Case No. KH18C00272

.37.Paragraphs 24 to 28 are expressed in the typically trenchant language employed by the then President, Sir James Munby, and I have in particular in mind paragraph 27 where he says this: "In this connection, that is to say dealing with evidence, I venture to repeat what I recently said in Re C (Children Residence Order. Application Being Dismissed at Fact-Finding Stage) [2002] EWCA Civ 1489. These are not ordinary civil proceedings, they are family proceedings where it is fundamental that the judge has an essentially inquisitorial role, his duty being to further the welfare of the children, which is by statute his paramount consideration. It has long been recognised, and authority need not be quoted for this proposition, that for this reason a judge exercising the family jurisdiction has a much broader discretion than he would in the civil jurisdiction to determine the way in which an application should be pursued. In an appropriate case he can summarily dismiss the application as being, if not groundless, lacking enough merit to justify pursuing the matter. He may determine that the matter is one to be dealt with on the basis of written evidence and oral submissions without any need for oral evidence. He may decide to hear the evidence of the applicant and then take stock of where the matter stands at the end of that evidence." 38."The judge in such a situation will always be concerned to ask himself: Is there some solid reason in the interests of the children why I should embark upon, or having embarked upon, why I should continue exploring the matters which one or other of the parents seeks to raise? If there is or may be a solid advantage for the children in doing so, then the enquiry will proceed, albeit it may be on the basis of submissions rather than oral evidence, but if the judge is satisfied that no advantage to the children is going to be obtained by continuing the investigation further, then it is perfectly within his case management powers and the proper exercise of his discretion so to decide and to determine that the proceedings should go no further." 39.I venture with becoming diffidence to add one further paragraph from that judgment, I having been a member of the constitution, and just refer to some words that appear at paragraph 82: "In a highly conflicted case where permanent removal and placement are serious possibilities, and that is increasingly the case with young children, it is only the judge upon whom the responsibility for case management should fairly rest. To leave it to the parties is to impose on them a burden potentially so onerous as to be unfair for especially on behalf of parents, no stone should be left unturned, however small it may seem. Of course, if that responsibility is to be discharged, it is essential both that the judge has had sufficient opportunity to master the case and also that judicial continuity is provided." 40.I cite that paragraph for two reasons. One, because it indicates that judicial case management is an art form rather than an application of scientific principles, and also because it seems to me that the court intended all its observations to apply right across family proceedings, even if the illustration in the language used by the President was actually taken from a private law case. 41.As I say, I have concluded that that properly represents the modern approach to case management and, accordingly, I am satisfied that the court does have jurisdiction to bring proceedings to an end at any time before the conclusion of the final hearing. I am satisfied that the combination of statute and rules give the widest powers of control of case and trial management to the individual judge. 24.Although accepting that a jurisdiction to dismiss proceedings was available, Sir Mark explained that it was not a power that was comparable to a submission of no case to answer in criminal proceedings. At paragraph 42, Sir Mark said: “This is not, I stress, to introduce a concept of an application of no case to answer in the conventional criminal sense. I accept unreservedly the assertion that that as a concept has no proper place in family proceedings. But that is not the end of the matter because I do accept that there is a place at any stage of the proceedings for the court to intervene in terms of case and child management power. Those interventions are exclusively the responsibility of the court, but I see no reason in principle why a respondent should not have the ability to invite the attention of the judge to it if, as is undoubtedly the case here, such an invitation would be a responsible use of advocacy.”25.Sir Mark then expressed the view that, although the court had the power to bring an end to a hearing in this way, it was a jurisdiction that would be used only in the most exceptional of circumstances. The examples given concerned medical evidence in an injury case changing substantially during the trial, revealing a benign causation for the injury that required no explanation by the parents in oral evidence. Sir Mark also accepted that the pursuit of care proceedings as a vendetta against a parent, in circumstances that amounted to an abuse of the process of the court, could be a further situation in which the court may wish to force an end to a hearing. In both circumstances, it was Sir Mark’s view that it would only be appropriate to exercise this jurisdiction when there is “something which impinges on the integrity of the trial process”.26.The decision in AA v 25 others was considered by MacDonald J in A Local Authority v W and Others (Application for Summary Dismissal of Findings)[2020] 2 FLR 1219. The facts of the case before MacDonald J were very different and involved an application to dismiss proceedings at an early case management hearing. At paragraph 54 of the judgment, MacDonald J explained “In Re H-L, the Court of Appeal made clear, albeit within a slightly different context to that arising in the present case, that a decision to determine summarily issues in public law proceedings is governed by the procedural rules set out in Part 12 FPR 2010 and not any alternative procedural regime. In this context, pursuant to FPR r.12.25(c), the court is required to identify at the case management stage the issues in the case, as a specific application of Part 1 and Part 4 of the FPR 2010 to public law cases, by which Parts the court is given power to determine which issues need full investigation and hearing and which do not and to exclude an issue from consideration. With respect to children proceedings, the FPR 2010 expressly prohibits the striking out of a statement of case in such proceedings and the FPR contains no power to order summary judgment. “27.At paragraph 58, MacDonald J said: “Sir Mark Hedley was not concerned in [AA v 25 Others] with the question of deciding, at the case management stage, whether a disputed finding or group of disputed findings should or should not be summarily determined. Rather, he was concerned with the power of the court in public law proceedings to decide to bring the proceedings as a whole to an end prior to the conclusion of an ongoing final hearing. It remains to be seen whether the analysis in [AA v 25 Others] can survive the later decision of the Court of Appeal in Re H-L but that is not a question for this court…”28.As described above, I have not heard argument concerning whether the jurisdiction identified by Sir Mark Hedley has survived the decision of the Court of Appeal in Re H-L (Children: Summary Dismissal of Care Proceedings) [2019] EWCA Civ 704. The dispute before me concerns its application. Mr Storey submits the examples given by Sir Mark of when such a power would be used were illustrative and not exhaustive. Mr Storey argues that the investigation and evidence-gathering in this case has so corrupted the reliability of the evidence that it undermines the integrity of the trial process. Mr Storey asks, ‘if the court will not intervene on the facts of this case when would it ever intervene?’. 29.The Local Authority submits that the court would be extending the reach of the jurisdiction identified by Sir Mark if it was to accept Mr Storey’s submissions and dismiss this case. It is submitted that the Local Authority case may well be in difficulty but it has not collapsed. It is said breaches of guidance do not necessarily result in a conclusion that all of the Local Authority’s evidence has no weight. It is submitted that the court has to undertake an evaluation of the effect of the breaches of guidance it might find proved on the evidence obtained. It is submitted that the need for that evaluation takes the facts of this case beyond the reach of the power identified in Re AA, as such an evaluation can only take place once the court has heard the oral evidence of the Respondents. 30.As the Local Authority submits that there would be an impermissible extension to the identified jurisdiction, in my judgment it is necessary to consider what effect the decision in Re H-L (Children: Summary Dismissal of Care Proceedings), has on the power to dismiss as identified in AA v 25 Others. In Re H-L, the Court of Appeal allowed an appeal against the decision of a Circuit Judge to dismiss a Local Authority’s case at a case management hearing. The Court of Appeal described the case as unprecedented as “neither this court nor counsel appearing before it are aware of a previous instance, reported or not, of care proceedings being dismissed at an interim procedural stage against the opposition of the local authority and the Children’s Guardian”. 31.Peter Jackson LJ characterised the case management provisions of Part 12 of the Family Procedure Rules 2010 and Practice Direction 12A as providing a “selfcontained code designed to assist the parties and the court to deal with care proceedings justly and efficiently. Part 12 is a specific application to care cases of Part 1 (the Overriding Objective) and Part 4 (General Case Management Powers) and contains detailed provisions reflecting the spirit of those earlier parts of the Rules. Part 12 is therefore likely to contain all the powers that the court needs, making it unlikely that recourse to the more general procedural provisions will be necessary; at all events, in a case to which Part 12 applies the earlier provisions do not represent an alternative procedural regime.”32.In AA v 25 Others, Sir Mark Hedley found that he had jurisdiction, beyond that found in part 12 FPR 2010, to dismiss a Local Authority case by drawing on observations made by Sir James Munby in Re TG (Care Proceedings: Case Management Expert Evidence) [2013] 1 FLR 1250 and Re C (Children)(Residence Order: Application being Dismissed at Fact Finding Stage)[2012] EWCA Civ 1489. Of the later, Peter Jackson LJ said the following in Re H-L: “In terms of case management authority, I finally refer (but only for reasons that will become apparent) to the earlier decision of this court (Thorpe and Munby LJJ) in Re C (Children) [2012] EWCA Civ 1489. That was a private law case in which the judge had effectively stopped the proceedings having heard the applicant because he took the view that the application would inevitably fail and that there was no purpose in continuing. In giving the leading judgment, Munby LJ said at [18]: “It is pre-eminently a matter for the trial judge in a case of this sort to determine the form of procedure which will best meet the welfare needs of the children.”I have to say that I do not regard that decision as being of assistance in the present case, and I note that Sir James Munby, a member of the court in both Re C and Re S-W, took a very different approach in the later case, no doubt because it concerned child protection and state intervention within a formal framework.”33.Having carefully considered the decision in Re H-L, in my judgment the Court of Appeal said nothing that directly undermines the decision of Sir Mark Hedley in AA v 25 Others. Peter Jackson LJ said that part 12 is likely to contain all the case management powers required in a part 4 application, but that does not of itself exclude exceptional situations, such as those described by Sir Mark. It is the Local Authority’s own submission that Sir Mark’s conclusions do survive the judgment of the Court of Appeal in Re H-L. 34.I have found no good reason to disagree with Sir Mark’s decision. In such circumstances I am required to follow the approach as described by Lord Neuberger in Willers v Joyce (No 2) [2016] UKSC 44, [2018] AC 843 where, at paragraph 9, he said "So far as the High Court is concerned, puisne judges are not technically bound by decisions of their peers, but they should generally follow a decision of a court of co-ordinate jurisdiction unless there is a powerful reason for not doing so. And, where a first instance judge is faced with a point on which there are two previous inconsistent decisions from judges of co-ordinate jurisdiction, then the second of those decisions should be followed in the absence of cogent reasons to the contrary". I accept the jurisdiction to dismiss care proceedings, as described by Sir Mark Hedley, survives the decision in Re H-L.