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Monthly Archives: October 2012

So tired, tired of waiting, tired of waiting for you

 

 (A quick look at four cases that have been decided, but that I’m still waiting for transcripts of judgments on , and one that I’ve been waiting for for ages, and which turns out to be crushingly disappointing)

 

 

Not worthy of full blogs, until I see the full transcripts, because as lovely as summaries are, they do lose the subtleties of having the entire judgment to rifle through for gems.

 

But anyway, here are four up-and-coming interesting cases.  (and I am aware that the section 37 case – is it an abuse of process to make multiple ICOs pegging them on s37 directions when the LA haven’t made an application, went to the Court of Appeal last week, and there will be a judgment on that in due course. I blogged about that one previously here :-

 

http://suesspiciousminds.com/2012/08/31/ive-got-section-thirty-seven-problems-but-a-aint-one/   )       [And where else in legal blogging do you get both the Kinks and Jay-Z?  Can I get an encore/do you want more/cookin raw / with the Brooklyn Boy]

 

 

The first, and most recent is RE H (A CHILD) (2012)

 

CA (Civ Div) (Thorpe LJ, Lewison LJ, Hedley J) 26/10/2012

 

In this case, the LA were seeking final orders, and the trial judge instead made an Interim Care Order, adjourned the proceedings for three months, and directed a placement at a parent and baby foster placement. The Court of Appeal refused the LA appeal, and determined that the Judge was entitled to make those decisions, having weighed the negative and detrimental impacts on the child of delay against the potential positives to the child.  

The interest for me on this one will be  (a) how much of a bulwark it might be against the  “26 weeks is our aspiration, finish things off quicker” philosophy that is currently so “popular” and (b) whether it is actually authority for the Court having power to compel a Local Authority to place in a parent and baby foster placement. 

I assume that this, if there is such a power, derives from s38(6) and the Munby LJ decision in Cardiff, where he determined that a s38(6) placement didn’t have to be in a residential assessment centre, but could be with a family member.  

 

There are two schools currently, one is that the Court CAN compel a Local Authority to place in a mother-and-baby foster placement (or parent-and-baby foster placement) using the Munby decision, and the other is that the Court CAN’T compel, but generally achieves it by rejecting a plan of ICO and separation, and making the LA decide on the ‘lesser of two evils’ between that and having the child at home under ISOs. 

[I have to confess, that I am not at all sure which of those is right. My reading of the Cardiff case is that the Judge was stretching s38(6) very creatively to get an outcome that everyone in the case desired, but that it might reach snapping point to try to do it in a case that is actively litigious. But, there are passages in Cardiff that would support s38(6) being used to place a child whereever a Judge thinks fit]

 

I will be interested to see if the Court of Appeal grapple with that issue at all.  And of course, Cardiff was only a High Court decision, so if so, it will be Court of Appeal backing for that authority.

 

Next up

 

RE M (A CHILD) (2012)

 

CA (Civ Div) (Ward LJ, Lloyd LJ, Rafferty LJ) 22/10/2012

 

This one may fall entirely on its own facts, or it might be incredibly important, which is why I am so keen to read the full judgment and find out.  It was an appeal against a finding of fact hearing. The child was a few weeks old and had 8 separate bruises, left forearm, right arm and right thigh.  No explanations for the bruises were provided. The medical opinion was that they were non-accidental, in the absence of an accidental explanation. The Judge also found the parents evidence to not be credible and found that the injuries had been caused by them.

 

The Court of Appeal considered, on the brief note I have available, that this amounted to a reversal of the burden of proof and that it was not for the parents to explain how the injuries were caused accidentally, but for the LA to prove that they were caused non-accidentally.

 

[This quote from the summary, on a well known law reporting website, not necessarily an extract from the judgment itself – my underlining, to illustrate what seems to be a current direction of travel on medical cases]

 

“The medical evidence was that the marks were imprints or pressure marks from an object, but it was not possible to say what object or even what kind of object or how the pressure was exerted. Nor was it possible to say whether there was a momentary infliction of pain or a sustained pressure. The instant case was not one of a broken limb, or a cigarette burn or finger pressure. The court simply did not know what had happened or how. The judge had accepted the evidence of one of the doctors that in the absence of a benign explanation from the parents it could be concluded that the injuries were not accidental, but that conclusion did not follow, unless the burden of proof, which lay on the local authority on the balance of probabilities, was wrongly reversed and the parents were required to satisfy the court that the injuries were non-accidental. The judge had erred in finding that the parents had deliberately caused the injuries”

 

It may be that the case is entirely case and original judgment specific, but it would not surprise me, given the movement of the Court of Appeal in recent months away from “listen to the doctors” towards “the Court should actively contemplate the possibility that medical opinion is not always right, even if there is consensus” if it contains some important principles.

 

 

Next

 

RE C (CHILDREN) (2012)

 

CA (Civ Div) (Thorpe LJ, Munby LJ) 12/10/2012

 

Which involves private law, and a finding of fact hearing / change of residence hearing. The trial judge stopped the father midway through his evidence [after he had finished in chief] and gave judgment about the allegations the father was making, essentially dismissing them and the application for a change of residence.  The father appealed, in essence saying that had the Court heard mother’s evidence and he had the opportunity to cross-examine mother, his allegations would/might have been proved.

 

The Court of Appeal determined  (again, the quote is from the summary of the case, and not the transcript itself)

 

 

Given that the judge had heard F’s evidence in chief, it was entirely appropriate for him to direct himself as he did, namely that F had to establish on the balance of probabilities that there were compelling reasons why the children should be moved. It was the correct exercise of his discretion for the judge to say F had failed to meet that test. There was no error of law or approach either in his determining the standard by which F’s evidence was to be evaluated or to say he was satisfied that F had failed to prove any of the matters to satisfy the court that the residence order should be changed. It was a matter for the judge to determine the form of procedure to satisfy the welfare needs of the children and he was not obliged to listen to evidence if it was not appropriate and the process would be of no advantage to the children. The judge’s view was robust, but he did not exceed the ambit of his discretion. There was no error of law or misdirection in what he had said about the burden of proof or in taking the course that he did. He had taken a decision that was plainly open to him in all the circumstances and it could not be said that he was plainly wrong.

 

 This may be a gratefully received judgment for all Judges dealing with private law cases faced with clearly threadbare evidence for serious allegations, as they may be able to cut them short when it is clear they are going nowhere.  [I shall not speculate as to whether the number of such cases will increase or decrease as a result of certain political decisions about funding of family legal aid]

 

And this one

 

RE P (A CHILD) (2012)

 

CA (Civ Div) (Thorpe LJ, Lloyd LJ, Black LJ) 05/10/2012

 

 

Where essentially, very serious allegations of sexual abuse was made against the parents. The parents indicated that they did not seek the return of the child or any contact, and that on that basis, embarking on a judicial determination of the allegations was unnecessary   (as they were content for the Court to make a Care Order and did not seek any orders in relation to contact)

 

This is interesting, because it throws up what the role of the Court is – is it to get to the truth, or is it to determine the applications that are placed before it? If having a fact finding hearing doesn’t materially affect the order to be made, how can it legitimately take place on the one hand.  On the other, isn’t it important for the child’s care and future to know whether he or she was the victim of sexual abuse?

 

The Court of Appeal remitted the decision back to the trial judge who had decided not to have a finding of fact hearing, for further consideration – notably of the expert report that having resolution of this issue would be beneficial for the child and that future uncertainty would be detrimental to the child.  They also considered that the parents stance on contact might shift (and may have already shifted) and that it was appropriate for all of these issues to be taken into account.

 

 

 

And oh, I see that another one I was waiting for is now up

 

RE (1) B (2) H (CHILDREN) (2012)

 

[2012] EWCA Civ 1359

CA (Civ Div) (Thorpe LJ, Kitchin LJ, Dame Janet Smith) 01/08/2012

 

This case goes to the issue of having a finding of fact hearing where the suspected perpetrator had considerable learning difficulties. It is pertinent for me because I had similar issues come up with a potential intervenor in a case and the law wasn’t entirely clear on how the Court should decide whether to compel them to give evidence, and how the balancing exercise should be conducted.

 The trial judge in this reported case  decided not to go ahead with the finding of fact hearing, and was appealed.

 

Sadly, the appeal was unopposed, so the judgment is very short.  In effect, the Court of Appeal were persuaded that the role of a finding of fact hearing is twofold  (and this may feed into the case above)

 

The outcome of a fact finding investigation is not only to determine whether the section 31 threshold has been crossed, but also to provide an essential foundation for the trial of the welfare issues that lead to the management decision for the future of the child.

 

 

I can therefore suggest nothing further than the tack I used in my case, which was that the Court should weigh the article 6 right to a fair trial against the rights of the vulnerable person and would have to give leeway to the witness when considering confusion about dates, times, details and sequence of events where their learning difficulty impacted considerably

One of these nights you’re gonna get caught, It’ll give you a pregnant pause for thought

 

 (Always nice to sneak a bit of Billy Bragg into the blog.  My favourite Billy Bragg line is, of course, from Sexuality  “I had an uncle who once played / for Red Star Belgrade”)

This is a discussion of the extraordinary case of A Local Authority v S & O [2011] EWHC 3764 (Fam)

 

http://www.familylawweek.co.uk/site.aspx?i=ed102837

 

You know that something is peculiar when a High Court Judge begins with Even by the standards of the Family Court this is a strange tale.. 

 

And he is not wrong.

 

 

Mr and Mrs S were a Nigerian couple, living in England. They wanted to have a baby, and heard of a fertility clinic in Nigeria, Port Harcourt.  They paid a lot of money to this clinic, and the mother had treatment there. She returned to the UK and had tests and scans with her GP, which confirmed that she was not pregnant. She rang the Port Harcourt Clinic, who told her that this was not unusual with the process and that she should come over.  She visited Port Harcourt and was sedated and then presented with a baby.

 

Mr and Mrs S returned to the UK with the baby.  On visiting their GP, the GP considered that the care of the baby was very good, but having determined that Mrs S had not been pregnant, was deeply troubled by the story of the delivery and contacted the Local Authority.

 

A DNA test was done, showing that the child had no biological connection to either Mr or Mrs S.

 

Care proceedings were commenced, it being apparent to the Local Authority that this child had been removed from birth parents and brought into the country and was living with people who had no parental responsibility.

 

The issue that fell to be determined by the Court was whether Mr and Mrs S had been deceived and hoodwinked by the Port Harcourt clinic, or whether (as the LA asserted) it was inconceivable (pardon the accidental pun) that they had fallen for this and that they had either fully known or simply turned a blind eye to the obvious truth that this had never been their baby.

 

 

Here are the contentious findings sought

 

“(vii)  Mr. S knew or ought to have known that Mrs. S was not pregnant as asserted.

(viii)  Mr. S knew or ought to have known that O was not their biological child.

(ix)  On a balance of probabilities, Mrs. S and Mr. S were complicit in the removal of O from her biological mother at or shortly after the time of her birth.

(x)  At the relevant date, O’s care arrangements had been based upon a fundamental deception to which Mr. and Mrs. S were knowing parties.”

 

 

 

Now, this is the bit I find significant, and appalling. As the DNA test had shown that this was not their child, Mr and Mrs S had no PR, and received no public funding. So, they were fighting to defend themselves against these highly damaging allegations and also seeking to care for a child who they had formed an emotional connection though not a biological one.   Whilst my gut instinct view of the allegations was that the LA were probably right, it seems to me manifestly wrong that Mr and Mrs S had no legal representation to fight this case, and it is one of those bureaucratic idiocies which makes me slightly ashamed to be British.

 

As luck would have it, a pro bono barrister came forward, Mr Nicholas Paul, and he clearly did an admirable job for his clients.

 

 

I think it is worth setting out the history of the matter given by the mother, as it is important in trying to establish whether this was a nod and a wink  “Oh, I’ll pay for ‘fertility treatment’ but we both know I’m actually buying a baby”  or whether the clinic was actually seeking to deceive naïve and desperate couples.

 

“I have been married to Simon S since 2002.  On 8 January 2011 I gave birth to O at God’s Gift Clinic Maternity in Port Harcourt, Nigeria.  The treatment started in December 2009 under Dr. Chineri Emica Precious who gave me a number of injections and tablets and capsules.

4.  In April 2010 I started to feel the symptoms of being pregnant such as bloated stomach and gaining of weight.  I returned to Nigeria in April upon Dr. Chineri Emica Precious’s request for a medical check-up and she confirmed that I was pregnant. 

5.  I returned to the United Kingdom and visited my GP, Dr. H, who was not convinced that I was pregnant in May 2010.  I asked her to reduce my blood pressure medication as I was now pregnant, but she declined until there was confirmation that I was in fact pregnant.  At this stage, my symptoms of pregnancy persisted.  I had another appointment with Dr. H in September 2010 where a body examination was done and she referred me to Homerton Hospital for a scan.

6.  On 16 October 2010 I attended Homerton Hospital for a scan and it showed no pulse or heartbeat from the baby.  This came as a great shock to me, bearing in mind what I was told in Nigeria, that I was pregnant.  I kept up my line of communication with Dr. Chineri Emica Precious in Nigeria, who assured me that it was not unusual for the baby not to be seen on the scan.  Also, I was reassured by the testimonies of others who had had the treatment before (my sister and a friend).

7.  I returned to Nigeria in October 2010 to see Dr. Chineri Emica Precious who informed me, conversely to what I was told in England by my general practitioner and scan results, that I was pregnant and she continued to treat me with injections and one big medication.  I assumed that this continued treatment was in order to maintain the pregnancy.  I had no reason to doubt her sincerity or expertise in this regard.

8.  In November 2010, Pastor B at my church in London, like other people around me, including my husband, asked me if I was pregnant as he saw that my stomach was bloated as if I was pregnant and I had gained a substantial amount of weight.

23  She continued at paragraph 13:

“In December 2010 I went to Nigeria for the yearly crossing over programme at the headquarters of MFM and later went to Port Harcourt.

14.  Soon afterwards whilst in Nigeria, I noted that I was bleeding from my back passage.  I recalled that when I was carrying E my previous pregnancy, that the baby and I were bleeding.  However, in that prior instance, the bleeding was internal and this tragically led to E suffering her disability, as this was not detected on the scan.

15.  In January 2011 during what I perceived to be the birth of O, I recall a doctor inducing labour through intravenous drip and I experienced what was labour, a very traumatic delivery and a baby was presented to me covered in blood as would have been normal in a delivery room.  I felt all the natural manifestations of labour and delivery and my baby, O, was presented to me in the manner described.  Subsequently, when both the Metropolitan Police and the Applicant suggested a DNA test, I fully cooperated and was not in any way concerned as to the outcome as I knew I had given birth to O.  I had named her as was customary and obtained a birth certificate for her.”

24  Paragraph 19:

“Since 21 March when we were informed of the DNA results that suggested that we were not the biological parents of O and she was removed from us, my whole life has been shattered and it was as if we had suffered E’s bereavement all over again.  In short, I have been depressed and traumatised.  We have struggled to maintain any level of sanity as I am now convinced that I have been a victim of a very serious fraud by those who have exploited my vulnerability and infertility for their own financial gain.  I had paid a total of 1.3 million naira (just under £6,000) to this medical practitioner at this stage for the fertility treatment.  I enclose for the consideration of this court an article in The Vanguard, a Nigerian newspaper, that clearly sets out in detail the type of scam that I have been a victim of.

21.  I have cooperated fully with the police and the Applicant in the course of their investigations into this matter.  As a family, we coped fully with E’s serious disability and maintained our composure and dignity throughout.  The fact that we have been exploited in this way and the consequent investigation, albeit legitimate, has dragged on and has been devastating for us as a family.  I categorically deny that we have been involved in any child trafficking, except to say that this is a tragic case in which we have been a victim.”

25  That ends the quote from her statement. They obviously had in fact filed an earlier position statement, I think without any benefit of legal advice, on 11 April.  In that they said this.  It was a joint statement produced by both Mr. and Mrs. S.  I read from it because it is of crucial significance:

“O was not deliberately removed from her parents in Nigeria.  She was brought into this country as I was made to believe that I gave birth to her as a result of the fertility treatment that I embarked on from December 2009.  During the treatment I went through gradual stages of pregnancy and was made to believe in the delivery procedure, under which intravenous drip and drugs were used to induce labour, that I gave birth to O.  My experience of the treatment and the testimony of others who had previously undertook the treatment built a very strong belief in me that O was my biological daughter, until the DNA test results concluded otherwise.  The strong belief in the pregnancy and birth experience led to O’s birth registration.  All due processes were followed to obtain travel documents for her to be brought to the UK as our legitimate daughter without any doubt.

The above beliefs were also responsible for us being so adamant that O was our biological child before we had the DNA results.  We complied throughout with the investigation in good faith with every assurance that the DNA results would vindicate us.  However, it was the DNA results that caused us to see ourselves as victims of crime or error.”

26  They carry on in similar vein, concluding in this way at paragraph six:

“Regardless of the DNA results, we genuinely love O as we would love our own child.  S, our nephew, has lived with us for over 11 years and we care for him and love him as our own child.  We would be heartbroken if the court allowed O to be abandoned into the hands of the social services to navigate her way through the care system.”

 

 

If what she says is right, and the clinic sedated her and gave her medical treatment intended to make her believe that she was in labour, and then presented her with a baby, then her ‘crime’ is really to have believed the clinic rather than her GP who was saying that she wasn’t pregnant.  You may think that she was gullible, foolish, perhaps even stupid; but that’s a distance from deceit and complicity.

 

 

The story seems utterly fanciful, however. A fertility clinic that goes to all the trouble of trying to make women believe that they have given birth as a charade for what is actually a straightforward sale of a baby? However…

 

35  Could this be a true story or is it an elaborate piece of invention?  On the face of it, the court’s first obvious and natural reaction to this very far fetched tale is to be highly sceptical, but for one crucial piece of further evidence.  It is in the form of a lengthy cutting from a newspaper, the Port Harcourt Vanguard, for 11 September 2011.  This is also available in fact on the internet.  Under the headline, “Baby Factories: how pregnancies/deliveries are framed”: “Vanguard’s investigation reveals more baby factories.”  There  appears a two full page article carried out by an investigative journalist which describes in elaborate detail the process largely described to me by the mother.  I shall read two sections from the article.  I have already read the banner headlines about baby factories and it contains a number of black and white photographs.  These passages are to be found in the article:

“Our findings reveal that the unpublicised native maternity homes use illicit means to procure babies for childless couples on the payment of huge amounts of money ranging from N750,000 to N1 million, depending on the sex of the baby.  We gather that twins go for about N1.5 million or more.  The delivery date depends on the baby seekers.  While some opt for a nine month period, some go for a fast deal of one month or two, also depending on the availability of the baby from the sources.  Investigations reveal that for those who go for a nine month period a pregnancy would be framed and a delivery date given.  The delivery date can be postponed indiscriminately based on the availability of the baby.  Their patrons are desperate women ranging from high society women, clergymen and women who most times hide the arrangements from their husbands.  Most of these centres are found in …”

36  It mentions three towns including Port Harcourt.  Then under the heading, “How Pregnancy and Deliveries are Framed” it reads:

“Investigations reveal that these clinics administer certain substances on the patients that form a sort of tumour in the womb of the expectant mothers, making them believe they were pregnant.  Occasionally, a movement is caused in the belly making it look as if a baby is kicking.  The women are warned not to go to any hospital or undergo ultrasound or any sort of scan as they would lose the pregnancy or baby in the process.”

37  It goes on in similar vein and it contains this passage further on:

“Further investigations reveal that when it is time for delivery another substance is administered on the woman which gives a false impression of labour.  Part of the growing tumour will come out through the vagina and it is cut to discharge blood and make it look as if there was an actual delivery.  A baby is then sneaked in and made to cry.  The woman is also made to believe she has been delivered of a baby.  In Precious Ogbana’s case, she told the reporter that when she had one of the babies it was recorded to a friend’s cell phone but she deleted the video a few days later.  She regretted deleting the stuff, fearing her husband would not like it, especially if the video got to a third party, adding that she went into labour and gave birth to the kids.”

38  There are a number of case studies set out in the course of that lengthy, double page article.  Having seen that article, there cannot be any doubt at all that this far fetched story is rooted most solidly in reality and that this kind of practice is common in certain parts of Nigeria.  I have described the process as a baby exchange.

39 So there can be no dispute now that the mother was indeed a participant in this elaborate scam but, as I said at the outset, the central question remains and has to be answered: was she a knowing and willing participant? 

 

 

 

The Judge then had to grapple with that central question, and reached these conclusions

 

50 How do I analyse the evidence to arrive at a conclusion in this mysterious case?  The following factors have guided my decision:

51  The mother is an intelligent woman who teaches at an adult literary college in London.  She is a God fearing practising Christian, as is her husband, to whom lying is complete anathema.  This factor has to count for something even in these cynical days in which we live.

52  The mother gave evidence to me at great length over two days and I found her to be impressive and unshakeable in relation to all important matters.  In all important respects, her versions both in writing and to the police have remained consistent.  In short, incredible though it seemed to me at the outset, by the end I was driven to believe her account.

53  By the same token, I found the husband, a responsible man in regular employment, to be a patently honest witness.  I do not think for a moment he would have gone along with knowingly assisting his wife in participating in a deception on the court. 

54  Both the mother and her husband have cooperated fully and willingly with the inquiry once they realised the circumstances of the arrival of the child and once they realised they were suspicious and they realised that these suspicions needed to be allayed.  They willingly took part in the two DNA tests. 

55  When conducting a fact finding inquiry, particularly one as strange as this, often the most important guide is to be found in the presence or absence of so-called “smoking guns”.  That is to say, factors which point to or are either consistent with or entirely inconsistent with one or other side’s version of the possible truth.  In this case, there are factors which, in my judgment, point inexorably to the conclusion that the mother is most likely to be telling the truth.  What are these factors?

56  The fact that during 2010 she went on visiting her GP, firstly to find out if she was pregnant and then to check whether she was and whether there might have been a mistake.  I find it to be unthinkable that she would have returned to the GP if she had knowingly become involved in this scam and after she had received negative tests in England.  To do so could only sensitise the GP to the possibility of something untoward happening when the child was eventually produced to the doctor later.  But that is precisely what did happen because the GP of course had the chance to examine the mother in the months preceding the so-called birth.  In my judgment, the last thing this mother would have done is to go back to the clinic to persuade the doctor to arrange a scan when she could only have known it would reveal nothing.

57  By the same token, why was the mother going backwards and forwards to Nigeria and seeing the doctor if she knew the pregnancy was an invention?  She would merely have gone out there in December, around the time of her expected delivery, and collected the child.

58  By the same token, it is unthinkable as I find that the mother would have produced the baby to the GP within three days after returning to this country if she had known the circumstances of her removal from her natural mother and Nigeria were highly suspicious or possibly criminal.  She produced the child to her GP in all innocence, expecting the GP to be delighted to be proved wrong.  Miss Watson, having to overcome this telling point, says that she took a calculated risk.  That, if I may say so, is a gross understatement.  It would have been sheer lunacy.  As Mr. Paul points out, there were other much less risky ways of proceeding which would have hugely reduced the risk of detection which, were she part of the scam, she must at all times have feared.

59  Then there is the short video clip arranged by the mother.  If there had been anything untoward going on which the mother realised, the video would have been set up and stage managed in a way which supported her having given birth.  In fact, it does nothing of the kind.  It merely shows the mother writhing in agony and a child lying in the vicinity, still attached to a placenta.  There is in fact no sign or real attempt to link the baby with the mother.  There is no sign of blood on the mother or indeed any sign that she had just given birth.  It would have been the easiest thing in the world to have linked the baby more directly with the mother to make it look as if she had just delivered.  Similarly, if this had been an elaborate deception, the camera would have had pictures of her arriving at the clinic and of the mother holding the baby etc., immediately following the supposed birth.  The video evidence is certainly excellent evidence of the scam disclosed by the newspaper article, but in my judgment it points away from the mother’s involvement.

60  I also think it is highly likely that, if the mother knew what had happened but nevertheless wanted to take her new baby to the doctor, she would not have gone armed with the camera and the clip ready to show the doctor the pictures if challenged.  In fact, the mother did not do so.  She only produced the pictures (potentially her best evidence if she was being deceptive) in response to questioning from the police and not as her first trump card and without being asked, as one would have expected.

61 All the mother’s actions, in my judgment, both in this country and Nigeria, are consistent with her evidence that she had no idea she was involved in this strange scam, designed to put together unwanted children with desperate, childless parents.  Her complete desolation when confronted with the reality, as attested to by both the police and the Guardian, further in my judgment supports her credibility.

62 What are the findings that I make based on this assessment of the evidence?  Firstly, most of the primary facts are agreed and not challenged.  Secondly, the mother was in a highly suggestible state, especially following the death of her disabled daughter at the end of 2009.  She is also, as the Guardian points out, immersed in a Christian religious environment where miracles are not regarded as impossible.  Thirdly, I am totally satisfied on an examination of all the evidence that this mother had no idea she was taking part in bogus fertility treatment, much less an elaborate and well tried system for selling unwanted babies to desperate parents in exchange for very substantial sums of money.  Fourth, both she and her husband were hoodwinked and are innocent victims so far as their involvement in these matters is concerned.  They neither knowingly participated in the wrongful removal of the child from her natural mother nor in the wrongful importation of her into this country. 

63 The highest it can be put, as I find it, is that the mother unwittingly took part in an unorthodox adoption process surrounded by an elaborate piece of play acting. 

64 Fifth, and for the avoidance of doubt, I find nothing concerning so far about the mother’s mental health any more than the general practitioner does or did.  It is perfectly plain the mother now fully appreciates what was going on and what she has been involved in.

65 Sixthly, on the face of it, the mother from what I know seems a good and experienced mother who has brought up her nephew impeccably and looked after her very disabled child over a very long period until her death. 

 

 

The Judge then invited the Local Authority to reconsider their view of the case and specifically whether Mr and Mrs S could be considered as carers. They declined to do so and an Independent Social Work assessment was therefore commissioned.

 

The mainstream media seem, to me, to have reported this case as being that Mr and Mrs S got the child back, and not that they had won the right to an independent assessment of whether they should.

 

A fascinating case, and one that I hope will be unique, although as our world gets smaller, the chances of unscrupulous practices playing a part in UK care proceedings must increase.

I wish they all could be California girls

 

 Utter nonsense. How to construct your perfect wish if a genie comes along and offers you one wish.

 

Obviously, the genie will feel that he’s been locked up tight, for a century of lonely nights, but after you release him, and he grants you one wish, take care. I advise you not to lick your lips and blow kisses his way, because that don’t mean he’s going to give it away. Baby, Baby, baby.

 

Your obvious starting point will be a cheat.  Genies cannot grant wishes about wishes.  So you may think you are smart and beating the system by “I wish for ten more wishes”  or  “I wish for infinite wishes”  or  “I wish that all my wishes came true”

 

But those are all meta-wishes and cannot be granted. You will just irritate the genie, who finds this sort of thing tiresome in the extreme.

 

So, one wish, not allowed to be about wishes. 

 

Now, take care. A detailed study of genies has shown that they will attempt to construe your wish in a way  that you didn’t intend, being obtuse and/or ludicrously literal, and a way which candidly, and to put it bluntly  “f**ks you over”

 

You can see this in King Midas  (I wish for everything I touch to turn to gold. But he didn’t intend that to include food and people  – although technically, air touches his mouth on the way to his lungs, so he is lucky he didn’t asphyxiate fairly instantly. Yes, this is going to be THAT geeky, bail now if it is already too much),  the Five Children and It, or even more vividly and scarily, “The Monkey’s Paw”

 

[If you haven't read "The Monkey's Paw", I really would remedy that. It's really short, you can probably read it online for free, and it will give you the proper Fear.  In fact, here it is :-  http://gaslight.mtroyal.ca/mnkyspaw.htm.    It's okay, I'll wait.   Taps foot... looks at watch.. ah, you're back]

 

We were talking about how genies are legitimately allowed, whilst granting your wish, to interpret it in a way that makes you utterly miserable.

 

Let me give you an illustration. 

 

“I wish to be incredibly attractive to women”

 

 

(The genie is immediately thinking, “I can turn him into a diamond necklace, or a cute kitten, or I can make him a walking magnet, or I can make him genuinely irresistible to women but to all women including pensioners and women he wouldn’t find desirable and that they won’t take no for an answer”  and all of those options are available to the genie, who HAS to grant your wish, but has leeway to mess with you within the ambit of what you asked for, or omissions you made in being specific)

 

 

Another one

 

“I wish I had a billion pounds” 

 

(The genie is immediately thinking  along these lines – A billion pounds of.. what, exactly?  Or that you didn’t specify when, so can get it on your deathbed. You didn’t specify that it was legitimately yours, so you can have it and immediately get arrested for stealing it. Or the monkey paw route where you get the money, but by inheriting it from the savings and life insurance policies of everyone you know and love, all on the same day.   I told you to go and read it, at the top of the page, don’t complain about spoilers now.)

 

 

Or to take the Beach Boys lyric – of course any girl could be a California girl, simply by moving to California, so the genie can fulfil that without doing anything; OR he could imbue on every female in the country, nay the world,, a desire to move to California and become a “California girl”, probably wrecking the local infrastructure and irretrievably breaking the San Andreas fault, and sending their beloved State into the ocean.    [Note, my scientific underpinning of this is based entirely on Gene Hackman’s evil plot in the film Superman, and may not withstand any proper scientific rigorous testing]

 

There are now no girls in China, India, or Brazil, or anywhere else. This leaves the population of those places to riot, cease work  and  eventually die out, and there’s no production of any of the world’s vital resources, because every female living on the planet is in California, who will now have no chocolate, or coffee, or alcohol, or rice, or meat. Life in California will be crowded, and bereft of life’s essentials.  Everywhere else will be half-empty and bereft of life’s essentials.  Let us hope that none of the Beach Boys ever come across a genie in a bottle.  

 

So, how can you construct your one and only wish in such a way that you (a) get what you want, and (b) don’t get screwed by the genie being incredibly literal, or seeking a loophole or deliberately misconstruing your intention?

 

If a genie comes along and you get your once in a lifetime chance of a wish, you don’t want to blow it by wishing for something that will backfire on you or not deliver what you want, or end up being something really wimpy just so that you know it will happen without ill-consequence  (like  “I wish I had a really cold bottle of beer in my hands right now”)

 

Well, if you want to construct a binding clause with no way to weasel out of it, a lawyer is just the sort of person you want to talk to about it.  Looking for loopholes and absurdly literal interpretation of what a sentence could mean are the sort of thing that really float my boat. I could probably go into the genie business. I wish (!) that there were genies granting wishes and that  I had invented the Safe Wish Drafting business, as it is the sort of thing I could cheerfully do all day.

 

Sadly for me, someone has already come up with the concept of Open Source Wishing, where a bunch of like-minded people polish and hone wishes and look for loopholes that an evil genie (who is duty bound to grant wishes) would misuse, with a view to producing your perfect (and safe) wish, just in case.  Really, I’m not kidding.

 

http://homeonthestrange.com/phpBB2/viewforum.php?f=4&sid=ff22bddadb9da4dfbae7649b72b59777

 

They are interesting, in a weird sort of way, to just look at how detailed you would have to construct a Wish to make it work, but also you get into some really unusual tangents.  The generic ‘nice’ wish of world peace, gets you into some pretty dark areas about freedom of choice and Ludovico Technique about what sort of world we live in if people don’t have the ability to make horrible choices.

 

 

And the ‘wish for happiness’ one prompts all sorts of debates about what makes people happy, whether happiness can ever be achieved (when it is part of our nature to dream and desire and strive for the unattainable)

 

Anyway, here is the draft wish for finding the person of your dreams:-

 

”I wish to meet the person who will give me the most fulfilling, satisfying, and happiest sexual relationship in my life in a fashion that would be conducive to us having that relationship as soon as possible – someone who is:

a) Living and will not die until at least the moment of my own death,
b) Currently available to commit to a sexual and emotional relationship with me,
c) Physically attractive to me in this state and time,
d) Someone who would find me more physically and mentally attractive than either anyone else she currently knows or anyone else she would meet in the course of a relationship with me,
e) Someone who my friends and immediate family (or, alternatively, you could list a bunch of people whose judgement you trust) would currently deem acceptable for me to date once they knew the true history and background of that person,
f) Currently not suffering from any long- or short-term diseases or handicaps that would significantly disrupt our relationship,
g) Located in a place that I could move to.”

 

 

Have fun finding the loopholes. There are still plenty.  My immediate one is that without any of the stomach lurch of whether a person will love you back or whether they will keep loving you, or how you could make them happy – without their freedom of choice to stop loving you at any moment, is what you have here love, or is it slavery? I think that would nag away at you and corrupt the whole thing.  I would much rather that the woman of my dreams had a headache, than was compelled to frolic as a result of forces beyond their control.

 

 

Mine would be, by the way :-

 

 

I wish that I, at time of my choosing and for the duration of my choosing, could have the super powers and abilities of any fictional superhero I intentionally select, those powers manifesting themselves in the real world and under my full control,  without my  ever coming to any personal harm (physical, mental or emotional), deprivation of liberty  or inconvenience as a result, and for that to begin NOW and continue for as long as I desire it to continue.

 Some annoying people are going to want to give me a wide-berth when I am Superman, Spiderman and Wolverine all rolled into one. Snikt.

[I'm sure this ends with me heat-visioning my own foot off, somehow] 

And let’s end with a lovely bit of Steve Martin, back when he was funny.

 

 

 

 Steve Martin: If I had one wish that I could wish this holiday season, it would be that all the children to join hands and sing together in the spirit of harmony and peace.

 

 If I had two wishes I could make this holiday season, the first would be for all the children of the world to join hands and sing in the spirit of harmony and peace. And the second would be for 30 million dollars a month to be given to me, tax-free in a Swiss bank account.

 

You know, if I had three wishes I could make this holiday season, the first, of course, would be for all the children of the world to get together and sing, the second would be for the 30 million dollars every month to me, and the third would be for encompassing power over every living being in the entire universe.

 

And if I had four wishes that I could make this holiday season, the first would be the crap about the kids definitely, the second would be for the 30 million, the third would be for all the power, and the fourth would be to set aside one month each year to have an extended 31-day orgasm, to be brought out slowly by Rosanna Arquette and that model Paulina-somebody, I can’t think of her name. Of course my lovely wife can come too and she’s behind me one hundred percent here, I guarantee it.

 

Wait a minute, maybe the sex thing should be the first wish, so if I made that the first wish, because it could all go boom tomorrow, then what do you got, y’know? No, no, the kids, the kids singing would be great, that would be nice. But wait a minute, who am I kidding? They’re not going to be able to get all those kids together. I mean, the logistics of the thing is impossible, more trouble than it’s worth!

 

So — we reorganize! Here we go. First, the sex thing. We go with that. Second, the money. No, we got with the power second, then the money. And then the kids. Oh wait, oh jeez, I forgot about revenge against my enemies! Okay, I need revenge against all my enemies, they should die like pigs in hell! That would be my fourth wish.

 

And, of course, my fifth wish would be for all the children of the world to join hands and sing together in the spirit of harmony and peace. Thank you everybody and Merry Christmas.

Once you have eliminated the impossible

 

Is Sherlock Holmes’ maxim applicable to fact finding hearings? The Court of Appeal take a look

 

A (Children) [2012] EWCA Civ 1278

 

As all Holmes fans know, the Great Detective opined  “Once you have eliminated the impossible, whatever remains, however improbable, must be the truth”  *    [see footnote]

 

 

[Gratuitous Cumberbatch photo, for the female followers of this blog, including the Great Fiancee]

In this finding of fact hearing, involving a fatality to a child, the father, who ended up with the finding of fact being made against him, appealed in part on the basis that the Judge had approached this sort of formulation.

 

http://www.familylawweek.co.uk/site.aspx?i=ed102912

 

The Court had determined that the child had, on the balance of probabilities, suffered an injury.

 

It had then determined that the only 3 possible perpetrators were the mother, the father or an elder child ‘C’.   

 

The father claimed that what then happened was in effect that the Court ruled out mother and C as potential perpetrators and thus came to the conclusion that the father, being the remaining suspect must be the perpetrator, rather than carrying out the identical form of scrutiny.

 

(i.e, that had the Judge considered the order of suspects differently, and approached matters with a fresh eye, he might have ruled out father, then C, leaving mother; or any other sequence.  And that it just so happened that this order of events left father as ‘last man standing’. It was unfair to father to not have the same impartial eye testing whether he should be ruled out, and the burden effectively shifting to being for him to provide evidence why he WAS NOT the perpetrator)

 

 

It is probably fair that I give you now, Lady Justice Black’s concluding paragraph

 

23. I simply add this: that this is a case which we have considered very much on its own facts; nothing that I have said should be taken in any way to alter the established formulation of the law applicable to cases such as this. 

 

So perhaps the case is useless for anything other than determining the appeal that was before them, but I respectfully think that it is of interest because the precise forensic approach of how the Court approach the ‘whodunnit’ element of a finding of fact hearing, having established that something was done, and who the potential perpetrators are, is very important, and anything that adds to our pool of understanding as to the right or wrong way to go about it is therefore useful.

 

 

This is how the Court of Appeal record the Judge’s decision-making process

 

4. So this was a heavy trial for the judge, and it is manifest that all its concentration was upon the facts, the investigation of all relevant facts and the establishing on the balance of probabilities of the crucial facts.  That the law played no great part in the process is, I think, demonstrated by the fact that the judge deals with it in two short paragraphs.  In paragraph 28 he said:

“In these proceedings a party seeking a finding of fact bears the burden of proving it on the balance of probability: Re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35.  Accordingly, where I record facts or make findings, I am satisfied that they are more probable than not.”

5. In he following paragraph 29 he only added:

“Where a number of individuals might be responsible for a known injury, the test for whether it is established that a particular individual was involved is whether there is a real possibility they caused the injury: Re S-B Children [2009] UKSC 17.”

6. So, moving on from that early and brief direction, the judge explains himself essentially in paragraphs 170 and following under the subheading “Responsibility for B’s injuries”.  He considers first the position of B’s mother. He sets out in paragraph 170 under seven numbered paragraphs the matters that he was taking into account in reaching the conclusion that B was in good health when mother left the house and that he was injured in her absence. Having reached that conclusion it is not surprising that in paragraph 171 he said:

“I therefore find that M was not present when B was injured, and further that she does not know how the injuries occurred.”

7. In paragraph 172 he turned to consider the father’s position, saying:

“I turn to consider whether F’s explanation that C caused B’s injuries is credible.  If it is not, the inescapable conclusion is that they were caused by F.”

And then in paragraph 173 he set out what he described as being the combination of a large number of circumstances necessary for C to have injured B in the way that the father suggested.  There are 22 subparagraphs of such factors.

8. In paragraphs 174 and 175 he considered the father’s credibility generally as well as specifically, and he concluded that the father was an unconvincing witness.  However, in paragraph 176 he said:

“176. In assessing F’s evidence, I remind myself that although I disbelieve it, the consequence is not that he is inevitably responsible for the injuries.  Lies may be told for other reasons.  The burden of proving responsibility remains on those that allege it.”

9. In paragraph 177 he considered possible explanations for untruthfulness that would not be in any way probative of causation.  In paragraphs 178 and 179 he then states and explains his fundamental conclusion.  He said:

“178. My ultimate conclusion in relation to C is that there is no real possibility that he caused B’s injuries.  A possibility that is remote on the medical evidence alone is vanishingly improbable in the light of the evidence as a whole.  I reject F’s case.

179. I find that F caused B’s injuries.  I reach this conclusion by eliminating the only possible alternative and by rejecting F’s account.”

 

 

The father submits that paragraph 179 is effectively a reversal of proof, and placing the burden on the father to show that he was not the perpetrator, rather than on the Local Authority to prove to the requisite standard that he was.

 

 

The Court of Appeal considered that the argument was skilfully drawn, but rejected it nonetheless   (largely because of the way that the Judge at first instance had balanced matters)

 

10. Now Mr King’s principal criticism is of paragraph 172, which I have already cited.  He submits that this amounts to an implicit reversal of the burden of proof.  The submission is skilfully advanced and is certainly worthy of careful consideration, but it has to be taken in the context of the passage as a whole, all the paragraphs from 172 to 179, the relevant passages of which I have already cited.  It seems to me that what the judge was saying in paragraph 172 was that he had to consider whether the father’s explanation that C caused B’s injuries was a real possibility — was it plausible? — and that was certainly a permissible and indeed a sensible approach.

11. Mr King has submitted that essentially the judge has pinned the label of responsibility on the father by a process of elimination.  He has first eliminated the mother, then he has eliminated C, and therefore he has, as it were, reached the only remaining possible conclusion.  I see that that submission is also open to Mr King given that the judge has specifically said:

“I find that father caused B’s injuries. I have reached this conclusion by eliminating the only possible alternative.”

12. He might have put alternative into the plural but I do not think that that is fair to the judge overall.  He had to reach a realistic conclusion; he had to be as specific as the evidence permitted; and overall it seems to me that the conclusion was well supported by evidence and was acceptably reasoned.  Mr King has said that there was no medical evidence to force the judge’s conclusion and that there was no other evidence to force the judge’s conclusion, and that accordingly the judge should more safely have announced that there was a real possibility that the father committed the injury, but no more than a real possibility. 

13. That is essentially putting his primary submission in other words, and it does not lead me to doubt the conclusion that I have already expressed on his primary submission. 

14. It will be, I have no doubt, Peter Jackson J who conducts the second stage of this trial.  It may be that he will be persuaded to admit the police records that Mr King highlights.  In passing, I note that there seems as yet to be no explanation as to why they are belatedly produced.  That is something that requires no further speculation.  There can be no doubt at all that the kick injury inflicted by C on the carer is a subsequent development.  There can be no doubt at all on the authorities that the judge at the second trial is not only entitled but bound to have regard to that subsequent development.  Authority is equally clear that it is open to him to reconsider his earlier stated findings of fact, if he is persuaded that the subsequent development is sufficiently material.  With that observation I would dismiss this appeal.

 

It does seem to me, on the basis of that, that IF the Judge had approached it in the way father was suggesting of :-

 

  1. I have found that the child was injured
  2. I have found that this injury could only have been caused by M, F or C
  3. I have found that it could not have been caused by M
  4. I have found that it was not caused by C
  5. Therefore it was caused by F

 

(rather than 5 – “my analysis of the evidence given by F and the features of the case are such that I find F caused the injury”)

 

that this would have given rise to a successful appeal.

 

And therefore, the Holmes maxim DOESN’T apply to the law. The Court have to consider all of the various possibilities   (That it was M, that it was F, that it was C, that it is one of them but it is not possible to say whom, that it was one of two of them but that “X” is excluded)  and determine which is the correct finding, based on the evidence.

 

As we saw from Justice Mostyn’s decision earlier this year, http://suesspiciousminds.com/2012/05/04/a-county-council-v-m-and-f-2011/

   it is peculiarly lawful for the Court to examine the two possible explanations for the child’s injuries and to discount both as being inherently implausible and fall back on the burden of proof as being the determining factor.   The authority that gave rise to that, was of course, a shipping case. Shipping cases nearly always are at the bottom of any important legal principle  (that or runaway milk horses or pensioners consuming ginger ale)

 

[All of the principles in Re SB   http://www.familylawweek.co.uk/site.aspx?i=ed47645  still apply, of course – that it isn’t for the judge to dance on the head of a pin in trying to establish who caused the injury and if the evidence does not allow for a definitive finding, the Court should not exonerate one parent simply because another seems more likely. ]

 

i) “If the evidence is not such as to establish responsibility on the balance of probabilities it should nevertheless be such as to establish whether there is a real possibility that a particular person was involved. When looking at how best to protect the child and provide for his future, the judge will have to consider the strength of that possibility as part of the overall circumstances of the case”; ii) judges should avoid attributing the relative probability of who is responsible for harm where they are unable to identify a perpetrator and iii) when a perpetrator is identified there is a risk that the judge gets it wrong but that risk cannot be used to conclude that there is a risk to the child. However it was also

“Important not to exaggerate the extent of the problem. It only really arises in split hearings…… In a single hearing the judge will know what findings of fact have to be made to support his conclusions both as to the threshold and as to the future welfare of the child.”

 

 

 

 

* The Great Detective, when making this maxim, probably did not envisage just how improbable the improbable explanations for fictional crimes could become. My personal favourite, Harry Stephen Keeler, for example, managed to concoct an explanation for a murder that involved a strangler midget who disguises himself as a baby, and who descended in a portable personal helicopter to commit a murder in which a man was found dead in the middle of a field of fresh snow with only his own footprints leading to or from his body. 

 

http://home.williampoundstone.net/Keeler/Home.html 

 

I do heartily recommend Mr Keeler if you are a little jaded with traditional murder mysteries and want to glimpse what life would be like if you were somehow able to turn your brain to a totally different angle.

 

I am also reminded of the lovely Raymond Chandler anecdote, where in the midst of filming  “The Big Sleep”,  the director, Howard Hawks, telephoned him and frantically asked,  “Mr Chandler, I have a problem in the film. I simply can’t work out who killed the chauffeur”  and Chandler had to confess that he too had no idea either.  Read the book, it really is completely unresolved. Other than that, it is a flawless piece of writing, which dazzles on every page.

J’accuse .. no, I don’t… wait, yes I do (oh no you don’t)

 

A discussion of  Re W (Children) 2012 EWCA Civ 1307

 

 http://www.familylawweek.co.uk/site.aspx?i=ed102911

 

This appeal centres on whether, having made allegations and then subsequently consented to an order saying that findings in relation to them would not be pursued, a party can then resile from that and seek to reopen the findings.

 

An interesting appeal, arising from private law proceedings.  Within the course of the proceedings, a very detailed set of allegations was drawn up on behalf of the mother. These were very grave allegations indeed.

 

At a relatively early stage of the fact finding hearing, in August 2009, counsel for mother appears to have given the mother certain robust advice about the prospects of succeeding in proving such allegations.

 

Counsel for both parents asked to address the Judge in chambers, and taking appropriate precautions to ensure that both clients were aware and content with this and that the discussion was recorded, this took place.

 

5. Trying to summarise the discussion, it seems that mother’s counsel, acknowledging the standard of proof that was upon the mother and the allegations over many years on a monthly basis, said to the judge that it would be difficult to see how the court could make a positive finding or indeed a negative finding and the judge may therefore come to the conclusion she could not make a finding one way or the other.  She posed the question one has to ask, namely where that would take the court in the terms of the proceedings then before the court, which seemed to be concentrating on the father’s contact.  The judge acknowledged that, and there was therefore some discussion about the allegations set out in the Scott schedule.

6. Counsel for the mother then indicated to the judge that mother had expanded upon her complaints and was now also complaining about his behaviour to the children, though the only specific matter she could relay to the judge was an allegation that mother had seen father hitting the boy about the head.  She explained that her instructing solicitor was making further inquiries and would detail those further allegations as soon as possible during the course of that day, because the judge made it perfectly plain that she would deal with any further allegations there and then without delaying the case any further.

7. So those further inquiries were made and they are now set out on a further schedule, which recites with regard to the children that the father would hit the boy about the head almost on a daily basis and call him stupid; that he would punish the boy; that he did not treat the children equally; and fourthly that the father would touch the daughter inappropriately, not in a father-daughter manner but more intimately than expected by a father. As I read the transcript, of the proceedings I am not sure that the judge was made aware of that fourth allegation.

8. The judge, that is to say HHJ Black — pragmatically and sensibly in my view — enquired what the true nature of the dispute was going to be.  And if and insofar as it was a matter of contact, it was important, she considered, to understand the mother’s case.  She said:

“Now if that was her case so she was saying ‘No contact ever because I emotionally will never be able to deal with this’ which I would have a great deal of sympathy with, I think probably all of us would have a great deal of sympathy with and be on her side.  So this was a complete no contact case, I can understand that …

But I cannot understand…Even with the new allegations, what I will always want to know as a start point is…she is the mother of these children…  If she is coming in to say, notwithstanding all of this, ‘This is what I think is the way safe contact for my children can continue’ short term, long term et cetera, et cetera, that is how I would be informed.  And I would like you firstly to find out, whatever happens, there will be contact starting as soon as it can be sorted out.  There is no reason why it shouldn’t be.”

9. So the judge was asking instructions to be taken about whether the mother was saying no contact at all or whether she was accepting that there should be contact, which would progress if it was shown to be successful and the case was therefore adjourned for mother to be advised.

10. Counsel then took instructions and returned to the judge and, in a long passage which I need not read in full, counsel for the mother made it plain as follows:

“My client’s position is this.  That notwithstanding any of the allegations that she still generally believes are true that she would like the children to see their father in a controlled environment and if he is able to behave appropriately and have a father, child relationship with them she would wish contact to progress.”

And she then set out how that would happen. Counsel told the judge:

“She understands that that would mean drawing a line in the sand in respect of her allegations both the ones she has detailed in her statements to the court and those she has raised today in respect of dad’s conduct towards the children specifically.”

And I omit further words:

“She is very clear she wants the children to enjoy their relationship with their father.”

I omit more passages:

“Your Honour, as I say, my client does understand that this will be drawing a line under her allegations.  She is not withdrawing them in the sense that she does not accept they are fabricated and if I could say that does not strike us as a situation where this woman genuinely believes what she is saying. Whether that is objectively how events have occurred is a different matter and I know that it is a point that troubles my learned friend.”

11. So, in the light of that discussion, the judge was being asked not to proceed with the hearing before her and left it to counsel to prepare a draft order, which had recitals giving full effect to the understanding they had reached. 

 

 

There’s then what I consider to be a very neat bit of drafting, to dance on the head of a pin, and reflect that the allegations were not being pursued or relied upon in relation to the issues of contact and residence before the Court, but neither was there any acceptance on behalf of either party as to whether or not they were true.

UPON HEARING COUNSEL for each of the parties. 

AND UPON the Respondent Mother not seeking to pursue positive findings in respect of the allegations raised by her in the Scott Schedule and in the list here attached.  It being noted by the court that the allegations made on the list were first made at Court today. 

AND UPON the Respondent Mother understanding that notwithstanding that fact that she is not withdrawing her allegations, she will not be able to put forward specific allegations as reason(s) for a bar against contact or future progression of contact between the children and the Applicant Father or in relation to residence and the Mother understanding that matters will proceed on the basis that [I think it should be] no negative findings have been made against the Father. 

AND UPON the Court recording that no findings of fact have been made against the Applicant Father and that the Applicant Father continues to deny all allegations made against him by the Respondent Mother.

AND UPON the Court recording that as no allegations have been proved against the Applicant Father, no professional assessment of him should be on the basis of the concerns against him by the Mother in the Scott Schedule and list attached herewith, and any assessment should proceed on the basis of events as described by the Mother as having not occurred.”

 

 

Sadly for counsel for the mother, she was no longer representing the mother by the time of a hearing on February 2012  (perhaps due to diary clash, perhaps – as can be seen by mother’s complaints, more a clash of personality than diary), and mother instructed her subsequent counsel to seek to revive the allegations.  This is what she says in her witness statement for the February 2012 hearing.

 

12.  I know it sounds dramatic but I would use the word tyrannical to describe [counsel's] approach.  I was very scared and I do not believe she gave me balanced advice.

13.  [She] suggested that she should go and see what the judge had to say and I agreed.  I recall she came back and indicated that the judge had said that she would have difficulty in making a positive or negative finding but that we could do things by way of recital.  I think at that point that [she] was doing all that she could to dissuade me from testifying and although she did not say it I was left in no doubt she thought I was wasting the court’s time.  I felt bullied and I had lost all confidence.”

17. It may be that that allegation should be contrasted with how she had earlier approached the hearing before HHJ Black.  In a witness statement of 22 December 2009, that is to say some four months after the hearing before HHJ Black, she said only this:

“I am aware I am no longer allowed to bring these matters into the Children Proceedings, but can confirm I am still on the waiting list to see a counsellor from the Portsmouth Rape Crisis Team but I will not let the past, in respect of myself, have any weight to my views and the children’s views of contact with their father.”

In the same witness statement she dealt with the harm that the children could suffer and she said:

“I am aware this cannot be brought up again in these proceedings.”

18. There are certainly no mention of bullying or of her not fully understanding the nature of the compromise there had been effected.  She put in her own witness statement in January 2012 when she was without legal advice and there she said:

“When the fact-finding hearing came up I had an alternative barrister, who advised me that the hearing would not achieve anything, as the Judge viewed the evidence and had said that even with testimony from all the parties involved, she would find it very difficult to make a decision either way.  It was not made clear to me at the time that the fact finding hearing it was necessary for the facts of the case to go on record, whichever way the Judge ruled.  I felt, and still feel that some elements are central to the case, and [father's] ability to parent (such as the fact that he abused me and raped me throughout our marriage, and that I was in fact under the age of consent when he first attacked me)”

Again, there is not a complaint of being put under pressure by counsel through bullying nor of a failure fully to understand the compromise she had reached.

The Judge on 12th February refused to reopen the allegations and to undo the order made, and this is the order that was appealed.

 

Counsel for mother in the appeal put her case skilfully (and as the Court of Appeal describe, valiantly) on the basis that the allegations are so serious that they cannot sensibly be ignored and a determination of them central to the issues in the case.

 

The Court of Appeal declined to overturn the case management decision of 12th February 2012, saying that it was not only not plainly wrong but that was plainly right.

 

24. I, of course, entirely agree that it is in the interests of justice and in the interests of the children that the truth be known where the truth can be established, but in all of these cases the court is required by Section 1 of the Act to have regard, among other matters, to delay which is inimical to the well-being of the children.  In this case there is nearly three years of delay or two-and-a-half years of delay and, as HHJ Marston rightly observed, matters had moved on considerably since that hearing.  Matters had moved on because mother had suffered a further breakdown in her mental health.  She was unable to care for the children.  They were placed with father.  They were subject to supervision by the social services department, who were well aware of the fact that these allegations had never been tried out one way or the other, but being alive to that fact nonetheless came to the very firm conclusion, as I have recited from the report of the social worker, that the best interests of the children lay with their remaining with their father.

25. The appeal has to be, in my judgment, an appeal against, in effect, a case management decision by HHJ Marston as to whether or not this matter should be re-opened.  It may be a matter of debate as to whether the more appropriate course would have been to have appealed.  This is not a case where the court is being asked to consider fresh evidence or different evidence from that which had been presented to the court which had undertaken the exercise.  Here, in effect, the gist of the application is to set aside HHJ Black’s order and to have a rehearing. That, one may think, was better a matter for appeal rather than to go back to the same or a different county court judge, but I need not express a concluded view on technical issues of that sort.

26. Treating this as an exercise of discretion, Ms Earley attacks it as being plainly wrong.  In my judgment it was plainly right. The judge was fully entitled to look at delay, to look at the way of the mother’s allegations of bullying had gradually grown as the case progressed, and to have regard to the fact that the mother was perfectly happy to leave these children in the father’s care unsupervised and unsupported for weekends and over holiday periods.  She consented to all of those orders.  She was aware of the effect of the compromise in August when she agreed those orders.  She did not then complain.  She complained only when the case had changed and she was now the one seeking residence from father, who had the backing of the social services in retaining the children in his care. 

27. To re-open the matter would undoubtedly cause further delay; the effect on the boy who suffers sadly from a problem of his ill health would be severe; and the judge, taking all of those matters into account, was fully entitled to say that it was far too late to re-open matters.  He was correct, moreover, to take the view that it would have been disproportionate, because one has to ask what prospect was there on the face of the papers before the court of mother succeeding in establishing the vague allegations she was relying on, allegations over many years with no corroboration apart from a broken tooth, which could have been explained as easily on the father’s account as on her account.  There was little medical evidence, it seems, to corroborate her account.  She was on her own admission inconsistent in her explanations of misconduct, in her reports to the psychiatric team who were advising her.  She was inconsistent about the events of March 2011 when she suffered an injury, as she at first put it, in the course of sexual activity, which was to say the least unusual.

28. Taking a view as to the prospects of her success, they could not be put as anything like reasonable.  On the contrary, they appear, as the judge concluded, to be weak.  What was the benefit to the children?  In my judgment not a great deal.  The allegations against the mother do not appear to have impacted upon his treatment of the children, who as I have repeatedly said are thriving in his care. 

29. For all those reasons, I conclude the judge was right to draw the line where he did.  I would therefore dismiss this appeal.

 

 

Much of this obviously turns on its facts – the huge passage of time between the allegations being ‘left on the file’ and the attempt to resurrect, the lack of credibility given later evidence filed that mother had been ‘bullied into this by counsel’ and the inconsistencies in mother’s allegations, but there are the wider points that it is legitimate for a Court to conclude a finding of fact hearing with an agreed order on the basis set out in August 2009, and that the parties need to be advised with care that reopening such findings laid to rest may be extraordinarily difficult if not impossible, and that they should be sure about that before consenting to such an order.

 

 

The importance of being formal

 

 

A discussion of the private law case of Re K (A child) 2012 EWCA Civ 1306.

 

 

The judgment of the Court of Appeal can be found here

 

http://www.familylawweek.co.uk/site.aspx?i=ed102441

 

 

Normally I start with – the facts of this case are quite straightforward, but in this one, they aren’t.

 

There are four children, A, S, G and B.  The children were all the biological children of one woman, the mother.  A and S were the children of the father.  G and B were, the mother says, fathered by two different men who had raped her, years apart.

 

A, S, G and B all lived with the father, who although not being the biological parent of G and B was a father figure to them.

 

A younger child from another relationship, D, lived with the mother.

 

There were serious allegations that mother had emotionally mistreated the children, and the section 7 report was clearly in favour of the children residing with the father, and indeed had gone further in saying that if there was a shift in residence, the Local Authority would commence care proceedings to protect the children from the risk they considered mother to pose.

 

The appeal arose as a result of a review hearing in residence and contact dispute.  At the review hearing, set up by a previous directions hearing ordering the author of the section 7 report to attend and be cross-examined, the positions of the parties were this :-

 

Mother invited the Court to appoint a Guardian and a child psychologist, so that the issues in relation to the children’s wishes and feelings could be explored.

 

Father invited the Court to make final Residence Orders and conclude the case.

 

 

An odd feature of this appeal was that the tape machine had not been working, and thus neither the judgment, nor the hearing itself had been recorded.  Therefore, any criticisms I make of those representing mother are with the caveat that the matters which seem to be omissions might well have been dealt with and just not recorded. And they arise from the criticisms made by the Court of Appeal.

 

The Judge dismissed the applications for a Guardian or a child psychologist to be appointed, made Residence Orders and made an order for contact which was  “as directed by the Local Authority”, making it plain that the orders were not “set in stone” and that mother could bring a fresh application if things were not working.

 

The mother appealed on these grounds :-

 

 

  1. That the decision to refuse a child psychologist or a Guardian was plainly wrong.
  2. That the Judge had effectively abdicated decision-making about frequency and duration of contact to the Local Authority
  3. That he had made a final order at a review hearing and had not heard evidence from either parent (although he had heard evidence from the social worker)
  4. That the allegations made against mother, and the cross-allegations of domestic violence were not determined at a finding of fact hearing.

 

 

 

 

The Court of Appeal rejected the mother’s arguments about instruction of a Guardian or child psychologist, considering the judge’s reasoning on this to be solid and it being a valid case management decision.

 

The lead judgment was delivered by Lady Justice Black.

 

35. I can deal robustly and swiftly with the question of the appointment of a guardian and/or a psychologist.  I am not persuaded by the mother’s arguments in this respect.  The judge had the benefit of input from the local authority, who had been very much involved in the case over a period of time.  They were not abandoning the case but were intending to continue their attempts to persuade G to see his mother and would continue to enable B to do so.  It was certainly open to the judge to take the view that it was difficult to see what more another expert could offer and that this was not the moment to take the course of involving another person in the children’s lives.  Furthermore, appointing a guardian or instructing a psychologist would inevitably take time and he was entitled to put into the balance in this respect that the children needed to be settled and to return to normality.  Protracted court proceedings would not help with that.

 

The Court of Appeal also considered the Judge’s position on contact to be acceptable.

 

36. I am not persuaded by the mother’s argument that the judge abdicated responsibility for solving the contact issue either.  He determined that contact should be taking place and he made the decision to continue to entrust the furtherance of it to social services because he thought that G would come round.  He made clear that this was not a final decision and that the mother could bring the matter back to court if it did not progress.  Keeping the proceedings open for a further year and expressly providing for liberty to apply, which was not necessary in law and must therefore have been included as a deliberate message that the decision was not as the judge said “set in stone”, underlined this.  The judge was entitled to take the view that this was the course that was in G’s best interests for the moment.

 

 

But it was the summary disposal of the case that concerned them.

 

The Court of Appeal note that from the notes of the hearing that they had been supplied with, those representing the mother had focussed on their application for adjournment and had not addressed the Court specifically on the mother giving evidence, or the need for a finding of fact hearing, or the reasons not to make final orders in accordance with father’s case.

 

[As indicated earlier, it may be that all of those things were done, but it was not recorded on the notes of hearing that the Court of Appeal were supplied with. I don’t want to cast aspersions on those representing mother, as that would be unfair given that I wasn’t there, and haven’t seen a full transcript]

 

40. I can well understand how it was that the judge took the approach that he did, that is not hearing from the parents.  He was anxious, rightly, that the proceedings should not be drawn out any longer, and no doubt he was influenced by the weight of the evidence in support of the factual case put forward by the father and supported by the local authority’s investigations, and also by the practical difficulties in the way of the mother’s application for residence.  Time had run out for the hearing, almost certainly because of the pressure of work in the court and it was already late in the day, and perhaps most importantly the judge was not asked by counsel for the mother to hear evidence from her or to permit cross-examination of the father.  Counsel for the mother seems to have been taken by surprise by the judge’s final determination of matters.  He was, as I have said, concentrating on persuading the judge that the matter should be adjourned for the intervention of a guardian or a psychological report and he did not expect that the judge would not only dismiss that application but also proceed to make final orders. 

 41. There are certain situations in which it is correct for a court to deal with applications summarily or on very limited evidence, but if that is to occur it is normally necessary for there to be some argument as to whether that is an appropriate course and a determination by the judge that it is for reasons which he articulates. 

42. In this case the course that was taken does not seem to have been the subject of such a process.  I am driven to the view, in all the circumstances, that the procedure adopted by the judge was rather too pragmatic and resulted in a hearing that was not entirely fair to the mother. 

 

 

So the Appeal was allowed.  Between the initial decision and the appeal hearing, there were some extraordinary developments. That is a massive understatement.

 

 

43. A few days ago the father’s solicitors wrote to the mother’s solicitors saying that contact with B, the only child who had been seeing the mother without problems, was going to be suspended.  This was said to be because of a series of incidents which had given rise to concern about B’s safety and the father’s. They included the following.  A man who called himself Stuart had turned up at B’s school claiming to be B’s father.  A man who gave a different name had turned up at the contact centre wanting to join in contact with B.  A third incident involved a man trying to snatch B from the father on a tube station platform. 

44. The mother’s solicitors replied to the father’s solicitors saying that in mid-July, when at Homebase, the mother had recognised the man who raped her and had approached him and told him that B had been born as a result of the rape.  The man (Stuart), had subsequently attended at B’s school and at the contact centre.  Stuart told the mother that the father was behind the rape, having instructed Stuart to beat the mother up and rape her, and said that if he did not do so he would be paid a visit in relation to money that he owed the father for drugs and could not afford to pay. 

45. Both parties concede that, in the light of this new and presently untested material and the suspension of contact with B, the case will have to return to the county court judge in any event now and that findings will have to be made about factual allegations

 Now that will be an interesting finding of fact hearing. Given that as we know, the Court findings are binary (a thing either is proved to have happened, or it is proved to have not happened; there is no ‘not proven’ or ‘not sure’)  either the father recruited and paid a man to rape the mother, or the mother has made the most scandalous and false allegations about the father. Either eventuality has huge implications for the children and their relationship with both parents. It is hard to see how they could go on to have a meaningful and full relationship with both parents after the determination of which of these two possibilities is true.

It is worth noting that the two other Appeal Court judges, whilst granting the appeal, expressed quite a bit of sympathy with the trial judge, and the Court as a whole communicated the need for all court hearings to be properly set up with clear and recorded ambit for the hearing , and for the formalities to be observed.

 

50. I would just add one short postscript.  Family practitioners and judges have become adept at dealing with situations that are continually developing, which are not straightforward, and which require speedy decisions for which there is often insufficient court time.  Conscious that children await their decisions they respond valiantly by getting on with the job without insisting on too many formalities.  However, it is important that everyone understands the issues that are to be determined at each hearing and addresses the form that the hearing will take, ensuring that the process is robust enough, not too robust. The mother in this case had not filed a formal application for residence and contact and it would have assisted in an understanding of the matters that had to be determined had she done so.  Indeed, it may be helpful generally if rather greater attention is paid to the formalities in family proceedings. 

51. Secondly, a word about review hearings.  Hearings at which there is to be a “review” of a case are not at all uncommon, but they do carry a risk that there is a misunderstanding as to what will be addressed by the court.  It is important that in advance of such a hearing, there is as much clarity as possible about its form and ambit, the issues that will be addressed, whether evidence is contemplated and whether the orders that result will be case management orders or orders of substance and, if the latter, whether interim or final

 

 

And

 

Lord Justice Aikens

 

53. I would just wish to add two comments, however.  First, I can well understand why in the circumstances the judge took the robust and pragmatic course that he did.  In particular I would note that the judge’s course should be seen against the fact that the mother, represented by counsel, did not apply for the mother to be heard or for the father to be cross-examined; she did not submit that there should be an interim residence order and did not seek an adjournment.

54. My second comment is this. I entirely agree with what my Lady has said about the need for requisite formalities in family cases.  If those formalities had been observed in this case, it is possible, to put it no higher, that the current position could have been avoided

 

 

I think it would be unlikely that someone appealing in the future on the grounds that a Judge had not heard from their client would be likely to succeed if they hadn’t made representations before the Court that their client should give evidence, for example.

 

No matter how confident one might be that your application for an adjournment will be granted, it is absolutely necessary to make sure that you deal with the counter applications that are being made, to ensure that the Court know that you resist those and the reasons why.  Likewise, if a finding of fact hearing is sought, a schedule of allegations ought to be drawn up and lodged and a formal request made for such a determination.

 

 

The comments about review hearings are, I think, very sensible. The term is so widely drawn that it covers everything from a quick look to see that everything is on track, to interlocutory arguments about experts and evidence, to “well, it might be possible to conclude the case”  and it is better to record clearly on the face of the order what the issues to be reviewed are, and what is envisaged might be achieved at such a hearing.

Are you trying to tempt me, because I come from the land of plenty?

A discussion of the South Australian Parliamentary apology for forced adoptions.

[I have edited this, due to stupidity on my part on not realising that the Australian definition of ‘forced adoption’ is different from that used by critics of our UK system. It nagged away at me, so I looked at it more carefully and cleaned this up. Apologies to anyone who has had to read it twice, and potentially been given a misdirection by the first version, which was rubbish. My apology is heartfelt, but not as moving as the Australian apology that I'm blogging about]

The Australian term ‘forced adoption’ refers to the policy in the 60s and 70s of compulsory and wholesale removal of babies and infants from Aboriginal mothers (*and I am corrected by a helpful commenter, also from white mothers, both in massive numbers)  and placement with more middle class  families.  It is vital to realise that this policy was not only lawful, but came about because professionals who believed this was in the best interests of the children had persuaded legislators that it was right.  The value of the apology is therefore chiefly about recognising that what can be accepted good practice on the State’s role in the lives of children can in later years seem not only catastrophically wrong, but actually abusive.

The Australian ‘forced adoption’ , although much more pernicious and racially dubious, is more akin I think to our UK Victorian values whereby unmarried mothers either gave up their babies or were committed to madhouses.

I know that this is a different country, and I don’t like the term ‘forced adoptions’  (just as, I suspect, Ian Josephs of the Forced Adoption website doesn’t like an awful lot of the terms that are used in Court proceedings, like ‘family justice’, so fair play)

I’m aware that Australia’s level of adoption is about half that of the UK, and much much lower than the US.  I suspect that adoption remains an emotive topic in Australia, and some of the language used in the apology can really be embraced by the critics of our current system.

But Australia doesn’t seem all that different to us (apart from the being tanned and good at sports thing).  We have a common language, and a fairly similar country. So when they condemn the practice of adopting children against the wishes of the parents, it bears a bit more listening to than when you hear that some country that we share no cultural overlaps with have done it.

I’m not in a position to argue whether the UK approach is right, or the Australian approach is right, but if two countries with fairly similar outlooks on life and one presumes broadly similar social problems, can reach such markedly different conclusions, then there’s a genuine debate to be had.

  In any event, it highlights the point that what is culturally acceptable and considered good practice may appear abhorrent to a later generation, and we should have an eye on the fact that dogma can be wrong.  No doubt our critics will say that such an apology may come in the future, and is long overdue. Who am I to say that they are wrong? If you had asked the Australian legislators and professionals whether history would judge them harshly, I’m sure they would have robustly denied this as a possibility.

This bit is from the Premier,  John Wetherill

“These adoption practices were the product of multiple failures. They failed to meet a basic standard, whether or not they were in accordance with the law at the time. They reflected a failure to apply a simple test of human conduct – a test which we should all try to apply to ourselves every day. They reflected a failure to ask what has become a famous question: how would I feel if this were done to me? For those failures, and for everything they led to, we are sorry…”

 

“We apologise for the lies, the fear, the silence, the deceptions. We apologise for the lack of respect, the disbelief, the grief, the trauma and loss. We offer this unreserved apology not just as an act of atonement but as an expression of open-hearted admiration and support for those to whom it is owed. I commend the motion to the house.”

And this bit is the speech given by their equivalent of Ed Milliband, but don’t hold that against him, he seems like a nice chap.  You can read that HERE

http://www.johngardnermp.com.au/parliament/speeches/951-18-july-2012-forced-adoption-apology.html

but I’m going to publish the whole thing, because it is (A) interesting and (B) it took me forever to find it, so at least publishing it makes it slightly easier to find for someone else.

Mr GARDNER (Morialta) (11:36):Today our galleries are full to overflowing. It is sadly ironic, perhaps, that on a day when we gather here as a special sitting of this house to acknowledge the past adoption practices that have caused such distress, it is because of another overhang of the 19th and 20th centuries—the asbestos in the House of Assembly chamber—that we are denied the opportunity to have that chamber available, where so many more people might have had the opportunity to see this directly.I welcome all those mothers, sons, daughters, family members and other people who have been affected to our galleries today. I acknowledge also those in other rooms of the parliament who are watching this live and those people who are watching the web stream. We are grateful that that has been made available on this occasion. Many more people, of course, are watching through that online.I recognise the contributions made by the Premier, the minister, and the Leader of the Opposition on behalf of the Liberal Party in particular, but also in seconding the motion to the parliament. This afternoon, members of the Legislative Council will have an opportunity to comment on the apology, and other members of the house in due course.It is an important day for the South Australian community. It is an important day for this parliament and the institutions that this parliament is responsible for. Most importantly, of course, it is an important day for those affected by past adoption practices: the mothers, the sons and the daughters, and their families, so many of whom are here bearing witness today. Madam Speaker, with your leave, I seek leave to directly address my opening remarks to them.

To the mothers who had their babies taken away from them, we know that an apology cannot return a child who was taken for so many years. The loss of a son or daughter taken cannot be restored by a simply apology. Words alone cannot heal the hurt that you have suffered over decades. We hope, though, that they may provide some comfort. You may at least walk from this building feeling vindicated that your community understands that you did not freely give up your child and that your children and your community understand that you never gave up on your child either.

The coercion that led to your child’s adoption, whether it was overt or whether it was subtle, was brutal and wrong. It was inappropriate, it was unethical, it may have been illegal, and today this parliament makes a statement that it is condemned. It is condemned by this parliament on behalf of the institution itself and on behalf of the South Australian community.

On behalf of the parliament, which shares in the responsibility for these actions, we are sorry. In this day and age, children are put up for adoption in South Australia only when there is genuinely no opportunity for family to stay together and we work very hard to ensure that the very few adoptive parents who have this opportunity are everything that they might be; but in our history we have not always been so virtuous.

To the adoptees, to the sons and daughters who were taken at birth, I imagine that your experiences in life have been varied and diverse. Many of you may have been adopted into loving families who did their best for you at every turn. Some of you were not so fortunate, and your negative experiences make this apology all the more important.

Whatever the nature of your experience growing up, you share an understanding, a shared experience, a common bond; only you can truly understand what it is like to go through life for years—decades even—knowing that there is a missing piece. What was done to you, what was taken from you, the denial of a mother’s love and the kinship of your blood brothers and sisters, was wrong, and, on behalf of this parliament, which shares in the responsibility for these actions, we are sorry.

While the centrepiece of this apology is an acceptance and an expression of sorrow for the denial of informed consent when children were taken from mothers at birth, its terms are broad, and with good reason. I commend the government for the framing of this motion. We are apologising for a wide range of practices that have caused hurt and distress. We are apologising for a range of practices that have led to a varied set of experiences.

My own experience was to grow up knowing a beautiful, loving big sister. She was adopted with love by our father and her mother. She has done well in life. She has been successful in her career. She has the most beautiful, charming and caring daughter that any of you here are ever likely to meet. However, what I could not have understood growing up was her sense that there was a missing piece in her life. Nearly 30 years later, she discovered that she had been separated at birth from her twin brother who now lived across the country. Last night she wrote to me on Facebook, in a sign of the times, with her thoughts on what we are doing today. She said:

It is such an important day for all adoptees, their adopted families and their mothers that gave up their babies so many years ago. Tomorrow—

this was written last night—

is a day to reflect on the past. I have been one of the lucky ones who have found both my twin brother…and also been able to tell our birth mother that we do not blame her for what has happened in the past and that we look forward to the future as brother and sister. Thank you for your support in this.

Despite not knowing each other for nearly the first 30 years of their lives, they have a bond of iron that stretches from Perth to Brisbane.

Twins were separated at birth all over the world, just as they were in South Australia, but that does not make it right. That does not make it acceptable. For that, and for so many other practices undertaken in our community by our government and non-government institutions with the endorsement of the parliaments of the day, either tacitly or overtly, we are sorry.

Members of parliament on both sides over the last several months in particular, but for a number of years before, have heard so many stories from mothers and adoptees about things that have happened to their families: stories of mothers prevented from seeing their child during and after childbirth; stories of mums hearing their babies’ cries and wanting to hold them but being denied; stories of mums who could not hear their babies’ cries and wanting to find out why but who were held down and denied the opportunity; stories of mothers drugged to reduce their resistance to the coercion and drugged to dry up their milk.

In originally moving this motion encouraging the government to undertake this apology on 29 March, I said that in addition to the lack of financial support provided to unwed mothers there were also cases where they were subjected to grooming by those around them and pressure, including from state institutions. Moved from their community into the confines of a home, women were told that adoption was the right thing to do and the best thing for the child. Women had the details of their pregnancy and the future of their child concealed, while alternatives to adoption and information on potential financial assistance was often withheld. Relinquishing a child for adoption was often a traumatic process, and mothers have detailed their accounts to us and to the Senate inquiry, and the minister, the Premier and the Leader of the Opposition have detailed some of those accounts today.

In many cases consent was surrendered under duress, others were denied the right to revoke consent and some had the right to consent withheld altogether. There is no excuse that it is based on the understanding, the morality, of the time. There were people at the time who were saying that these practices were wrong. There is record of that. There was no Christian morality in what was going on there. I have had calls recently to be reminded of the Ten Commandments in relation to another matter, and I can tell you that commandment 4 is, ‘Honour thy father and thy mother.’ These children, these adoptees, were denied the opportunity to do that. Commandment 7 is, ‘Thou shall not steal.’ These children were stolen. There was no morality in this.

The value of an apology is important. It is a moment of healing, reconciliation and opportunity for the parliament to demonstrate to those who are hurt that we have respect for you and that you are vindicated—those who have felt hurt all these years. When we as individuals going about our business commit a wrong we apologise, and when an institution commits a wrong its representatives must apologise, and we do so today.

We follow in the steps of the first apology of this nature in Australia undertaken on 9 June 2009 by the Royal Brisbane and Women’s Hospital, the Western Australian parliament on 19 October 2010, a number of other non-government institutions and churches that have done so since then, the Senate inquiry reporting in February (and I look forward to further activity at a federal level), the support of the Liberal party room, the Greens, the Labor party room, the government and bipartisan support in this house.

It is a time for healing and reconciliation, and we applaud those who have had the courage to come forward and to contribute to this apology. I conclude by reflecting the words of the Premier earlier:

This South Australian parliament recognises that the lives of many members of the South Australian community have been adversely affected by adoption practices which have caused deep distress and hurt, especially for mothers and their sons and daughters, who are now adults.

We recognise that past adoption practices have profoundly affected the lives of not only these people but also fathers, grandparents, siblings, partners and other family members.

We accept with profound sorrow that many mothers did not give informed consent to the adoption of their children.

To those mothers who were denied the opportunity to love and care for their children, we are deeply sorry.

We recognise that practices of our past mean that there are some members of our community who remain disconnected from their families of origin.

To [the adoptees] who were denied the opportunity to be loved and cared for by their families of origin, we are deeply sorry.

To those people who were disbelieved for so long, we hear you now; we acknowledge your pain, and we offer you our unreserved and sincere regret and sorrow for those injustices.

To all those hurt, we say sorry.

Honourable members: Hear, hear!

I’ve got twenty-six weeks to go, twenty six weeks to go (or have I?)

 

This from the Association of Lawyers for Children, reporting on Ryder J  and MacFarlane LJ at the NAGALRO conference recently.  This is short, but there’s a lot of content in there.

 

On Monday 15th October 2012, the NAGALRO conference was addressed by Mr Justice Ryder and Lord Justice McFarlane.

Practitioners from different parts of the country raised concerns about courts rigidly implementing the 26 week timetable. One child care lawyer asked Mr Justice Ryder if he was aware that in the experience of many lawyers, the 26 weeks requirement had been written “on tablets of stone” – even if it led to a denial of justice for children and parents. Ryder J responded that the 26 weeks was not written in stone, that it was aspirational, and that in his view it may be achieved in two years’ time.

Both he and McFarlane LJ were very clear that there was “no missive from on high”, and no direction given to impose 26 weeks. The family modernisation programme did not have the status of a practice direction. Ryder J went on to observe that early data being collected from courts showed that the 26 week timetable was only achievable in about 30% of cases.

 

I had this debate fairly early on with the Legal Advisors in my area, when I was aware that their new computer system was making them fill in explanations of why a case was taking longer than 26 weeks and that there was no legal basis yet for making case management decisions around a 26 week timetable rather than a 40 week timetable.  My fear was obviously that they would decline an appropriate expert assessment that took the case from say 25 weeks to 30. 

 

I will be interested to see what happens when the first such case management decision made in the County Court goes up to the Court of Appeal. I’m sure that there have been some made on these grounds. I’ve certainly seen orders that reflect that  “this case has not been possible to conclude within 26 weeks because…’

 

And I think their 30% figure is probably about right.  What we don’t yet know, and I’ve blogged about it in the past, is how many of the decisions we take at 26 weeks when this comes in, are going to be right.  Where they are been over-optimistic, we will know, because the case will come back to Court. Where they have been over-pessimistic, we will never know because the Placement Order will be made and we know already how hard they are to revoke for a parent.

Last night a Re J saved my life… (I am so, so sorry)

 I could not resist, once it came into my mind. And those of you with a classical education are muttering, that the shabby pun doesn’t even work if you pronounce it “Ray J”  – so a double apologies to the Brothers of Boris.  

 

A discussion of the decision of the Court of Appeal in Re J (A child) 2012, and where the bright line falls in a Judge allowing a case to be put and curtailing cross-examination that they aren’t finding helpful.

 

The case can be found here:- http://www.bailii.org/ew/cases/EWCA/Civ/2012/1231.html

It is, sadly, once again, one of those private law cases that have gone on for nine years, without very much being resolved in any of that time.

 

I was counting the number of different judges that had dealt with interlocutory hearings, and reached ten.

It is little wonder, with such lack of judicial continuity, that the scale of the litigation and the need to grip it and reach a proper final conclusion wriggles away.

 

The point of appeal is interesting – the father’s case was in effect, that as we so often see, the pace of movement and progress on contact is dictated by the mother, who makes a series of objections that are never resolved in litigation but the case inches forward, bit by bit, always at the pace the mother is able to get away with. [I am not saying that this happens in all cases, or even a lot of cases, but I am certainly familiar with it happening in some. To avoid sexism, it is the person who has day to day care who tends to take this approach, I don’t think it is gender specific per se]

On cross-examining the mother about her various shifts in position and historical objections to contact – with a view to establishing that her current position was unreasonable, the father’s counsel was stopped by the Judge.

 

25. Realistically, if I may say so, Ms Thain did not press the first of the father’s two complaints on this part of his appeal. The key point, which she understandably put at the forefront of her submissions, was that the Recorder wrongly limited the ambit of the factual investigation upon which, as she would have it, Ms Holmes properly wished to embark in her cross-examination of the mother.

26. The matter arose in this way. In her application filed in October 2011 the mother, as we have seen, was opposed to anything other than supervised contact. By the time of the hearing in March 2011 the mother was expressing herself as being “happy” with unsupervised contact: this was the word she used (Transcript p 46) in answer to questions from the Recorder. Indeed, it seemed from her answers to the Recorder (see Transcript p 51) that she had no objection in principle to overnight contact. When Ms Holmes tried to put this change in her stance to the mother (Transcript p 61) she was stopped by the Recorder (Transcript p 62): “Do not answer this question … I say do not answer it because I do not see where it is going.”

When Ms Holmes tried to explain, the Recorder broke in: “do you really want the witness to rake over all her earlier concerns and worries?”

27. Ms Holmes persisted: “Your Honour the problem is … that repeatedly what the mother does is she makes allegations that stops contact, she then comes to court and makes … concessions in court that lead to a small step forward. The point I’m making is … that if we are going to have a stable regime of contact… that is going to last I think we need to get to the bottom of what the problems are because otherwise the worry the father has is we go away from here, two months down the line all the same allegations, and we come back to court again and we’re back to where we were, square one.”

The Recorder responded: “Well I think you will find that the court, at least this court, will want to move forward rather than to linger … I have to approach the case as it is today, the witness has said, and I am sure your client would want to move forward from where it is today rather than, as it were, have a kneejerk reaction … to kick it back to the order of District Judge Chandler in 2008.”

Ms Holmes then made a very pertinent point (Transcript p 63): “But Your Honour the reality is … that what she is proposing is that she dictates the way in which it moves forward. That she is saying it should move forward in this particular way only … when we have never actually established why the previous arrangements were wrong.”

She added: “But we’re now in a situation where the mother is determining that there should be a vast reduction from that level of contact. I’m trying to get to the bottom of why she feels that that is necessary.”

The Recorder then made his position very clear (Transcript p 62): “Well let me reassure you, you are not going to gain any mileage from this line of cross-examination and I am interested in looking forward and with that in mind do you have any further questions?”

28. Ms Holmes soldiered on for a while. As the short adjournment approached the Recorder said this (Transcript p 68): “I am going to curtail your cross-examination unless you want to investigate what would be more acceptable to [mother] otherwise we shall move straight to your client.”

Ms Holmes made clear (Transcript p 69) that: “if I am not able to explore [the allegations being made by the mother] then it does hamper my ability to be able to put my client’s case.” The Recorder was unmoved: “Well that may be but it seems to me we are where we are”.

29. In his judgment the Recorder acknowledged (Transcript para [3]) that he had not permitted cross-examination, as he put it, “going back into the mists of time”. He explained why: “it seemed to me … and it still seems to me, that the proper starting point for the hearing today is today.”

30. The point made by Ms Holmes in her skeleton argument and elaborated by Ms Thain in her oral submissions is simple and compelling. The Recorder concentrated on how things might move forward without questioning, or allowing counsel to question, how or why the current state of affairs had come about and whether the mother’s reasons for unilaterally varying the previous court order were justified. This, it is said, was particularly alarming given what Dr Little and Ms Coatalen had said in their earlier reports – material suggesting that there could be a pattern to the mother’s behaviour requiring investigation of the kind the Recorder refused to permit. In short, it is said, by restricting cross-examination of the mother the Recorder ensured that it would be impossible for him to carry out the task required of him and denied the father a fair hearing.

If I may say, I  very much like the cut of Ms Holmes’ jib here.

The Court of Appeal, unsurprisingly, took a dim view of the Judge’s view that the past was of no interest to him in making decisions about the future.

31. In my judgment the father’s appeal must be allowed on this ground alone.

32. The point is really quite short and simple. Of course the Recorder was right in saying that one had to look to the future: after all, his task was to determine J’s future living arrangements. And of course, in one sense, the Recorder was right to look at how matters stood on the day of the hearing: after all, things were as they were. But his error – and in my judgment he here fell into plain and obvious error – was in rejecting Ms Holmes’ entirely justified desire to explore the crucial question of why it was that things were as they were at the date of the hearing. The investigation – the cross-examination – that Ms Holmes wished to undertake was not something she wished to pursue Micawber-like in the speculative hope, absent any reason to believe so, that something might turn up. On the contrary, and as she explained to the Recorder, there were at least two things she wished to explore, and which in my judgment cried out for investigation: first, why the mother’s attitude had changed between October 2011 and March 2012; second, and even more important, why the arrangements agreed in January 2008 had not worked out and why the mother believed they needed to be changed.

 

33. The Recorder may have been right in doubting the utility of an investigation “back into the mists of time”, but this was not what Ms Holmes was suggesting and it was no answer to the need for a more focused investigation of the kind she wanted to undertake. As my analysis of the litigation shows, there was a very clear point in the past which was the obvious initial starting point for such an investigation: the order made by District Judge Chandler on 7 January 2008. Two things about that order are striking: first, it was made against the background of the concerning matters identified and considered by Dr Little and Ms Coatalen, and taking into account Ms Coatalen’s recommendations; second, it was an order made by consent and moreover, as the order itself makes clear, on an occasion when the mother was represented by counsel. Now of course in a case such as this a consent order does not have the same status as a consent order made in ordinary civil proceedings, but it was nevertheless entirely understandable that Ms Holmes should wish to probe with the mother why she no longer saw the order she had agreed to as being appropriate. Moreover, given what Dr Little and Ms Coatalen had said, Ms Holmes had every justification for wishing to explore whether the explanation for the mother’s change of view since January 2008 lay in those matters which had caused Dr Little and Ms Coatalen concern rather than in the explanations now being offered by the mother.

34. Whether it would have been appropriate for Ms Holmes to seek to push the investigation farther back into the past – even assuming she would have wanted to – was, I should add, not a matter calling for a ruling at the outset. It was a matter to be considered, if the need arose, in the light of how the preceding cross-examination had gone.

35. Of course, and even in a family case, a judge should stop irrelevant or time-wasting cross-examination. But a judge should always bear in mind that, however carefully he has read the papers beforehand, counsel is likely to have a better grasp of the inner forensic realities of the case. And a judge does well to think twice if, as here, his intervention is met by counsel standing her ground and carefully explaining why she wishes to cross-examine in a particular way, especially if, as here, counsel’s reasons have obviously been carefully considered and are not just ‘off-the-cuff’. Ms Holmes is to be congratulated for doing her duty, politely but firmly standing her ground and telling the Recorder plainly that his ruling was preventing her putting her client’s case. It is a pity that the Recorder did not, even at that point, see any reason to change his mind.

36. In my judgment, the effect of this was indeed, as submitted to us, to disable the Recorder from carrying out the task required of him and to deny the father a fair hearing. But I go further. To deny the father a fair hearing and a proper opportunity to put his case was also, of course, to deny J a fair hearing. And for the reasons given by McFarlane LJ it may also have meant that the mother’s case was not properly considered.

37. There is no way in which we can remedy things except by allowing the appeal and directing a re-trial at which those matters which the Recorder refused to consider can be properly investigated. In the circumstances the re-trial must be in front of a different judge.

 

The telling point here is that father’s counsel was able to set out the purpose of her cross-examination and that it had a relevant and pertinent aim and intention, and was not just a string of questions in the hope that something good might come out of it. Judges wishing to curtail cross-examination will need, as a result, to hear what underpins the questions; and counsel faced with potentially irascible tribunals will need to have at their fingertips an explanation of the strategic thrust of the topic and why it goes to the live issues in the case. [If they are not able to produce an answer to that readily, they perhaps shouldn’t be embarking on that line of questioning…]

A tapestry of justice

 

A discussion of London Borough of Sutton and Gray 2012   – in which the High Court determined that an earlier finding of fact that a father had shaken a child, causing injuries (and for which father went to prison) was wrong and had been in effect a miscarriage of justice. 

 

The children had been placed with a relative (fortunately) who cared for them under Special Guardianship Orders. Had they been instead, adopted, then the Court would have been faced with the same issue as in Webster, that children had been wrongly removed and adopted, but that such a step cannot be unpicked.  The LA had been seeking a Placement Order for the younger child.

 

 

The Judge in this case, Mrs Justice Hogg, dealt with the case in a very measured and compassionate way – the other judgment, which I don’t include, which deals with the aftermath of this finding of fact and the reconciliation of the family is moving in the extreme.

 

 

[I am very grateful to Ms Troy who was junior counsel for the children in alerting me that this case was forthcoming and to watch for it.  Ms Troy is a very able advocate, a thoroughly decent person and someone blessed with good taste in football; an all-round good egg. The title is a malapropism from a gentleman who left Court and informed myself and counsel that this had been “a tapestry of justice”]

 

The judgment is here:-

 

http://www.bailii.org/ew/cases/EWHC/Fam/2012/2604.html

 

 

You will notice the highly unusual step of the Court giving the full names of those involved, rather than anonymising them. That’s a marker of how important it is for this family to be exonerated, and the likelihood that there will be further media involvement – I note that journalists were present.

 

I would point out in this case, that the miscarriage is not a result of bungling or bad faith on anyone’s part,  nor crookedness, nor incompetence, nor overly dogmatic experts. It just reflects what is becoming increasingly understood – that in complex medical cases involving injuries to children, sometimes our best working diagnosis on the balance of probabilities, can still be wrong.  As the Judge says late on, with reference to Mrs Justice Bracewell – in effect the Judge has to make the best conclusions they can from the evidence as it is presented, but being aware that today’s certainties can be tomorrow’s grey areas.

 

In a case such as this, we can see the stark impact of that on the family. It would not be an overstatement to say that they have been torn apart by these circumstances.

 

  1. From a very early stage the spectre of Non Accidental Injury was raised to explain Ellie’s collapse and the findings of intracranial and retinal bleedings. The parents, in particular the father, was unable to give a history of an accident or other explanation as to why she had suddenly become limp and in a collapsed state. The various tests performed did not reveal any medical explanation. Suspicion therefore arose that Ellie’s condition was a result of an inflicted injury. The fact she had been injured previously added to the suspicions. The Local Authority and police were informed of the position.
  1. As a result the parents were arrested on suspicion of causing grievous bodily harm to Ellie and interviewed by the police on 6 March 2007. Both denied causing injury to Ellie on or about 15 February, and have continued to do so ever since.
  1. In the meanwhile the Local Authority decided to issue care proceedings in respect of Ellie in which a care order was sought on the basis that she had suffered an inflicted head injury and burns whilst in the care of her parents.
  1. The application was issued on 5 March 2007 in the Croydon Family Proceedings Court. The first Interim Care Order in respect of Ellie was made on 15 March 2007, and thereafter renewed on a regular basis. On that date the proceedings were also transferred to the Croydon county Court.
  1. The fact-finding hearing took place in front of HHJ Atkins culminating in his Judgment dated 29 January 2008, in which he made findings against the father in that he:

(i) caused the burns on 7 February 2007 to Ellie deliberately or recklessly or negligently;

(ii) caused the head and eye injuries and the consequences sustained by Ellie on 15 February 2007;

(iii) the mother failed to protect Ellie by leaving her in the father’s sole care on 15 February.

  1. On 28 April 2008 the Learned Judge made further findings against the parents that:

(i) neither had accepted his Judgment and findings on 29 January 2008;

(ii) neither had been open and honest about the extent of their relationship, that “it has been more extensive than they said”;

(iii) both had intimidated and made various specific threats towards the maternal grandparents;

(iv) and the Learned Judge ruled the mother out as a long-term carer for Ellie.

  1. On 14 August 2008 the Learned Judge made the Special Guardianship Order to the maternal grandparents and the contact orders for the parents.
  1. The police charged the father with causing grievous bodily harm to Ellie on 15 February 2007 contrary to S.20 of the Offences against the Person Act 1861 and with cruelty contrary to S.1 of the Children and Young Persons Act 1933.
  1. On 24 March 2009 after a 4 week trial at Croydon Crown Court the father was convicted on both counts, and by majority verdict on the charge under S.20 and sentenced to concurrent terms of 18 months and 1 month imprisonment.
  1. Isabella was born on 7 September 2009 while the father was in prison.

 

 

It can easily be seen, that in relation to paragraph 45, those findings made that the parents had not accepted the finding of fact hearings are the only thing they could have done, and to criticise them for it is now evidently unfair.  Given that it was not true, how could they do anything other than continue to deny it?

But of course, the Court was proceeding on what was understood to be right at the time   [and from a legal point of view, what the Court FOUND to have happened at the hearing in January 2008 WAS what happened; although we now know that in reality, it was not what happened at all]

 

  1. The Injuries Ellie received
  1. Ellie collapsed in the father’s home. She suffered brain dysfunction or encephalopathy. She sustained subdural and retinal haemorrhages.
  1. Those three types of injuries are often referred to as The Triad and considered as a significant pointer towards a diagnosis of non-accidental head injury, particularly as in this case where there are no other signs, symptoms or marks of injury on the child. In this respect I am excluding the burns.
  1. It must not be assumed that because it seems ‘The Triad’ is present that it automatically and necessarily leads to a diagnosis of non-accidental head injury.
  1. Before concluding that The Triad exists and that a finding of non-accidental head injury is justified the Court must consider and examine the evidence in respect of each injury, its diagnosis, and its causative event(s) with care. It must also consider the clinical presentation of the child and the evidence of the parents, carer or other relevant witnesses.
  1. The findings in every case must depend on the specific individual facts to that case.
  1. At the end of the day it is always possible for a Judge to rule that the cause of an injury remains unknown. As Mr Justice Hedley said in Re R. 2011 EWHC 1715:

“In my Judgment, a conclusion of unknown aetiology in respect of an infant represents neither professional nor forensic failure. It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer non-accidental injury merely from the absence of any other understood mechanism.

Maybe it simply represents a general acknowledgement that we are fearfully and wonderfully made.”

 

 

I suspect, that this is a phrase, as it is both resonant and skilfully constructed, that we will see again and again  “We are fearfully and wonderfully made”

 

The Judge analysed the evidence in relation to each element of the ‘triad’  – those classic symptoms which suggest that the child has been the victim of a shaking injury.

 

  1. My Conclusions
  1. The conclusion I draw from the evidence of all three ophthalmologists are:

(a) This is an unusual case;

(b) It is unlikely that the injuries to the eyes were (i) birth related or (ii) caused by the seizures suffered by Ellie in hospital.

(c) The causative event(s) probably occurred shortly before Ellie’s admission to hospital;

(d) Ellie’s rapid and complete recovery was “remarkable” given the apparent severity of the haemorrhages when first seen;

(e) By just looking into the eye it is not possible to identify the cause of haemorrhaging;

(f) The haemorrhages do not have the hallmarks of a shaking injury, but such an injury cannot be excluded. In the event it was a shaking injury the severity of the force would be at the lower end of the spectrum;

(g) An airway obstruction giving rise to a sharp increase in intra cranial pressure could be an explanation for the haemorrhages, and would fit into the scenario resulting in a rapid and complete recovery without any residual damage;

(h) All three were prepared to consider an explanation other than that of shaking. The two experts were also specifically questioned about the possibility of an airway obstruction being the root cause as suggested by Professor Fleming. Both accepted the possibility;

(i) None were prepared to say on the balance of probabilities the injuries seen in Ellie’s eyes were caused by a shaking or inflicted mechanism. Mr Gregson and Professor Taylor were prepared to say they “did not know” or “could not be certain” what caused the injuries and “sat on the fence” when asked whether there was an innocent explanation or non-accidental explanation;

(j) The ophthalmic evidence is only one part of the picture, a piece of the jigsaw which is before the Court

 

 

 

  1. The conclusions I draw from the ENT doctors are as follows:

(i) All the doctors accepted that Ellie had abnormalities: the cyst, the cleft and laryngomalacia. They also accepted that there were indications she suffered from reflux and the cleft could contribute to possible aspiration of the gastric products.

(ii) They accepted that she had intermittent stridor, noisy breathing indicating an airway obstruction, which could have been caused by the cyst, and/or the laryngomalacia and positioning of the head, but that it was mild and there was no evidence that it was a moderate or severe obstruction.

(iii) None were aware of a link between airway obstruction whether severe or not and intracranial haemorrhages either in personal experience or in medical literature.

(iv) Mr Joseph alone indicated that a sudden reflux could cause a spasm and a closure of the airway which would be sudden and silent, but producing a floppy child.

(v) None of the doctors had examined or treated a child with the three physical abnormalities, nor had they read about such a case, even without the additional complication of reflux.

(vi) They agreed she was an unusual child

 

 

 

  1. The conclusions I draw from the radiological/neuroradiological evidence are as follows:-

(i) Any fluid seen in the subdural space is an abnormality and cause for concern. It has a pathological cause.

(ii) There are abnormalities seen on the scans and there was broad agreement as to what is visible. The differences lie in the interpretations; what the abnormalities represented;

(iii) There were darker areas of attenuation over the frontal areas and convexities containing small areas of brighter attenuation:

(a) It is agreed the small bright areas represent acute blood;

(b) The darker areas could either be:

(i) Chronic subdural haemorrhage, possible dating back to Ellie’s delivery; or

(ii) Acute traumatic effusions being cerebro-spinal fluid having leaked through damage to the arachnoid;

(iv) Acute blood is seen as brighter attenuation up to 7 to 10 days after bleeding;

(v) Chronic bleeds are seen as darker attenuation and are recognised between 2 to 3 weeks after the bleed. An upper age limited is not possible to assess from the scans;

(vi) Birth related subdural haemorrhages do occur, particularly after a Ventouse delivery. They are asymmetrical and usually resolve/disappear by 4 weeks: some may remain longer;

(vii) New bleeds creating acute subdural haemorrhages require a force which is beyond that of every day handling. An observer would know it was excessive and inappropriate and likely to cause injury to a child;

(viii) Re-bleeds are possible into chronic subdural haemorrhages either around damaged bridging veins or from membranes within the haemorrhages. Lesser force is required to trigger a re-bleed.

(ix) Subdural haemorrhages in themselves do not cause brain injury: but are markers of injury.

(x) Ellie suffered from encephalopathy, dysfunction of the brain which caused her collapse and presentation to hospital;

(xi) There was no evidence of hypoxic-ischaemic damage in the brain, but that did not exclude such injury being present, but not visible and thus very mild;

(xii) Ellie appears to have made a complete recovery from the neurological point of view;

(xiii) There was no evidence on the scans of scalp swelling, or skull fractures or other visible injury to the head. (I leave aside the injuries to the eyes).

(xiv) Whether there were re-bleeds into chronic subdural haemorrhages or an acute traumatic effusion there needed to be an incident of trauma: the degree of force required for such trauma depended upon whether it was a re-bleed or a bleed de novo;

(xv) The traumatic event would have occurred before her presentation to hospital, and most likely shortly, if not immediately before her collapse;

(xvi) The traumatic event could be one involving a shaking and/or impact, or if only enough to trigger a re-bleed a minor force or even the alleged bumpy buggy ride;

(xvii) In Dr Stoodley’s opinion the trauma sufficient to trigger re-bleed’s would not account for the acute bleeding at the back of the head and in the posterior fossa nor the encephalopathy.

 

 

  1. The conclusions to draw from the evidence of Mr Richards and Mr Jayamohan are:

(i) The two neurosurgeons were in broad agreement with the findings on the scans by the neuroradiologists. Like them Mr Richards and Mr Jayamahon could not agree as to the interpretation of the darker attenuation in the frontal areas. They both agreed there was fresh blood within the darker areas and at the back of the head and in the posterior fossa.

(ii) They agreed that an explanation was required for that fresh blood, and the blood at the back of the head and in the posterior fossa could not be accounted for by a re-bleed or movement between compartments and thus a lesser force. They agreed that the most likely explanation was that of trauma.

(iii) They also agreed that Ellie had suffered some brain dysfunction shortly before her presentation to hospital for which there was no obvious answer: the force required for a re-bleed would not suffice.

(iv) They were of the overall view that the encephalopathy and trauma occurred at about the same time and could have been caused by the same event.

(v) Both were presented with Professor Fleming’s evidence and proposition that Ellie suffered an airway obstruction causing cessation of breathing. In her struggle to breathe there was a sharp rise in intracranial pressure which caused her to collapse. They were both prepared to accept this as a possible cause for the brain dysfunction.

(vi) They were also both prepared to accept that the father unintentionally inflicted injury to Ellie in his panic to help her. Neither could say from the scans that the trauma Ellie sustained was accidental or non-accidental in motive. That was for the Court to decide.

(vii) Both acknowledged that the injuries could have been sustained as a result of an unknown cause.

 

 

 

A significant issue was the detection of a cyst in the child’s throat, with the mechanism being that the cyst had caused breathing difficulties, which in turned caused the child to enter into a fit, which caused the subdural haematoma and the retinal haemorrhaging.  This had potentially been compounded by the child travelling in a car seat, which if the child had (as in this case) weak neck muscles the head can tip forward and block the airway.

 

 

The Court was assisted by the paediatric overview from Dr Fleming

 

  1. Sometimes in cases of alleged abusively injured children a paediatric ‘overview’ adds little to the overall medical evidence. In this case Professor Fleming with his great interest and experience in airway obstruction and near life-threatening events in children was able to look at this case and its history in the light of recent medical thinking and with a very objective eye.
  1. He was cautious, fully aware that there is much to be learnt in medical science particularly with reference to life-threatening events in infants, and the many aspects of their physiology:

“The medical professionals are sometimes arrogant in thinking we know the answers, but our understanding is changing rapidly at present. There are things we know about now that we did not know about 3 or 4 years ago. That is why I am conscious that despite all the investigations we can do in children who have had such life-threatening episodes we don’t actually find an answer as to what’s caused them. Not finding an answer is not to me the same as saying somebody must have done it”.

  1. If I may say, wise comments from a very experienced practitioner and one of which doctors and lawyers alike should take heed.

 

 

 

 

And the Judge then pulled all of this together, and an analysis of the parents evidence.

 

  1. 15 February
  1. I turn now to the 15 February. Should I make the finding sought that the father caused Ellie to suffer a non-accidental head injury by doing something, a shake, a shake with impact or other mechanism in a brief loss of temper or control?
  1. Do I accept the father’s evidence that something silently happened to her before in panic he scooped her out of the car seat?
  1. Do I accept that his actions of scooping her up, putting her onto the bed inadvertently caused her some injury, but only after she had collapsed?
  1. The father’s description of Ellie’s collapse, appearance and floppiness are descriptions of an encephalopathy or brain dysfunction.
  1. Her presentation to hospital and clinical observations are those seen typically in an infant who is suffering from an encephalopathic illness.
  1. It is accepted that the illness could have either an innocent explanation or a non-accidental one.
  1. The investigations undertaken have shown that she was not suffering from any illness or other disorder and unless there was an unknown cause, not impossible, the doctors effectively excluded an illness or disorder.
  1. The CT and MRI scans reveal subdural collections in the frontal area, and at the back of the head and in the posterior fossa. The frontal collections contain acute blood, and there is acute blood at the rear of the head. There is a dispute as between the neuroradiologists and neurosurgeons as to what the frontal collections represent; there is no dispute as to the presence of acute blood in the various areas. There is no dispute that the acute blood was caused by trauma, the exact nature of the mechanism and force required is disputed, subject to the individuals’ interpretations.
  1. The important blood to consider is that at the back of the head and in the posterior fossa and the possible mechanisms and forces required to cause it.
  1. Otherwise the neuroradiologists and neurosurgeons agree that on the scans there was no other evidence of hypoxic-ischaemic damage or injury to brain, and no evidence of an impact to the skull or scalp. The radiology revealed no other injury to Ellie’s body and other than the burns there were no other marks or bruises on Ellie.
  1. There were retinal haemorrhages present which were not typical of a shaking injury and which required explanation.
  1. Ellie was an unusual child with three abnormalities in the laryngeal area. The cyst and the cleft are rare features, the laryngomalacia more common. That combination with the cyst could have caused her intermittent stridor. No doctor appearing before me had ever encountered a child with all three abnormalities present.
  1. She also suffered from reflux.
  1. There was strong evidence from Professor Fleming that Ellie could have suffered from airway obstruction, either as a result of laryngo spasm triggered by reflux, or by her head dropping forward whilst asleep in her car seat. Either way she could have collapsed through an inability to breathe and consequential lack of oxygen. Either would give rise to rapid changes in intra thoracic and intra-cranial pressure which in turn could have caused the retinal haemorrhages.
  1. The experts, the neurosurgeons in particular and the ophthalmologists were able to accept this hypothesis as possible.
  1. Professor Fleming was not so certain about the acute blood at the rear of the head, and I felt the other evidence that indicated a trauma of some form was required to cause it was stronger.
  1. The neurosurgeons accepted that a swift arc like movement from the car seat and a bang onto the bed following a collapse induced by an airway obstruction was a possible explanation for the presence of the acute blood both at the back and in the frontal regions. Even Dr Stoodley who preferred an overall inflicted shaking causation could accept it as a possibility but an unlikely one.
  1. On the medical evidence alone there is no strong pointer that the injuries Ellie sustained were inflicted through a loss of control or temper by a perpetrator shortly before her collapse.
  1. I go further. On the medical evidence alone I think the Local Authority has difficulties. There are too many pointers which question a conclusion of inflicted injury. There is a strong pointer indicating an innocent explanation for the collapse, being the airway obstruction as propounded by Professor Fleming and accepted by the neurosurgeons as possible.
  1. The Local Authority has to prove its case. In my view on the medical evidence alone I do not think that it has established on the balance of probabilities that the injuries Ellie sustained were non-accidental in origin. There is too much strong evidence flowing the other way. I do not make the finding sought by the Local Authority that she was a victim of an abusive head injury.
  1. Where does that leave me? Am I in a position to take the matter further, or merely leave it as a case of no find of fact against the father?
  1. In fairness to all I should try to go further. Ellie and Isabella when they grown up need to know with as much clarity as possible what happened to Ellie in February 2007 and why they were separated from their parents while still infants.
  1. The parents have suffered enormous loss as a result of the findings. If I can exonerate them from wrongdoing in February 2007, the father in particular, I should do so. This family, all three generations, have suffered as a result of the findings made in January 2008. The grandparents’ planned quiet retirement was invaded by their granddaughter. It has been their pleasure and enjoyment to bring her up, but it has been at an enormous physical and emotional cost. Neither is in the first flush of youth or best of health. It could not have been easy for them to change gear and take on a toddler. They have done well. Ellie is thriving in their care. Without them she would have been adopted, but the additional cost is they have lost touch with their own daughter, and she with her siblings. The family circle has been shattered. I hope the damage can be repaired, and if it be possible any work might be assisted by all the adults knowing what I think probably happened to Ellie that February evening.
  1. I therefore ask myself: Do I accept the father’s account of the events of that early evening, that all was peace and calm before Ellie for some reason collapsed; and do I accept his now not clear account of his reaction to seeing his daughter lifeless?
  1. There is corroboration from the parents themselves describing intermittent noisy breathing and episodes of intense paleness. Professor Fleming accepts these could be symptoms of the underlying, and then unknown laryngeal abnormalities.
  1. There is corroboration from Dan the flat mate that all was quiet and he did not know Ellie was there until summoned by the father.
  1. There is corroboration from the 999 tape and transcript that the father was panicking.
  1. The incident took place more than 5 years ago. The father was panicking and frightened for his daughter and I accept it is likely in those circumstances he may not now recall the exact details of what he did after the collapse or what he said on the tape. Even nearer the time given his panicky state of mind he may not have recalled the precise details. Such corroborative evidence as is available supports his account.
  1. It is inherently unlikely that a ‘silent’ something happened which caused the father to silently lose control and silently inflict an injury upon Ellie. He is not someone who reacts silently, even in court when he disagreed with a piece of evidence he was muttering and overheard by others. If there had been an event which had caused him to lose his temper or control he would not have been silent, he would have been heard by Dan. There would have been some form of commotion.
  1. According to the neurosurgeons in particular his account of a collapse followed by a panicked reaction involving a swift arc-like movement onto the bed could have had the same effect in Ellie as if she has been shaken or shaken with an impact onto a soft surface.
  1. On the medical front there is an innocent explanation for all the injuries Ellie sustained having taken into account the father’s own evidence. It is a complex picture that involves two innocent events in quick succession.
  1. Overall, I felt both parents wanted to be open with me. I felt in this context the father was anxious to be truthful. He did not say he remembered it all; he did not try to provide new information. I accept his account. I do not think he inflicted an abusive injury to Ellie. It may well be that inadvertently he injured her, but only in a reactive way after she had collapsed. I wonder how many parents in a panic situation scooping up a lifeless infant from a car seat remember to protect the wobbly head. I am sure many parents would not.
  1. It may be in failing to do so and swinging her round too fast he mimicked a rotational shaking movement; maybe he banged her head too hard onto the bed. He was a new and inexperienced parent reacting to a very difficult and frightening event. He was seeking to revive his baby. He may well have acted in too much haste and with too much force but not intending to harm her in any way.
  1. I do not blame him for causing injury to Ellie, while I accept that he may have done so with all good intention to help her.
  1. I hope everyone will accept that I do not attach any culpability to him, and that in my Judgment he is exonerated from causing her any inflicted injury. If, in fact, he did cause her injury it was purely accidental.

 

 

 

 

There are some final conclusions, which are very important. One is the Judge’s firm views that the involvement of neurosurgeons in a case of this kind is vital, with which I completely agree. Another is that the role of the Guardian, and her representatives in this case was pro-active and assisting the Court in reaching the truth, rather than the passive ‘deckchair brief’ that it often becomes.

 

We have had three judgments this year, McFarlane LJ,  Justice Mostyn and now this one, and this is the strongest of the three.  I would say that this is, because it is a positive decision praising the Guardian and her representatives for being pro-active, that it is now authority for the principle that this is what a Guardian and his or her team should do in fact finding hearings.  Fold up the deck-chair and get stuck into the medical records.

 

If you are representing a Guardian in a fact-finding hearing, or if you are involved in a fact-finding hearing and think the Guardian is being entirely passive, these passages are vitally important.  [My underlining]

 

I could NOT agree more forcefully with these sentiments – it isn’t for the Guardian to prosecute or defend, or to take a side, but to ensure that the possibilities are properly explored and that the Court has the best chance of reaching the truth for the children concerned.

 

  1. And Finally
  1. The medical evidence which I heard is very distant from that heard by HHJ Atkins in January 2008.
  1. To begin with neither he nor the criminal trial, nor indeed the Court of Appeal had sight of the CT scan of 26 February. Its first appearance in Court was before me and before I heard any evidence. Why it was not produced to Judge Atkins I do not know. It is a most valuable document identifying the subdural collections, the acute blood in the subdural space, and the cyst in the larynx.
  1. The Learned Judge heard evidence from Dr Rich, the “treating” Consultant Neuroradiologist, and Dr McConachie, the expert Consultant Neuroradiologist, who declined any further instructions in these proceedings. I did not. He did not have the evidence of Dr Anslow or Dr Stoodley.
  1. He heard from Dr Salem, Dr Dutta, and had reports from Dr Shepherd, all being ‘treating’ doctors. He heard from Dr Lloyd who was jointly instructed, and Dr Harding instructed by the mother. I did not.
  1. He heard from Mr Richards who has never seen the whole medical evidence. He did not hear or see any report from Dr Jayamohan.
  1. He heard from Professor Proops and Mr Joseph, both Consultant Otolaryngologists and ‘expert’ witnesses. He also heard from Mr Daya, the treating Consultant ENT Surgeon. I did not.
  1. He heard from Miss Leitch the ‘treating’ Ophthalmic Surgeon and Mr Gregson and Professor Taylor who were instructed as expert Ophthalmologists. I did not hear Miss Leitch.
  1. He also heard from Dr Cussons, a Consultant in Burns and Plastic surgery. Although I have seen his report and views he was not required, and I preferred the more pragmatic view of Professor Fleming.
  1. The Learned Judge did not hear from Professor Fleming, who was particularly instructed by the parties for this hearing as an expert paediatrician with considerable experience and interest in treating infants with airway and breathing difficulties, and those who have suffered a life-threatening event.
  1. It was very fortunate that he was available. The issue of airway obstruction had been raised long ago, particularly by Dr Salem who called for an expert. Although Dr Harding accepted the proposition her evidence was not so strong. Professor Proops’ evidence discounted airway obstruction as did Dr Lloyd.
  1. I have not read HHJ Atkins’ Judgment of January 2008 or the summing up of HHJ Stow, and deliberately so as to ensure that I dealt with the ‘raw’ medical evidence only and not that as recorded or interpreted by another. I cannot and do not criticise Judge Atkins Judgment, and I make no comment upon Judge Stow’s summing up.
  1. I have come to different conclusions from Judge Atkins on different and more expansive evidence. In my view it is important for me to emphasise this so that the parents, the grandparents and the girls in time can appreciate this. It may also be of some value to the Local Authority.
  1. I wish only to add a few comments and thoughts.
  1. I add also that in many cases involving a fact-finding hearing of alleged abusive injury a Guardian plays little or no part in the proceedings at that stage.
  1. In this case although I gave leave that the Guardian personally need not attend every day she was most ably represented by experienced Queen’s Counsel and experienced Junior, newly drawn from the ranks of solicitors.
  1. The Guardian through them was kept closely informed of the medical evidence. She was able to reflect upon it, and give clear instructions. She came to hear the parents’ own evidence, which in itself is important if a case is to go further.
  1. She gave clear instructions for her written submissions.
  1. I appreciate that it is important to consider costs in such cases, but in this case the Guardian’s involvement and interventions have been of great assistance and significance in the final outcome.
  1. There is no reason why a Guardian should not play an active part in a fact-finding hearing. There are very good reasons why a Guardian should.
  1. A Guardian represents the interests of the child. It is in the interests of that child that the truth is ascertained with as much clarity as possible.
  1. It is the child’s right to know in later life what happened in his/her childhood, and why certain decisions were taken.
  1. In days gone by when I was still practising, and when some children were represented by a Guardian, then the Official Solicitor, the Guardian’s Counsel took an active part in the fact-finding part of the hearing and was expected to do by the Judge and other Counsel ensuring that the relevant and appropriate questions were asked and issues raised for the Judge.
  1. In the appropriate case a Guardian should not only be represented but personally attend parts if not all of a fact-finding hearing, and be prepared to play as full a part as is necessary in that hearing: only then can the child be properly represented.
  1. The instruction and evidence of Professor Fleming only emphasises in cases of alleged inflicted injury and difficult medical issues to resolve the need for all parties and their legal advisors and Courts to consider with care the type of expert required, and the particular expert’s expertise and experience.
  1. It was also important in this case to have the evidence of two experienced Consultant Neurosurgeons. The evidence of a neurosurgeon tends to be broader than that of a neuroradiologist. A consultant neurosurgeon is capable of viewing a scan and interpreting what he sees, he then on operating will see the real thing, and see in fact what he saw as an image on a screen. He also has the advantage of meeting the parents or carer of an injured child, and indeed has to meet with and console grieving adults. Whilst working with the neuroradiologists discussing cases both neurosurgeons said they could read the scans, but deferred to the neuroradiologists for subtleties on the scan.
  1. Again in some cases and with an eye to the costs of cases it may be appropriate to consider instructing an expert neurosurgeon rather than neuroradiologists. In many cases the evidence only of a neuroradiologist is adequate.
  1. It is also important to reflect that in the last 5 years further research has been carried out and papers published on head injuries to infants. There has been much debate on the medical and legal worlds as to how or why some injuries occurred. The debate has emphasised that there is still much that is not fully understood and much to learn. Professor Fleming put it so well, that there was a need to be cautious, not arrogant, and to know that medical science is still learning.
  1. I simply add: “we do not know it all”.
  1. The late Mrs Justice Bracewell once commented to me after a particularly difficult case that it was at the “very edge of medical science”, “she could only do her best in the light of the evidence put to her”.
  1. Mr Justice Hedley is right: “we are fearfully and wonderfully made”.

 

 [See, I said we'd be seeing that line again.  It''s from the King James Bible, Psalm 139:14 if you're interested] 

 

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