experience significant emotional and psychological harm if she has to be involved in the forensic process for which the local authority contends. Third, the position advanced on behalf of C is being advanced without her specific instructions because of her vulnerability as described in Vicki Hamilton’s reports. C does have a children’s guardian who, together with her legal team, is taking a careful and welfare-focused approach to C’s involvement in this litigation. This court makes no criticism of the case advanced by C’s legal representatives even though it is highly unusual to do so without taking instructions from C herself. No party to the proceedings suggested that any alternative approach to inform the court’s decision on fact finding was appropriate and all endorsed the careful manner in which C’s legal team were representing her interests.

I will address the Oxfordshire factors out of sequence given the particular circumstances of this case. For the avoidance of doubt, I am clear that the suggestion by the local authority of a possible joint perpetrator finding is speculative at best.

The necessity and evidential outcome of any fact finding hearing are closely linked and point away from holding such a hearing for the following reasons. First, C will not be giving evidence at any hearing and, save for the medical evidence, there is an absence of any other independent evidence which points to her as a sole perpetrator of E’s recent injuries. Second, the ageing of the recent bruises rests on the histological analysis conducted by Dr Robinson and by Dr Petts. The cellular analysis focuses on the paucity of neutrophils or other inflammatory cells within the relevant bruises. Different types of white blood cells appear at the site in the aftermath of injury, of which neutrophils come first and “are not normally encountered in significant numbers until 1-4 hours after the injury”. In E’s case, the histology showed “either no or very few neutrophils”. Dr Robinson was at pains to emphasise that the ageing of bruising was not an exact science and the timings based on cellular activity should be seen as a general guide only. One feature of this case is that the time of E’s collapse and prolonged cardiac arrest cannot be identified with any precision. Thus, if she collapsed shortly before C found her at about 14.00, it would have been about six hours since the mother left the family home. I observe that, given Dr Robinson’s caution about the ageing of bruising within what, on the present medical evidence, can only be regarded as an elastic timeframe, the histology does not potentially exclude the bruising having been sustained some 6 hours before E’s collapse leading to her death. Thus, I do not share Mr Tughan KC’s optimism that an exploration of the parameters of cellular activity in the context of this case will firm up the timing of the relevant bruising so as to permit the court to make a sole perpetrator finding.

Even if the histological evidence were to develop in the manner Mr Tughan KC suggested it could, a sole perpetrator finding would, in my view, properly require the court to receive and examine the accounts given by the mother and C about events on the day in question. The mother has filed witness statements and can be cross-examined but that is not the position for C. Whilst she has been interviewed by the police, there is no witness statement from C and no party seeks to call her to give oral evidence. Given the seriousness of the findings potentially in play for C, it is difficult to see how the court could make a sole perpetrator finding without also hearing and taking into account C’s oral evidence about events in the summer of 2024. Further, the court would need to factor into its assessment that there appears to be no means of narrowing the timeframe for the infliction of D’s injuries and thus both the mother and C are also potentially implicated as perpetrators for these injuries. In the light of these matters, as the likely evidential outcome of any fact finding enquiry points towards the making of an alternative perpetrator finding which includes the mother and C, its necessity is questionable to say the least.

Further, a fact finding hearing is neither necessary nor relevant for purposes of future care planning. Risk assessment is about the “realistic assessment of risk” and “not about the elimination of all risks” (per Peter Jackson LJ in paragraph 34 of Re T (Children: Risk Assessment) [2025] EWCA Civ 93). The mother has accepted that D cannot return to her care and also accepts the need for a risk assessment about whether she can provide a home for C in the future. There clearly needs to be a risk assessment for both the mother and C in terms of any future direct contact with D. Any risk assessment can proceed on the basis of an alternative perpetrator finding engaging both the mother and C in relation to the inflicted injuries sustained by E and D. I note that the mother also accepted that she neglected all three children’s wellbeing by leaving them in C’s care both on the day in question and on previous occasions. A sole perpetrator finding about E’s injuries – even if forensically achievable – would make little difference to the risk assessment given the seriousness of the mother’s neglect and the fact that D sustained inflicted injuries which could have been caused by either the mother or C.

Turning to the impact of any fact-finding process on the other parties and the prospects of a fair trial, these two matters are closely linked in the circumstances of this case. The expert evidence before the court is that C’s involvement in the fact finding process – even to take her instructions and leaving aside whether it is desirable and possible for her to give oral evidence – is likely to be seriously emotionally and psychologically harmful to her, both in the short and long term. Whilst the court is not obliged to accept the parties’ joint position that C is not required to give oral evidence, it would be a rather misguided judge - faced with the contents of Dr Hamilton’s reports - who persisted in an attempt to explore whether C should give oral evidence during a fact finding hearing. Further, if C is not to give oral evidence or indeed be capable of giving any meaningful instructions to expand on her denials of having caused injury to her siblings, can it be said that such a fact finding enquiry would constitute a fair hearing especially if she were to be harmed by the process? I very much doubt it.

The time that a fact finding hearing would take has – in the view of the advocates - been significantly reduced and the greater proportion of the costs of the investigation have already been incurred. Neither of these considerations are crucial in this case though I have factored them into my decision making.

Finally, I have considered the interests of C and D which are relevant but not paramount. It is plain that C is likely to be profoundly affected by a fact finding hearing in which she has, in whatever form, to participate. I accept Mr Goodwin KC’s submission that it is not in C’s interests to be the subject of a sole perpetrator finding either at all and especially not given the known elasticity of the histology findings. D’s interests will be safeguarded if the court were to make an alternative perpetrator finding as his mother now concedes he cannot return to her care and she will be subject to a thorough risk assessment.

In conclusion, given the analysis set out above, the justice of this case – when viewed from the perspective of necessity and proportionality – does not require a fact finding investigation into the recent bruising sustained by E before her death. The forensic benefit of any fact-finding enquiry strikes me not only as marginal but also as highly dubious given its potential effect on one of the children with whose welfare the court is ultimately concerned.

That is my decision.