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Monthly Archives: December 2012

The case I am most pleased about this year

 

I’ve been waiting for this one for a long time, the Court of Appeal decision that it is perfectly lawful for the Court to make a wardship order as an alternative to a Care Order, where the child’s accommodation can be dealt with by s20.

 

I blogged about the first instance decision on this case here :-

 

http://suesspiciousminds.com/2012/07/30/forensic-ferrets-or-standing-in-the-way-of-beyond-parental-control/

 

And the long and the short of it was that the child had a reactive attachment disorder and the placement with her adoptive parents had broken down as a result. The child had been accommodated, and all were agreed that rehabilitation was not possible, but an argument ensued about the nature of the order. The LA sought a Care Order, and the child’s parents sought wardship, arguing that the LA’s shabby conduct towards them meant that they could not be trusted to hold the lion’s share of PR.  It was very clear from the judgment that the original judge had a great deal sympathy with the parents case and resolved most of the factual disputes in their favour. He said that wardship would be the best order, but that he was prohibited in doing so by s100, specifcially the prohibition on making a child a ward of Court where that required the LA to accommodate the child, and made a Care Order.  

 

Following my blog post, I was contacted by the MacKenzie friend assisting the parents in their appeal, who was a thoroughly nice chap, and I gave a tiny bit of help on the skeleton, and together with Ms SuesspiciousMinds helped put them in touch with some barristers who were willing to take on their case pro bono  (The LSC having scandalously decided that they should not be funded for the appeal – which they WON, which surely suggests that it had some merit?)

I am delighted that justice triumphed in this case, I look forward to seeing the whole judgment, and the parents, who have been treated very badly by the LA here, have been extremely kind in their thanks.

 

I also understand that as a result, this child, who was in massive need of therapeutic support has finally started to receive some, which is far more important than the law.

 

When I started this blog I thought it might one day help a lawyer and save them a bit of research, or that it might stir a memory in Court and allow someone to recall that “There’s a case about this”,  but I never dreamt that it would actually help a real person in even a small way. So I am chuffed to bits.  

E (A CHILD) (2012)

 

 

CA (Civ Div) (Thorpe LJ, Rimer LJ, Baron J) 22/11/2012

FAMILY LAW – LOCAL GOVERNMENT

CARE ORDERS : CHILDREN : COURTS’ POWERS AND DUTIES : RESIDENTIAL ACCOMMODATION : WARDS OF COURT : WARDSHIP : CHILD ACCOMMODATED UNDER S.20 OF THE CHILDREN ACT 1989 : WHETHER S.100(2)(B) OF THE CHILDREN ACT 1989 PREVENTS CHILD BEING MADE WARD OF COURT : CHILDREN ACT 1989 s.100, s.20, s.100(3), s.100(2), s.100(2)(b), s.100(2)(a) : FPR PD 12D INHERENT JURISDICTION (INCLUDING WARDSHIP) PROCEEDINGS 2010

 

A court was not prevented by the Children Act 1989 s.100 from making a child a ward of court where that child was accommodated pursuant to s.20.

 

The court was required to determine whether it was prevented by the Children Act 1989 s.100 from making a child (E) a ward of court where E was accommodated under s.20.

E had been voluntarily accommodated by the local authority under s.20. The judge in the hearing below had to choose between making E the subject of a care order, as sought by the first respondent local authority, no order at all, or a wardship order. In making that decision the judge noted that s.100(3) prevented the local authority from making an application for wardship without the leave of the court, and that if E’s parents, the appellants, wished to issue wardship proceedings they would face the obstacle of s.100(2) . The judge concluded that for the same reasons in K (Children with Disabilities: Wardship), Re [2011] EWHC 4031 (Fam), [2012] 2 F.L.R. 745, a wardship order offered more than a care order, but that were it not for s.100(2) he would have made E a ward of the court. He also stated that notwithstanding Re K and Re F (Mental Health Act Guardianship) [2001] FLR 192, he did not have jurisdiction to make E a ward of court given that she was accommodated pursuant to s.20. In light of that, the judge made a care order ruling that no order at all would have been an even worse outcome.

The appellants submitted, in reliance on Re K and FPR PD 12D, that it could not be the case that s.100(2)(b) rendered it impossible for a wardship order to co-exist with the accommodation of a child pursuant to s.20. The local authority submitted that Re K was of little assistance as it could not be stated authoritatively that the accommodation of the children considered therein was voluntary accommodation; they might have been accommodated under another statutory provision. It further contended in reliance on note 3A-1930 in a handbook on the operation of the Children Act 1989, that FPR PD 12D was erroneous in law.

HELD: The local authority’s submissions were not as persuasive as those of the appellants. In respect of Re K, it was more likely that the accommodation of the children therein had been made under s.20, Re K considered. It was very unlikely that the court had not had proper regard to the statutory limitations stated within s.100. The suggestion that FPR PD 12D had been written in error was bold given the care taken in drafting such guidelines. The note referenced did not support the local authority’s argument, not least because it was directed at s.100(2)(a) and not s.100(2)(b). The effect of s.100 was to prevent a court from making any order which had the effect of requiring a child to be placed into care or under local authority supervision. That outcome could only be achieved by going through the court’s inherent jurisdiction. There was nothing either explicitly or implicitly stated within s.100 which prevented a wardhsip order being made where a child was not required to be accommodated but was voluntarily accommodated. If agreement for accommodation ceased, the court would not be taken to be in a position to require the local authority to accommodate or supervise a child. The judge had not been prevented from making the order that he thought was more likely to address E’s welfare needs. Accordingly, the care order was set aside and replaced with a wardship order.

Appeal allowed

Counsel:
For the appellant: Martin Downs (Pro bono)
For the first respondent local authority: Lorna Meyer QC, Elizabeth McGrath
For the Guardian: Elizabeth Walker

Solicitors:
For the first respondent local authority: In-house solicitor
For the Guardian: Lloyds

If you must Hague, don’t be vague

 

The “too long, didn’t read” version – if you’re making an application in the High Court under the Child Abduction and Custody Act 1985, bring your chequebook. And if you’re doing that, and are listed before the Honourable Mr Justice Charles, ring your bank manager first.

 

 

A discussion of the decision in the High Court of B v A 2012

 

http://www.bailii.org/ew/cases/EWHC/Fam/2012/3127.html

 

As readers of the blog will know, I often lavish praise on High Court Judges. I am fond of High Court Judges who have admirable qualities, such as clarity of thought, beautiful construction of sentences, being able to illuminate a difficult point with a clever analogy, or who are fundamentally kind and appreciate the human dynamics of the cases that appear before them.

 

I am not afraid of distributing praise in those circumstances – I would say fulsome praise, but I am mindful of the words of Inigo Montoya   (no, not, “my name is Inigo Montoya, you killed my father, prepare to die!”  – the other one)  “You keep using that word. I do not think it means what you think it means”

 

Don’t ever say fulsome if you mean generously complimentary….   Or at least, not to a word-geek.

 

 

Anyway, this judgment is by the Honourable Mr Justice Charles and is bloody important for anyone who deals with abduction cases, both solicitors and counsel.

 

 

It would be fair to say that he was irked during the course of this judgment. He considered that insufficient care had been given both to the very serious nature of the application for a location order and to involve the tipstaff, and moreover to the inherent risks of doing so where the initial application was made ex parte, and the facts laid out before the Court were both partial  and potentially partisan.

 

The Judge begins by setting out the reasons why making such orders is extremely serious

 

  • Tipstaff orders, and thus location orders, are (and are designed to be) powerful weapons in the search for children and the determination by the courts of England and Wales of issues relating to their future. They enable public authorities to interfere in the private lives of adults and children and carry serious penalties. It should be known to all judges who grant them that experience has shown that: 

    i) the travelling time of a flight to England can often allow for steps to be taken to meet the relevant adult and child at the airport on arrival, 

    ii) the orders can often be triggered when an adult comes to the notice of the police for some other reason (e.g. a motoring offence), and

    iii) these possible triggers to an order mean that care needs to be taken to ensure that their enforcement (and so possibly an arrest and detention under them) only remains a possibility for as long as they are needed to fulfil their purpose.

     

  • The potentially serious impact of such orders means that those who apply for them and those who grant them should act with caution and due regard to the principles and procedures relating to the grant of relief on a without notice basis (see for example Young v Young [2012] 2 FLR 470 at paragraph 26 (ii) to (v). That case related to a passport order in a case seeking a financial remedy but the same approach is required to a case relating to the alleged abduction of a child or other proceedings relating to a child).

 

Nothing at all to disagree with there.

The Judge was perturbed that an application had been made that was not  constructed as well as it ought to have been. He reminded the applicant’s counsel of a valuable  previous authority B Borough Council v S & Anor [2006] EWHC 2584 (Fam)   dealing specificially with how inappropriate it was for these applications to be made without notice without a great deal of care.

 

  1. General comment on without notice applications


37. There is a natural temptation for applicants to seek, and courts to grant, relief to protect vulnerable persons whether they are children or vulnerable adults. In my view this can lead (and experience as the applications judge confirms that it does lead) to practitioners making without notice applications which are not necessary or appropriate, or which are not properly supported by appropriate evidence. Also there is in my view a general practice of asking the court to grant without notice orders over a fairly extended period with express permission to apply to vary or discharge on an inappropriately long period of notice (often 48 hours). It seems to me that on occasions this practice pays insufficient regard to the interests of both the persons in respect of whom and against whom the orders are made, and that therefore on every occasion without notice relief is sought and granted the choice of the return date and the provisions as to permission to apply should be addressed with care by both the applicants and the court. Factors in that consideration will be an estimation of the effect on the person against whom the order is made of service of the order and how that is to be carried out.

38. Inevitably on a without notice application the court hears from only the applicant. Good practice, fairness and indeed common sense demand that on any such application the applicant should provide the court with:

i) a balanced, fair and particularised account of the events leading up to the application and thus of the matters upon which it is based. In many cases this should include a brief account of what the applicant thinks the respondent’s case is, or is likely to be,

ii) where available and appropriate, independent evidence,

iii) a clear and particularised explanation of the reasons why the application is made without notice and the reasons why the permission to apply to vary or discharge the injunction granted should be on notice (rather than immediately or forthwith as in the standard collection and location orders) and why the return date should not be within a short period of time. As to that I accept and acknowledge that a reference to notice being given if practicable, or for a short period of notice (say 2 working hours or just two hours if a week end or holiday period is imminent), may often provide an appropriate balance to avoid a sequence of effectively without notice applications, and that in some cases a longer period of notice may be appropriate, and

iv) in many cases an account of the steps the applicant proposes concerning service, the giving of an explanation of the order and the implementation of an order. This is likely to be of particular importance in cases such as this one where emotional issues are involved and family members of a person who lacks capacity are the subject of the injunctions and orders. In such cases, as here, information as to those intentions are likely to inform issues as to the need for, and the proportionality of, the relief sought and granted

39. As to point (ii) I pause to mention that in my view it is surprising and disappointing how many times a without notice application for relief is made in the Family Division based only on largely unparticularised assertions by one side of serious allegations without any third party material to support them, or more generally the basis for the relief sought. I appreciate that in many instances there is a very real urgency and there will not be third party evidence of allegations of abusive behaviour that are readily available but in others there will be. A classic example, which occurs regularly, is that an applicant who seeks a return of children to his or her care fails to provide any third party evidence (e.g. from a school, a GP or records in their possession) to confirm that he or she is indeed the primary carer of the relevant children.

40. Guidance has often been given on the information to be provided and the procedure to be followed in seeking without notice relief (see at first instance Re S (a child) (ex parte orders) [2001] 1 WLR 211, [2000] 3 FCR 706, W v H (ex parte injunctions) [2000] 3 FCR 481 (by analogy X Council v B (Emergency Protection Orders) [2005] 1 FLR 341 and Re X (Emergency Protection Orders) [2006] EWHC 510 (Fam)) and in the Court of Appeal Moat Housing v Harris [2005] 2 FLR 551 in particular at paragraphs 63 to 69, and see also the notes to CPR Part 25 and the practice note now reported at [2006] 2 FLR 354).

41. Naturally I endorse that guidance and do not seek to add to it save to emphasise the points made above and to record my own observations that practitioners (a) too regularly do not follow and implement that guidance, and (b) by such failure show an insufficient appreciation of the exceptional nature of without notice relief and the impact it has (or potentially has) on the rights, life and emotions of the persons against whom it is granted.

42. As to this I acknowledge that the courts must take part of the blame for such failures by granting relief without notice in cases when (a) the guidance has not been followed, and (b) the impact on the person against whom the relief is granted could be considerable.

43. I add that additionally there is a need (a) to comply strictly with undertakings given at the time the order is made, and (b) to keep full and proper records of what is put before the court and said to the court. This should include a record of the times of the hearing so that a transcript can be more easily obtained. The availability of a transcript does not however reduce the duty of those applying for without notice relief to keep a full record of what the court was shown and was told.

 

Having quoted those passages, the Judge then indicated that he fully agreed with them    and added to them

 

16. As well as endorsing the guidance set out above, there are three additional comments I would make:

(1) If information is put before the court to substantiate a without notice order, it should be the subject of the closest scrutiny and, if the applicant is not present in person to verify it, be substantiated by production of a contemporaneous note of the instructions. If that is not available, there may need to be a short adjournment to enable steps to be taken to verify the information relied upon.

(2) If additional information is put before the court orally, there must be a direction for the filing of sworn evidence to confirm the information within a very short period of time. If that direction had not been made in this case, the passport order would have been executed when the grounds for obtaining it were simply not there. That would have involved a gross breach of the defendant’s rights, quite apart from the court having been given misleading information.

(3) Lastly, leaving the scrutiny that the court should give to without notice applications to one side, it is incumbent on those advising whether such an application is justified to consider rigorously whether an application is justified and be clear as to the evidential basis for it.”

 

 

 

All very good points, I have been on the other end of a number of ex parte applications, and when you come to Court and outline what the other side of the story is, you often see the Judge’s expression become “Well, if I had known THAT…”  

 

And these applications are of course, an immensely serious interference with someone’s liberty and free movement, and it is therefore important that a great deal of care is taken, both by the advocate presenting the case and by the tribunal determining it.

 

 

The long and short of this case was that the applicant’s representatives ended up not just not getting the order, but with something far, far, far worse than that. Probably the worst outcome you can ever get if you send counsel off to Court to make an application.  

  1. As mentioned in B Borough Council v S, I recognise that there is a natural temptation for applicants to seek, and for courts to grant, relief to protect the vulnerable, and, I add, to find children who it is alleged have been abducted. But this temptation, and the strong public interest in granting such relief, does not provide an excuse for failures to apply the correct approach in law to such applications. Indeed, if anything, the strong public interest in providing such relief and its impact on the subjects of the relief and their families mean that the correct approach in law should be followed and so the sound reasons for it, based on fairness, should be observed. Naturally this applies to all without notice applications, but it can be said to have particular importance when Tipstaff orders are sought and granted because they can found a deprivation of liberty without further court involvement, and they do restrict freedom of movement.
  1. In my view, a practice of granting and continuing Tipstaff orders in Hague Convention cases as a matter of course and without insisting on properly prepared, particularised and updating evidence is to be deprecated.

 

AND

  1. It seems to me that if such failures are to be avoided in the future there is a need for judges:

i) to refuse to make without notice orders if the established principles and procedures are not applied (I and some other judges do this), and

ii) to treat such failures as negligent and thus as a foundation for the exercise of discretion to make a wasted costs order.

  1. Sadly, the first course alone has not resulted in general improvement and it is to be hoped that when the second course is added it will. But, I acknowledge and confirm that this promotional effect is not a ground for making the order rather it is a potential product of making such an order applying the approach set out in Ridehalgh.

 

 

And more chillingly for advocates

 

  1. Generally, a litigant has to take the consequences of such behaviour and look to his advisers for recompense but I have concluded that the application for costs against him should be refused, because:

i) the point that the shortcomings in the presentation of his case by his advisers is a reflection of endemic failures of family practitioners and courts means that his conduct should not be categorised and reprehensible or beyond the band of what is reasonable (see paragraph 80 hereof), and

ii) the policy and merits arguments referred to in paragraphs 82 to 84 support no such order being made.

 

 

Thus it wasn’t the client who was going to be hit for costs, but rather his representatives

 

 

  1. Also, in my view:

i) the merits and policy arguments referred to in paragraphs 82 to 84 above, and

ii) the point that the father’s solicitors are unfortunate to be singled out when their failures to comply with the principles and procedures relating to without notice applications are widespread in the Family Division and were not picked up by a number of judges,  warrant reductions in the costs to be awarded as wasted costs.

  1. Taking the above into account, in respect of the costs schedule up to the hearing on 10 September 2012, I make a wasted costs order against the father’s solicitors in the sum of £18,000 (to include VAT).

 

The Judge had actually knocked quite a bit off the costs to reflect that this was a warning shot across the bows and that the particular advocates involved had not been worse in their failings than many other cases.  But implicit in that is “woe betide”

 

I suspect that there may well be some family barristers who are having gentle chats with their clerks about whether the cab rank rule means that they need to take cases where they are liable to be personally stung for costs of £18,000 plus, and frantic calls to the RCJ list office to determine tribunals might well be being made.

 

I do wonder also whether sufficient weight has been given here to the very nature of the applications – a parent believes their child has been abducted, the child is missing, information is sketchy and develops piecemeal, and often the most strikingly important details emerge during the course of the day and are not necessarily reduced to affidavit form in advance. I also wonder how much better such cases will be presented in the High Court when those advocates who are skilled and accomplished at presenting them no longer want to bear the personal risk of doing so…

 

 

 

As clear as a bell (if the bell were made out of mud)

The High Court helps out yet again, on ordinary residence issues, between Local Authorities, with head-scratching results. I think I finally get it, though it took three reads of the judgment.  In the words of Bertie Wooster,  “the slight throbbing about the temples told me that this discussion had reached saturation point.”

 

Suesspicious Minds accepts no liability for any such throbbing about the temples in the reader who attempts this judgment. 

This happened in the case of  Cornwall Council v Secretary of State for Health and others 2012

 

http://www.bailii.org/ew/cases/EWHC/Admin/2012/3739.html

 

This time, it relates to an adult with profound difficulties, who was owed duties by the State under the National Assistance Act 1948 to provide him with accommodation and services to meet those complex needs. The issue was, which precise bit of the State, and more importantly, which local authorities local taxpayers were about to shell out a huge wedge of cash on a person who had very little whatsoever to do with them.

 

The duty of course, is owed by that Local Authority in which the person is ordinarily resident, but in adult cases, that test of ordinary residence comes with a settled intention on the person’s part to live or settle there.  Where the person lacks capacity to form such intention, problems arise.

 

The various local authorities involved went to the Secretary of State for a determination, under section 32 (3) of the National Assistance Act 1948.

 

The Secretary of State looked at the case, and determined that this adult, who was not physically living in Cornwall,  was not accommodated in Cornwall, had no home in Cornwall and visited his parents in Cornwall two or three times per year, was the responsibility of Cornwall. 

 

Unsurprisingly, Cornwall didn’t like that much, and challenged it by way of judicial review.  It does seem manifestly crackers that a council’s taxpayers can be obliged to fork out upkeep for an adult who has never lived in their area, is never going to live in their area and whose sole connection with it is that his parents live there.

 

Cornwall  felt, that Wiltshire, who had accommodated this adult in 1991, when he and his parents had been living in Wiltshire, and had been looking after him ever since, were the authority who had ordinary residence.  From 1991 to 2004, he had been living with foster parents in Wiltshire; but then when he became an adult was provided with residential care in a third local authority’s area, South Gloucestershire. By that time, the adults parents had moved to Cornwall.

 

Cornwall, Wilshire, South Gloucestershire and Somerset (who, I think) were the local authority whose area this adult might be moving to in the future, had different ideas about who was the local authority responsible for providing care for this adult for the remainder of his days.  Though I suspect they all expressed it in broadly the same way “Wherever this person is ordinarily resident, it isn’t in my area”

 

 

I am afraid that the discussion within the judgment is eye-wateringly complex, but shakes down to this, at its heart, deriving from R v Waltham Forest LBC, ex p. Vale, 25 February 1985.

 

Taylor J set out two approaches, which are referred to as “test 1″ and “test 2″ in the Departmental Guidance. “Test 1″ applies where the person is so severely handicapped as to be totally dependent upon a parent or guardian. Taylor J stated that such a person (in that case it was a 28 year old woman) is in the same position as a small child and her ordinary residence is that of her parents or guardian “because that is her base”. The second approach, “test 2″ considers the question as if the person is of normal mental capacity, taking account of all the facts of the person’s case, including physical presence in a particular place and the nature and purpose of that presence as outlined in Shah, but without requiring the person himself or herself to have adopted the residence voluntarily

 

 

So, if the person has capacity, one looks, in the traditional Shah sense, of whether they have made a settled intention to live somewhere (even if that is not where they are physically living), and it would not have been Cornwall.

 

But, where they don’t, even though they are an adult, the Court treats them as a small child, and ordinary residence is where the parent of that person lives.

 

(Even if the adult were 50 and the parents were 80, one assumes)

 

Using my traditional loophole lawyer mind, I’m troubled as to how the Court resolve the issue of ordinary residence here where an adult’s parents are deceased, or live separately to one another in two different local authorities.

 

 

 

For the purposes of the case, the important arguments were in the fourth ground for JR, that Vale was now overtaken by subsequent decisions and the Mental Capacity Act, and that it was no longer the right test for deciding cases of this kind.  And that physical presence, rather than the physical location of the parents of an adult with capacity issues, was a more important factor in determining ordinary residence.

 

If you don’t want to slog to the end of this very law-heavy paragraph, and I honestly could not blame you – the upshot is that the High Court think the Secretary of State is right, Vale remains good law, Cornwall got well and truly hosed.   The underlined passage is probably why.

 

 

 

  1. iv) Ground 4:
  1. I turn to ground 4, the challenge to the approach in Vale’s case based on the submissions that there is a conflict between the tests in that case and those set out by the House of Lords in Shah’s case and in Mohammed v Hammersmith and Fulham LBC and that the approach has been overtaken by the approach to mental incapacity in the Mental Health Act 2005. In his reply, Mr Lock also submitted that Vale’s case is not authority for the proposition that, after thirteen years first with foster parents and then in two care homes, PH’s “ordinary residence” at the relevant time was that of his parents and follows their ordinary residence because they continue to take an interest in his welfare.
  1. The starting point in considering Mr Lock’s submissions is the acknowledgment by Lord Scarman in Shah’s case (see [1983] 2 AC at 343G-H) that the statutory framework or the legal context in which the words “ordinary residence” are used may require a different meaning to that in his “canonical definition”. The context before the court in that case was entitlement to a mandatory grant for fees and maintenance for students pursuing a course of study leading to a first degree or comparable course of further education. To be so entitled, they had to be “ordinarily resident” in the United Kingdom throughout the three years preceding the first year of the course. The key concepts in Lord Scarman’s definition (set out at [6]) are that the residence must be “voluntarily” adopted and that it must be for “settled purposes”. Lord Scarman stated that these are the two ways in which the mind of the individual concerned is important in determining ordinary residence: see [1983] AC at 344. As Mr Harrop-Griffiths observed, in the light of the facts of Shah’s case, it was hardly surprising that Lord Scarman did not seek to explain how the test he stated could, if necessary, be adapted in the case of an incapacitated person. What is clear, however, is that a test which accords a central role to the intention of the person whose “ordinary residence” is to be determined cannot be applied without adaptation when considering the position of a person who does not have the capacity to decide where to live.
  1. The other case on which Mr Lock relied, Mohammed v Hammersmith and Fulham LBC was also not concerned with a person who lacked capacity. Moreover, it was not concerned with the term “ordinary residence” but with the term “normal residence” in sections 198, 199 and 202 of the Housing Act 1996. M was a homeless person who had lived as the guest of a friend in Hammersmith for two and a half months. After being reunited with his wife, the couple applied to the Hammersmith and Fulham Council for assistance with accommodation. In July 1998 the Council determined that neither the applicant nor his wife had any local connection with Hammersmith but, as the wife had a local connection with Ealing by reason of her several years of residence there, their application was referred to the local housing authority for Ealing.
  1. The question for the court was whether the Hammersmith and Fulham Council had erred in not taking into account the period spent by M when living in its area as the guest of his friend. It was held that it had. Interim accommodation within the area of the Council could constitute “normal residence” for the purpose of section 199(1)(a) and thus be evidence of a local connection. Lord Slynn of Hadley stated (at [17]) that where a person in fact has no “normal residence” at a particular time, the term is to be given the same meaning as “ordinarily resident” in Shah’s case, and (see ibid at [18]) that “the prima facie meaning of normal residence is a place where, at the relevant time, the person in fact resides”. He continued:

“That therefore is the question to be asked, and it is not appropriate to consider whether, in a general or abstract sense, such a place would be considered an ordinary or normal residence. So long as that place where he eats and sleeps is voluntarily accepted by him, the reason why he is there rather than somewhere else must not prevent that place from being his normal residence. He may not like it, he may prefer some other place, but that place is, for the relevant time, the place where he normally resides.”

  1. Mr Lock gains some support from Lord Slynn’s statement that the term “normal residence” is to be given the same meaning as “ordinarily residence”. But it is limited support. Apart from the differences of statutory context and terminology, Lord Slynn stated the term “normal residence” is only to be given the same meaning as “ordinarily residence” where, at the relevant time, the person in fact has no “normal residence”. The test is thus a surrogate because the person in fact had no “normal residence”. It is, indeed, a surrogate which accorded an important role to intention. Lord Slynn’s reference to the need for the person to “voluntarily accept” the place where he eats and sleeps, suggests that physical presence was used as an indication of what the person voluntarily wanted and it was that which could constitute a local link. Moreover, the factual circumstances included a number of features pointing to a strong attraction to the borough in which M was physically present. They included the presence of relatives in the borough and the need for medical treatment which was being provided by a hospital in the borough. It would appear that physical presence is insufficient in itself and that what is required is an underlying attachment.
  1. Mr Lock also relied on R (Hertfordshire CC) v Hammersmith and Fulham LBC [2011] EWCA Civ 77 and R (Sunderland CC) v South Tyneside C [2012] EWCA Civ 1232, two cases about the meaning of the term “resident” in section 117 of the Mental Health Act 1983. The Hertfordshire case is of limited assistance because there was no evidence that JM lacked capacity: see [2010] EWHC 562 (Admin) per Mitting J at [5] and [8] and [2011] EWCA Civ 77 per Carnwath LJ at [8]. In the Sunderland case Lloyd LJ stated (at [26]) that, in understanding the meaning of the term “resident” in the 1983 Act, he did not find it helpful to consider cases in which “ordinary residence” in other legislation has been construed. Similarly, I do not find the cases on the term “resident” of assistance in construing the term “ordinary residence” in the 1948 Act.
  1. I therefore turn to Vale‘s case. It was the first case in which the determination of the “ordinary residence” of an incapacitated person fell for decision. For the reasons I have given, I do not consider that the approaches set out by Taylor J in it are “inconsistent” with the approach in either Shah‘s case or Mohammed v Hammersmith and Fulham LBC. Is it, however, outdated or flawed in some other way?
  1. On examination, the facts and the judgment of Taylor J show that what are referred to as “Test 1″ and “Test 2″ in the Departmental Guidance are not rules of law but two approaches to the circumstances of a particular case. Both involve questions of fact and degree, although Test 2 may be thought to do so to a greater degree.
  1. Vale‘s case concerned Judith, a 28 year old woman who lacked the mental capacity to decide where to live. She was born in London but her parents moved to Dublin in 1961, when she was five. She was placed in residential care in the Republic of Ireland. In 1978, when she was 22, her parents moved back to England with their other children to an address in the area of Waltham Forest. Judith remained at a home for the mentally handicapped in Ireland, but visited her parents two or three times a year. In May 1984, she returned to England to her parents’ address. In anticipation of her return her parents, who wanted to place Judith in a suitable home, sought assistance from Waltham Forest LBC. After her arrival, a placement was found at a home in Stoke Poges, in Buckinghamshire. The DHSS agreed to meet the major part of the cost. Waltham Forest refused to make up the shortfall on the ground that Judith had not been a resident in the borough, but had transferred from a residential placement in Ireland where her need for residential accommodation arose.
  1. After considering Shah‘s case, Taylor J stated that, where a person’s learning difficulties were so severe as to render them totally dependent on a parent or guardian “the concept of her having an independent ordinary residence of her own which she has adopted voluntarily and for which she has a settled purpose does not arise”. He identified two alternative approaches to the determination of where such a person is ordinarily resident. Where a person is so severely handicapped as to be totally dependent upon a parent or guardian, he stated that she is in the same position as a small child and her ordinary residence is that of her parents or guardian “because that is her base”. This (see [24(8) – (9)] is referred to as Test 1 in the Departmental Guidance.
  1. Taylor J stated that the alternative approach (which the Departmental Guidance refers to as Test 2) is to consider the question as if the person is of normal mental capacity. He considered where the person was in fact residing and the purpose of such residence. He stated that Judith was residing “with her parents for the settled purpose of being looked after and having her affairs managed as part of the regular order of her life for the time being” and “until it was possible to obtain funding for her to go” to the home in Stoke Poges. He stated that there was no other address at which she could have been ordinarily resident, that Shah’s case required future intent to be left out of account, and that Judith could not be regarded as a squatter in her parents’ home. The Departmental Guidance (paragraph 34, summarised at [24(10)]) rationalised what he had said about this second alternative thus:- “all the facts of a person’s case should be considered, including physical presence in a particular place and the nature and purpose of that presence as outlined in Shah, but without requiring the person themselves to have adopted the residence voluntarily”.
  1. Vale‘s case was decided two months after the decision of the House of Lords in Shah‘s case. It was the first case in which the approach to the determination of the “ordinary residence” of an incapacitated person fell for decision. It was applied by Potts J in R v Redbridge LBC, ex p. East Sussex CC [1993] COD 256, and considered without disapproval by Charles J in R (Greenwich LBC) v Secretary of State [2006] EWHC 2576 (Admin) and the Court of Appeal in R (Hertfordshire CC) v Hammersmith and Fulham LBC [2011] EWCA Civ 77 at [41] (Carnwath LJ). Central government and local authorities have placed significant reliance on it in formulating guidance.
  1. In these circumstances there needs to be a good reason to replace it and a satisfactory alternative approach. Cornwall‘s case is that primacy should be given to physical presence. It is, however, important not to accord insufficient weight to the fact that Parliament chose the concept of “ordinary residence” as opposed to “residence”, to the difference between those concepts, and to the other factors which are of relevance in determining “ordinary residence”.
  1. It is clear from the cases, including Shah’s case and Mohammed v Hammersmith and Fulham LBC, that physical presence is not sufficient to constitute “ordinary residence” but the implication of Mr Lock’s submissions is that it is a necessary requirement. He relied on Holman J’s statement in North Yorkshire CC v Wiltshire CC [1999] Fam. 323 at 333 that it is “wholly artificial to regard a child as continuing to be ordinarily resident in an area in which neither he nor his family continues actually to reside and to which neither expects to return”. In PH’s case that has been the position since May 2012, but it was not the position in December 2004. At that time PH’s parents lived in Cornwall, there was a physical presence by him in the county during his visits. Indeed, as it happened, PH was physically present in Cornwall on the day before his eighteenth birthday, although I disregard that fortuitous circumstance as of no significance to the determination of the question before me. However, his parents were much involved in the arrangements for his care and took an active and continuing interest in him, and that is a relevant factor.
  1. At this stage it is instructive to consider the two first instance cases in which Vale’s case has been considered. The first is R v Redbridge LBC, ex p. East Sussex CC , 21 December 1992, of which I only have the summary of the judgment in the Crown Office Digest: [1993] COD 168. The father of handicapped autistic twins, who lived in Haringey, placed them at a residential school in East Sussex. Four years later in 1986 the twins’ parents moved to the area of Redbridge LBC and sought assistance from the council. In 1987 Redbridge informed the father that, pending a statutory assessment, it would accept responsibility for the education of the twins, then aged fifteen. In January 1989 the residential school informed Redbridge that it would be closing on 17 March 1989.On 2 March Redbridge learned that the twins’ parents had sold their house in Redbridge and left this country to live in Nigeria in December 1988, and, on 10 March, Redbridge informed East Sussex of the impending closure of the school, the parents’ return to Nigeria, and that it considered that the statutory responsibility for the twins lay on East Sussex. As the twins were in urgent need of assistance and were in its area, East Sussex provided emergency respite care under the National Health Act 1977, but instituted judicial review proceedings contending that the duty to provide for the twins under the 1948 Act lay on Redbridge. There appears to have been no consideration of responsibility under the Children Act 1989.
  1. Potts J held that the duty under the 1948 Act fell on East Sussex. The summary in the Crown Office Digest states that he held that the twins were ordinarily resident in Redbridge until December 1988 because they were so mentally handicapped as to be totally dependent on their parents, and because Redbridge was their base. However, after their parents left and the family house was sold, they had no settled residence, were physically present in East Sussex, and were in urgent need of care. East Sussex was (see [23]) the “local authority of the moment” and, as such, the duty fell on it. The summary does not state whether the twins had ever visited their parents in Redbridge before the parents returned to Nigeria. It refers to Redbridge seeking to contact the parents in December 1988 about funding a holiday placement, and to the fact that the parents left for Nigeria without informing Redbridge. These factors suggest that there may have been only little contact between the parents and the twins, even in the school holidays, before that time. Nevertheless, their parents’ house in Redbridge was stated to be their base.
  1. The second case is R (Greenwich LBC) v Secretary of State[2006] EWHC 2576 (Admin). D, an elderly woman who lived in the area of Bexley LBC moved into a care home in Bexley. Her means were such that she and her family were responsible for the costs of her care, and her home was sold to provide funding for this. After about a year, it was decided that it was no longer appropriate for D to remain at that home because she needed to be in a EMI nursing home or in NHS care. She was placed in a nursing home in the area of Greenwich LBC. Four weeks and five days later, on 29 June 2002 her capital had fallen to the point that responsibility for her care fell on the appropriate local authority. There was a dispute between Greenwich and Bexley and they referred the matter to the Secretary of State. He determined that, although the move to the home in Greenwich was facilitated by Bexley, it was D’s family and not Bexley who placed her there. The question was where she was ordinarily resident on the date when her available capital fell below the relevant financial cap. The Secretary of State decided that it was Greenwich. After considering the authorities, including Vale‘s case, Charles J stated (at [72]):

“Habitual or ordinary residence is in each case a question of fact. The temptation to turn it into an abstract proposition should be resisted. Habitual or ordinary residence is not equivalent to physical presence. There can be ordinary or habitual residence without continuous presence, while physical presence is not necessarily equivalent to residence. Residence means living somewhere. The significance of ordinary or habitually is that it connotes residence adopted voluntarily and for settled purposes. That was the point emphasised before me and appears clearly from Shah. Although ordinary in one place can be lost immediately, acquisition of a new ordinary residence requires an appreciable period of time. The length of the appreciable period of time is not fixed, since it depends on the nature and quality of the connection with the new place. However, it may only be a few weeks, perhaps, in some circumstances, even days. In order to establish ordinary residence over a period of time a person must spend more than a token part of that period in the place in question. Ordinary residence is not broken by temporary or occasional absences of long or short duration. …”

  1. Charles J thus regarded “ordinary residence” as involving questions of fact and degree, and factors such as time, intention and continuity, each of which were to be given a different weight according to the context: see [73]. He also stated (see [74]) that the fact that the individual in that case did not have an existing right to reside at a place in Bexley on the relevant date is a significant factor to be taken into account, but “is not determinative of the issue”. Mr Lock’s submissions in effect suggested that PH could not be ordinarily resident in Cornwall because he did not have the “right” to reside at his natural parents’ home. Although certain passages in the Secretary of State’s determination in the Greenwich case might be understood to suggest that the Secretary of State regarded the absence of a place available in Bexley as determinative, Charles J stated (see [85]) that, on its true interpretation, the determination stated that, given all the factors that had to be taken into account, the key factor was that the individual did not in fact have anywhere to live in Bexley any longer, and was actually living in Greenwich, and that the factors that fell for consideration did not outweigh the force to be given to those points in determining her ordinary residence.
  1. Drawing the threads together, “ordinary residence” is a question of fact and degree, and if the Secretary of State gets the law right, the determination of a person’s ordinary residence is for the Secretary of State, subject only to Wednesbury unreasonableness. In the present case PH’s connections with Cornwall differed from Judith’s connections with Waltham Forest in Vale’s case. In one sense PH’s connections were more transitory because Judith had come to stay with her parents in Waltham Forest until appropriate arrangements were made for her whereas by December 2004 arrangements had been made for PH to be placed in a home in Somerset. But, in North Yorkshire CC v Wiltshire CC [1999] Fam. 323 at 334 Holman J stated that “the court is entitled to take into account matters other than where [the person himself or] herself was living during the specified period, and Potts J in R v Redbridge LBC, ex p. East Sussex CC .did not appear to have placed any weight on whether there was a physical presence by the twins in Redbridge during the period in which the court found they were ordinarily resident there.
  1. In deciding whether PH’s base was at the home of his natural parents, the Secretary of State applied the Vale Test 1 in a fact-sensitive way. Although not determinative of the legality of his decision, he did so in a similar way to that presented in “scenario 2″ in paragraph 158 of the Departmental Guidance: which is summarised in the Appendix to this judgment.
  1. The Secretary of State examined (see determination, paragraphs 23-24, set out at [46]) whether there was a real relationship between PH and his natural parents and whether they were in fact making relevant decisions. He was entitled to take account of that and (see determination, paragraph 25) of the “entirety of the relationship between [PH] and his parents”. As part of that, he was also entitled to take account of the time spent by PH with them in Cornwall.
  1. It is also clear that the Secretary of State took account of the approach in section 4 of the Mental Capacity Act 2005. In considering the approach of PH’s family, he concluded that they viewed contact with PH in terms of what was in his best interests.
  1. The process of determining that PH was ordinarily resident in Cornwall may appear artificial. There would, however, have been a similar artificiality in determining that he was ordinarily resident in any of the other counties under consideration. The Secretary of State gave reasons for concluding that PH could not be considered ordinarily resident in Wiltshire at the relevant time: see paragraph 22 of the determination, which is set out at [46] above. Those reasons and that approach are in line and consistent with the decision of the Court of Appeal in Re D (a child) (care order: designated local authority) [2012] EWCA Civ 627.
  1. In D‘s case it was held that the “disregard” principle in section 105(6) of the 1989 Act did not apply when the ordinary residence of a sixteen year old mother had to be determined for the purpose of determining the ordinary residence of her baby. Elias LJ stated:

“[the mother] is treated as though she has two hats; she is a mother whose ordinary residence must be determined by common law principles when that concept is relevant for the purpose of determining her child’s ordinary residence for any purpose under the 1989 Act; but she is a child whose ordinary residence is modified by section 105(6) when it comes to determining her own place of ordinary residence for any purpose under that Act”. (at [45]).

The reasoning summarised in paragraph 22 of the Secretary of State’s determination represents the application of those common law principles.

  1. As to South Gloucestershire, for the reasons I have given in [66], by the relevant date it was clear that PH was only in South Gloucestershire on a very temporary basis and the settled intention required to establish “ordinary residence” could not be imputed to him. Finally, as to Somerset, although it was planned that he would move there shortly afterwards, at the relevant date he had never lived in that county. Shah‘s case required future intent to be left out of account.
  1. For these reasons, I have concluded that the Secretary of State’s determination that PH had, as his “base” his parents’ home as at the date of his eighteenth birthday, and hence was ordinarily resident in Cornwall was one that was properly open to him. Accordingly this application is dismissed.

 

Robust case management has its place, but it also has its limits

 

A Christmas dash through  Re B (A child) 2012    (and when WILL the Court of Appeal revert to giving cases helpful names inside the brackets?)

 

 

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1742.html

 

 

This is a private law case with the usual cavalcade of allegations and cross-allegations.   In major part, the most serious allegations related to whether the mother had continued a relationship with a man, Mr C, who was suspected of having been very violent towards his own children.

 

The father hired a private investigator to observe the mother, to see whether Mr C continued to be a visitor to (or indeed a guest at) the children’s family home.

 

  1. The hearing started on Monday 1 October. It is now clear that there had been a flurry of activity immediately preceding it.
  1. On the weekend of 14 – 16 September, when S was staying with her father, she had said various things to him which suggested that far from the mother and Mr C having separated, Mr C was still part of day to day life. S said that:

i) Mr C had cooked her tea the night before she came to stay with her father; she came to stay on Friday 14 September so that would have been on Thursday 13 September.

ii) She had been swimming with her mother, E and A, and Mr C; A was born on 23 August 2012 so if she was right, that must have been a recent occurrence.

iii) She sometimes had to sleep with E because Mr C was sleeping in her mother’s bed with A; again, given the presence of A in the account, that must have been a recent occurrence.

  1. The father instructed a private investigator to observe the mother’s house. Mr Preece was that private investigator. He observed the premises over the back fence from 18 September to 24 September. A report by him was produced, stating that he had observed Mr C coming out of the back door of the mother’s house on Tuesday 18 September at 08.06 and on Thursday 20 September at 08.05. On Monday 24 September at 15.00, he saw Mr C leave the property and get into a car and drive away. Mr Preece’s report was appended to a statement from the father dated 27 September which was served on the mother just after midday on 28 September, that is the Friday before the hearing was due to start on the Monday.
  1. Also on 28 September, James Green, S’s allocated social worker, visited S at school and talked to her. There is an email from him in which he set out what happened [E11]. It reads:

“S said she has been ill and off school. She said she has been up in the night when sick. I asked her who was in the house. She said Mummy and that A and E were in mummy’s bed. I asked what about [Mr C]. She told me [Mr C] was also there. Also that he was helping her when she was ill last night.

I asked S about swimming. I asked her who goes swimming with her. She told me A, E and [Mr C]. She said [Mr C] has to stay out the pool and watch to look after A [sic].”

  1. The mother was then visited by Mr Green who discussed with her the evidence pointing towards Mr C having been in contact with S. Mr C was there too. Apart from admitting that Mr C was at the house at 15.00 on 24 September, both he and the mother denied the information that emerged from the investigator and from S.
  1. These last minute developments obviously placed all the parties in a difficult position. The judge had to decide what to do in response to them. It was clear that the matter was of great significance because the guardian made plain that if it was established that there had been unofficial association between the mother and Mr C, she would be recommending an immediate transfer of residence from the mother to the father.

 

 

 

The mother disputed that Mr C had been at the home, other than on the admitted occasion and wished to call a number of witnesses to that effect. In particular,

 

In relation to 18 September, she also wanted to produce documentary evidence in support. Her case was that on that day, Mr C was in Glen Parva near Leicester meeting his son who was being released from the Young Offender Institution there that morning. She was able to produce a form showing that Mr C’s son was being released that day. She also produced a copy of a bank statement of Mr C’s which showed that his Advantage Gold card had been used for a purchase in McDonalds in Leicester that day. However the bank statement did not record a precise time for the transaction. A telephone call to McDonalds had indicated that the transaction was at 9.19 a.m. but documentary proof of that could not be obtained at such short notice. It was common ground that if Mr C had been in Leicester then, the private investigator could not have been seen him at the mother’s property.

 

 

And the credit card transactions could, therefore, have become alibi evidence for Mr C, putting him in another town at the time that the private investigator claimed to have seen him at the mother’s home.

 

[Interestingly, neither the trial judge nor the Court of Appeal seem to me to have criticised the father for taking this step of placing mother under surveillance,  which would seem to me to have been a breach of mother’s article 8 right to private and family life]

 

The nub of the case therefore became, as the Court of Appeal succinctly put it, how the Judge was to manage to fit what would have been four days of litigation into the two days available.

 

  1. It is always difficult for a judge faced, as this judge was, with an urgent decision to take and insufficient time in which to take it. It is a dilemma which family judges regularly have to confront. How they resolve it will depend upon the precise circumstances of the individual case. As this court has often observed, a judge making case management decisions has a very wide discretion and anyone seeking to appeal against such a decision has an uphill task.
  1. However, in this case, I am very clearly of the view that the judge’s case management decisions not only deprived the mother of the opportunity to answer the case against her but also deprived the court of evidence that was necessary to enable it to make reliable findings of fact. It is therefore necessary, in my judgment, for the judge’s finding of fact and his consequential orders to be overturned and for the matter to be reheard in front of a different judge

 

 

The Court of Appeal considered that whilst it is open to a Judge to robustly case manage, and determine what evidence is to be called and heard, and to place time restrictions on cross-examination, the way it was done in this case effectively prevented the mother from placing her defence before the Court.

 

They were particularly troubled in the Judge’s decision not to bring Mr C into the proceedings or to obtain his credit card transactions.

 

  1. It appears that the judge considered that he could determine the truth or otherwise of the allegations about Mr C’s presence in the mother’s house through the prism of the evidence of Mr Preece and the mother. He said (§16):

“it seems to me that I have got to grasp the nettle of whether I accept Mr Preece’s evidence or whether I accept mother’s evidence.”

  1. Judges do sometimes have to decide, almost in a vacuum, whether or not to believe a witness. However, this was not such a case.
  1. This is perhaps most clearly demonstrated by the position in relation to Mr C’s credit card. The combination of the bank statement and the preliminary enquiries that had been made of McDonalds suggested that there was a realistic possibility that documentary evidence would be forthcoming that Mr C’s credit card was used in Leicester McDonalds in circumstances which, if Mr C was the user of the card, would make it impossible for him to have been seen by Mr Preece on 18 September. The judge was of course correct in saying that the fact that Mr C’s credit card was in Leicester did not necessarily mean that Mr C was. However, if more detailed bank records did in fact support the presence of the credit card there at the material time, it would have been an important piece of evidence for the judge to include in his evaluation of the totality of the evidence and not one, I think, that could be dismissed as robustly as the judge dismissed it. There would have needed to be consideration of how the credit card got there, if not with Mr C. Mr C’s own evidence would have been particularly important in that regard. And assuming that Mr C did not concede that he had not used the card in Leicester himself, counsel would no doubt also have wished to challenge Mr Preece with the evidence of its use and the impossibility of Mr C being in two places at once, endeavouring thereby to shake Mr Preece’s evidence that he saw him at the mother’s house.
  1. I am troubled by the judge’s comment that he would have been “unwilling to admit Mr C to these proceedings”. It is understandable that the judge wished to keep the focus on S and those immediately responsible for her care. He may well also have had in mind that, as we were told by counsel for the father, Mr C had earlier been involved in the proceedings but ceased to be so when he failed to provide his solicitor with any instructions. However, when it comes to making findings of fact, the court’s focus should be firmly on an analysis of what evidence is necessary to enable proper findings to be made. Of course, the urgency of the court’s decision can sometimes make it imperative that there be limitations on the evidence that is called, however relevant it would be. Similarly, the judge may find himself unable to permit a witness’s evidence to be adduced because it has been produced too late in the day or without regard to earlier case management directions or he may determine that it is disproportionate to the issues to permit reliance on it. However, matters such as those are different from a decision to decline to hear evidence from a material witness because, for some reason not related to their evidence, the witness is not thought to be an appropriate person to participate in the proceedings; such a decision is much more difficult to justify. Here Mr C was a material witness, indeed a central witness, not only on the issue of the bank card but also generally in addressing the allegations that he was present at the mother’s home when he should not have been. Subject to the need to decline to hear Mr C for reasons of urgency (to which I return below), I do not see how the judge’s decision to refuse to consider evidence from him and about the use of his credit card can be supported.

 

 

The Court of Appeal made a suggestion for how the Court could have proceeded in the time available without curtailing mother’s opportunity to present her case against the allegations.

 

  1. The judge was rightly anxious to protect S and conscious of the need to do so without delay. The father submits that the risk to S had increased if the mother was lying about Mr C’s presence in the household and that once evidence came to light to suggest this, the judge had to act. However, it seems to me that the judge needed to consider whether, rather than holding an immediate truncated hearing, there was any other way in which he could safeguard S’s welfare. I got the impression that in fact no one had suggested any alternative to him but a possibility which occurs to me is that he could have ordered that S stayed with her father, possibly under an extended contact order or alternatively a short interim residence order, for whatever limited time was sufficient to enable a fuller hearing to be arranged (see for example Re K (Procedure: Family Proceedings Rules) [2004] EWCA Civ 1827 [2005] 1 FLR 764 as to the circumstances in which interim transfers of residence may be made), either adjourning the case entirely to another day or, if feasible, making a start on the evidence with a view to resuming it at a later date.
  1. Given the option of an extended stay with the father by way of protection for S, I do not therefore see the judge’s choice as a stark one between running such risk as there was to her safety in the care of the mother or determining the factual issues on the material that could be produced and fitted into the two days of court time that were available. It may well be that the anxiety provoked by the impression that those were the only options led the judge to give too much weight to the urgency of the situation and the need to get on with the hearing. The decisions that he took in relation to the material evidence that the mother wished to adduce were no doubt the product of that anxiety but I am persuaded that they were not decisions that were properly open to him in this particular case, even making allowance for the breadth of his case management discretion.

 

The Court of Appeal conclude by stating that the case turns on its own facts, but emphasising that there is a balance in using the powers under Rule 22, and that a fair trial is still essential when using those powers.

 

I should say in conclusion that this appeal turns very much upon its own facts. Rule 22 of the Family Procedure Rules 2010 entitles the court to control the evidence in a case by giving directions. This is a wide power and can be used to exclude evidence which would otherwise be admissible. Robust case management therefore very much has its place in family proceedings but it also has its limits.

 

Cobb-led together

 

Hope you all had a Merry Christmas.  I was pleased to see before Christmas that Stephen Cobb QC has been made up to a High Court Judge. 

I look forward to reading his judgments, which I am expecting to be somewhere between MacFarlane LJ and Munby LJ in style and analysis  (so no pressure there).

The promotion of course does remove the one answer that a family lawyer has been able to give with certainty to one legal question over the last few years, as opposed to our traditional humming and hawing, and “it depends”.

 When asked “I’ve got a case where I need a silk, who should I go to?”  the  answer I have given every single time, has been Stephen Cobb, and now I need a new answer to that question.

I am faintly disappointed that I will now never be able to tell my story, which has a festive overtone, of Stephen Cobb, a Guardian and an ill-judged Christmas present.  But no doubt imaginations more powerful than mine can invent your own story. (Just so that you know, Mr Cobb was the undoubted good guy in the story)

I’ve drawn sporting parallels before in this blog, and the one that springs to mind for Mr Cobb QC is that if David Gower had married complete application and discipline to his talent, and come to the family bar, he would have been pretty similar to Mr Cobb QC.  

 

One of the only barristers I have ever sat and listened to (in the golden days when lawyers would go to Court with counsel, and I thank my lucky stars that I began my career being exposed to advocacy of a multitude of styles and techniques and had two years of listening to people do it very well before I had to start finding my own way),  who even when he was against you and dismembering your case [as he did to me very often], you were a little sad to see him sit back down. You don’t get many barristers who make you think “I wish they’d kept talking a bit longer”, and he was one of them.

[Just so that you all know, I don't get up to the High Court any more, except when the moon is blue, so this is how I genuinely feel, rather than any favour currying. In fact, it is my general desire and ambition to keep my cases in local Courts where the staff answer the phone, tell you things, don't ship you to the other end of the country on a day's notice, and don't lose every document that ever comes near them, so every High Court case is now a pain in the neck, rather than the exciting ego trip they used to be when I was young and full of enthusiasm]

 

It has never been difficult to distinguish between a Scotsman with a grievance and a ray of sunshine

 From the always smashing P G Wodehouse, and apologies to any Scottish readers, it is not intended to be a slight on your great nation, without whose many fine citizens I would be still walking on cobbles rather than driving on tarmac and would be without tea, trains, shortbread, Irn-Bru, golf and television, some of the worlds finest ever creations; which make our own English contributions of warm beer, morris dancing, queueing and committees seem somewhat shabby in comparison.   [Hopefully war between Suesspicious Minds and the fine fine people of Scotland has now been averted]

The title is more of a lead-in to the fact that you can always, as a family lawyer, tell when two local authority lawyers are attending court on the same case, representing two different local authorities. 

They don’t like being in competition with one another, you see.  When you represent a local authority, you normally sit at one distinct end of the Court room, and you do all the introductions and niceties and open the case, and when there are two of you, it just doesn’t feel right.  It is like being on the flight deck of a 747 as two men in hats simultaneously try to say “Bing bong, this is your captain speaking”

Being in the same Court room not only as another Local Authority lawyer, but one whose entire motivation and plan for the day involves leaving Court with one hot potato having been moved from their own authority to your own, tends to make for a rather tense and strained atmosphere.

It is rather like watching Lee Van Cleef and Clint Eastwood size each other up from opposite sides of the street, whilst noting that the clock is about to strike high noon.

 So, just as the title suggests, it is never difficult to distinguish between two local authority lawyers about to have a designated authority row, and a pair of happy sunbeams.

 Most of the really good knock-down rows I have had in Courts have been with other local authorities, rather than against other parties. And they are nearly always on the subject of designated authority.  

The Court of Appeal dealt with this in RE  Suffolk County Council and Nottinghamshire County Council 2012

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1640.html

I will firstly declare a tiny interest, since the Judge at first instance was Her Honour Judge Butler QC, who was enormously kind to me in my early days and is probably largely responsible for every shred of good qualities that I have as a lawyer and cannot be blamed for any of the bad ones. So it pains me to see her being appealed, even more so to be successfully appealed.

Anyway, this case relates to Special Guardianship Orders, and the vexed problem of who picks up the responsibility and tab, after the case is ended.

In an ideal world, everyone involved stays put and lives in the same Local Authority throughout, and the applicant Local Authority swallow the SGO and the ongoing support package.

But, where the recipient of the SGO lives somewhere else, than the issue arises as to whether Local Authority A  (who started the case) or Local Authority B (who happen to be where the carer lives) get the order.

The law, as so often, tries to be helpful, but just promotes more litigation.

In short, it says “The LA who is responsible for the SGO and provision of support is the one where the carer resides  UNLESS the child was being looked after just before the SGO was made”

Sadly, that just opens up our traditional can of worms, as we all know that the world of whether a relative is caring for the child ON BEHALF of the LA (making the child looked after) or ON BEHALF of the family (making the child not looked after) is just as vexed.

Thankfully here, the two local authorities took the unusual and giddy step of actually talking with one another, with a view to sorting this out, and were therefore able at the Court of Appeal hearing to have a joint and coherent plan for delivering services to the family. The Court of Appeal missed a trick here in not summoning the Prime Minster to Court to alert him of this and inviting him to strike up some new sort of medals for valour for those members of the Local Authorities who had first dared to suggest this novel and dangerous approach.

But some useful footnotes were given by the Court of Appeal. And some of their observations are distinctly useful to Local Authority lawyers. [Underlining of those is mine]

  1. FINAL OBSERVATIONS
  1. As has already been intimated, out of area placements in prospective special guardianship cases may very well become much more common. A number of matters have arisen in this case which may well arise elsewhere. A few reflections may therefore not be out of place. It was for this reason that we decided to put our judgment in writing.
  1. The law both prescribes the incidence of responsibility and provides for a high degree of flexibility. If a child is a looked after child then responsibility lies with that authority; if not, it lies with the authority in whose area the child resides. It is therefore of critical importance when a child is placed out of area to have regard as to whether a child should or will remain looked after (i.e. under an interim care order or accommodated) or not (i.e. under a residence order). At the same time the local authorities involved should co-operate from the earliest stage in deciding who will in fact execute the statutory duties that arise and who will fund that work. Local authorities have powers to make sensible arrangements between themselves wherever primary legal responsibility may in fact lie.
  1. The role of the court should also be carefully considered. Section 14F imposes duties on a local authority but it does not empower the family court to direct how or (in some aspects) even whether such duties are to be performed. Moreover the statute gives the court no power to make directions as to payment of money or provision of services. Of course judges may properly express views to local authorities and are entitled no doubt to expect that they will receive serious consideration (just as judges can and do express views about adoption and care plans) and of course it is only the judge who in the end can make the special guardianship order.
  1. Special guardianship is potentially a very effective way of securing kinship care without on the one hand distorting family structures by adoption and without on the other leaving the child as a child in care with all the consequences so often resented by a growing child who feels stigmatised. It is essential both that local authorities in ‘out of area’ placements should co-operate with each other as early in the process as is practicable in the particular case and also that the court is clear about its role and powers. They may not be as extensive as is thought or as a judge may wish but I have no reason to think that the judge cannot make a valuable contribution to the process as is often done in both adoption and care cases where the court has the confidence of the parties involved.

This is the judgment of the Court.

 

[My other particular favourite P G Wodehouse quote, and one that I am afraid I have used from time to time is  "Mistaking it for a peach, Bingo Little had picked a lemon in the garden of love" ]

 

 

What does Donald Rumsfeld have to do with paediatric head injuries?

Well, you’d surely say, if asked to find the link between Donald Rumsfeld and paediatric head injuries, that it would be “was he dropped on his head as a child?”  

 

 But no, it would be the Court of Appeal decision in Re M (children) 2012

 donald-rumsfeld

It has been a year of the Court of Appeal moving away from the concept of medicine being infallible and towards what is described in this case as the “Donald Rumsfeld question”   – i.e that  “there are known knowns; there are things we know that we know. There are known unknowns; that is to say there are things that, we now know we don’t know.
But there are also unknown unknowns – there are things we do not know we don’t know”

 

 

I remember that being scoffed at, when Rumsfeld said it, but it begins to make sense when you look at it carefully.

 

This is the case of  Re M (Children) 2012 , yet another Court of Appeal case in 2012 on complex medical injuries where the initial finding of non-accidental injury was overturned on appeal (though in this one, the case was submitted for re-hearing, rather than the Court of Appeal finding that the injuries were accidental)

 

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1710.html

 

 

It is a good start for a law geek when the Court of Appeal judgment has almost immediately a sub-heading labelled “the conundrum”  – which produced an almost Pavlovian reaction in Suesspicious Minds, who lives for this sort of thing.

 

It was not and is not disputed that when M was admitted to hospital on 3 August 2011, when she was just five months old, she had three (possibly four) fractured ribs, those fractures having occurred on at least two occasions, and fractures to her skull. What lifts this case out of the ordinary – indeed makes it unprecedented and thus unique in the experience of the very distinguished experts who gave evidence – is that although M had indubitably suffered complex bilateral skull fractures, described by one of the experts as “spectacular”, she had not suffered the very serious brain injuries which would be expected to accompany fractures of such severity.

 

At the very beginning of her judgment the judge described the case as “most unusual and difficult.” She explained why (paragraph 2):

“I should record at the outset that the skull fractures are spectacular, so complex and extensive that they have been described by the experts as beyond anything they have seen before in a child of M’s age in their considerable collective experience. Her clinical presentation, in that she appeared to be reasonably well and suffering no apparent pain or neurological effects, was not just unusual in the circumstances, but inexplicable. This conundrum has perplexed the experts involved and goes to the heart of this case.”

 

The court at first instance had brought on board some of the heaviest hitters in forensic medicine *, and had exhaustively explored the possibility that the child had some form of rare genetic disorder, but there was no such disorder found.

 

*Dr Stephen Chapman, Consultant Paediatric Radiologist at Birmingham Children’s Hospital (report dated 5 November 2011, letter dated 4 December 2011 and addendum report dated 28 January 2012), Mr Peter Richards, Consultant Paediatric Neurosurgeon at the John Radcliffe Hospital, Oxford (report dated 31 March 2012), Dr Katharine Halliday, Consultant Paediatric Radiologist at University Hospital Nottingham (report dated 12 April 2012) and Professor Nicholas Bishop, Professor of Paediatric Bone Disease at the University of Sheffield and Honorary Consultant Paediatrician at the Sheffield Children’s NHS Trust (report dated 8 May 2012 and addendum report dated 11 May 2012).   As I said, heavy hitters.

 

But it is telling when these eminent doctors talk about there being nothing in their experience, or in the medical histories of skull fractures as spectacular as these – the one comparable episode of injury that can be found was of a person who inadvertently walked into moving helicopter rotor blades.

 

So, there was no good explanation for the skull fractures – and I don’t mean in the ‘there’s no good accidental explanation so trauma” sense, but in the “I can’t work out how these injuries could possibly have been inflicted” sense; which is much more problematic in a finding of fact hearing.

 

 

Understandably, once the report from Professor Bishop had established that there was no inherent problem with the child’s bones that would account for organic causes of the spectacular fractures, an experts meeting was assembled.

 

  1. I appreciate that “what is said at an experts’ meeting is not strictly evidence in the case” (per McFarlane J in Oxfordshire County Council v DP, RS & BS [2005] EWHC 2156 (Fam), [2008] 2 FLR 1708, para 109), though it can of course be put in cross-examination or re-examination. But it is convenient, setting the scene for the evidence that was given by the experts at the trial, to see how this aspect of the matter developed at the experts’ meeting on 15 May 2012.
  1. The issue was first discussed before Dr Halliday joined the meeting. Mr Richards said:

“I can only speak about the head injuries, but there was a lump on the head, very extensive – I would call spectacular – skull fracturing, but no evidence of any injuries to the brain substance or bleeding inside the head.”

Asked whether they all agreed that there were “extensive skull fractures, with minimal brain injury seen on the films?”, both Mr Richards said Dr Chapman said “Yes”. Professor Bishop said:

“I’d agree the extensive skull fractures. I defer to Dr Chapman and Mr Richards about the degree of brain injury. It’s not my area of expertise.”

A little later Mr Richards said this:

“Well, there must have been an impact against a hard surface or crushing of the head. What is unusual – the question of force is difficult, and what is unusual is to have such a degree of skull fracturing without any brain injury. But the fact there are fractures – they don’t occur spontaneously; there must have been some form of impact or crushing of the head … If the head is crushed so much that you get such significant skull fracturing, you’d get some damage to the underlying brain as well. Provided that we’re dealing with normal skull bone, and this is more Professor Bishop’s field.”

The following interchange then followed:

“NB I think from my perspective, there is no doubt in my mind that this child’s skeleton is entirely normal. I’ve never seen fracturing like this even in a child with abnormal bones. And we see children who’ve got very abnormal bones indeed – we simply don’t see this degree of skull fracturing. With normal —

PR So, Professor Bishop, would you agree that this in my mind is spectacular fracturing?

NB I would say it’s the most extensive skull fracture I have ever seen, irrespective of whether there’s an underlying brain injury or not. So —

PR Which is one of the difficulties for me, because yes, I’ve seen extensive fracturing like this before. The last time I remember seeing it was when someone walked into a rotating helicopter tail blade, and got that extensive fracturing, but did not survive very long … And that is unusual, the fact that there is very extensive fracturing, and yet no significant injury of radiology and no apparent clinical injury at all, no clinical disturbance whatsoever.

NB As I say, it’s not accompanied by changes in other parts of the skeleton that would lead my to believe that there’s any underlying bone disease. And having reviewed the child recently, only literally last week, the skeleton looks entirely normal to me, both clinically and radiologically.”

Dr Chapman agreed:

“I think the mechanism’s either going to be crushing or multiple impacts, and I don’t really know what is the actual mechanism … it could be either [one massive impact to the top of the head, but possibly two impacts each side of the head] … We’ve all said this is an absolutely spectacular fracture, and to say that it could have occurred from one impact alone is again I think speculation, because I don’t think any of us have that experience.”

Professor Bishop said “I’d agree with that.” Asked, “So it would be very difficult to speculate as to what it was that caused the injury?”, Mr Richards said:

“Yes. And of course nobody has done research on living infants to fracture their skulls, to see what happens. The only research really that’s been done on fractured skulls and what causes them is that rather unpleasant research of dropping dead babies before you do a post mortem on them, and seeing whether you fracture their skulls.”

  1. The discussion returned to this topic after Dr Halliday came on line. Mr Richards said “The degree of fracturing we all consider is spectacular, outside of our usual expertise”, to which Dr Halliday said “Yes.” Mr Richards continued, “it’s odd that there’s such extensive fracturing, not much scalp swelling, and a seemingly happy baby” to which Dr Halliday responded:

“And no brain injury, yes. Yes, it is odd.”

  1. The significance of this discussion for present purposes is perhaps two-fold. First, all the experts had addressed this issue during the experts’ meeting, so it was not coming to them ‘out of the blue’ at the trial. Second, the experts had been left baffled at the end of the meeting, so it is reasonable to imagine that they were thinking about it in the three weeks that elapsed between the experts’ meeting and the trial.

 

 

So far as the rib fractures were concerned, the expert opinion was fairly straightforward – there was no accidental explanation for them, and there was nothing about their presentation that suggested in any way that they were caused in any way other than by non-accidental trauma.

 

The problem the Judge found herself in was with experts who were clearly baffled by the skull fractures, and whether it was possible to draw a line under that, and make findings about the rib fractures. Or, whether as the parents argued, there was such huge doubt about the skull fracture and how it could be caused at all  (much wider than the accident/non-accident issue, but how they could have come to be at all, particularly when combined with the lack of injury to the brain), that this child must be a medical first with something unknown to current science and therefore something in the way the bones in her fractured was beyond medical science, so not safe to assume anything about how her ribs were fractured.

 

The Judge was further troubled by the evidence given by the parents and clearly found it to be flawed in a number of regards. 

 

Let’s get to Donald Rumsfeld.  (Not a sentence I ever imagined I would type)

 

  1. Mr Richards was cross-examined by Mr Anthony Kirk QC on behalf of the mother:

“Mr Kirk … There is something rather unusual and something rather puzzling about this child’s presentation and the fractures that she has sustained.

Mr Richards Yes. Taking all the aspects – if we look at the three aspects of the fractures, so the fractures themselves, her response to the fractures and the scalp swelling associated with these fractures, either her bones fracture from very minor trauma and that is why there is severe fracturing but very little scalp swelling, or her response to it in terms of pain and suffering is highly abnormal. The whole picture is, with that degree of scalp swelling I would have expected significant brain injury and if there was not significant brain injury and she was conscious I would have expected to be in great pain and disturbance and, given the degree of fracturing, with normal force required to cause that fracturing, I would have expected a lot of scalp swelling.

Mr Kirk Yes. Could these complex fractures have been caused, in M’s case, by a relatively minor trauma?

Mr Richards I would not have expected it to have occurred from a minor trauma if her skull was completely normal but that is a question in my mind. Is her skull in some way abnormal so that she gets these fractures with trauma that would not normally cause these fractures?

Mr Kirk Was that addressed in your experts’ meeting?

Mr Richards It was discussed. Professor Bishop who has looked at the metabolic aspects of bone(?) disease has not been able to identify anything. We have all commented that we have not seen fracturing like this except in very extreme circumstances. I did raise one circumstance where I have seen similar severe fracturing, forgetting the job that her father was doing, but it was an adult injured by a helicopter walking into a rotor blade, a rear rotor blade who had very extensive fracturing and died several hours afterwards which is the kind of injury that I have encountered if you see this kind of fracturing. So if this kind of fracturing with minimal response were to occur there must be something odd about the bones and Professor Bishop cannot find anything but he did say he has not seen fracturing like this either so why he cannot find any metabolic abnormality to explain it, I still wonder in my mind if there is some explanation we are not capable of finding as doctors.

Mr Kirk Thank you. And we cannot rule that out either, Mr Richards, can we?

Mr Richards Oh, absolutely. This is (inaudible) unprecedented in the experience of someone like myself who has been in neurosurgery for nearly thirty years, Steven Chapman who has been a radiologist for many, many years, Professor Bishop who has specialised in bone abnormalities and between us we have got a lot of years where we have seen lots of things but we have not seen this with such a minimum disturbance to a child.”

  1. Mr Richards was then cross-examined by Mr Frank Feehan QC on behalf of the father. I need not set it all out, for necessarily it traversed ground already covered by Mr Kirk:

“Mr Feehan … the problem is, as you see it, that there is no such brain injury. You have looked at the scans and you, and in fact nobody, sees anything with regard to brain injury in this case?

Mr Richards That is correct. And it is not just on the inside of the brain; the outside, her scalp, does not seem to have reacted in a way you would normally expect, this sort of high force injury that you would expect to cause that fracturing.

Mr Feehan In your experience, where someone has suffered an insult to the head of this sort on a normal skull and therefore has suffered brain injury in almost every case, how long do the symptoms of that brain injury last, if they survive?

Mr Richards Well, if they survive … Not many with this degree of injury, fracturing and damage do survive. I had a recent one which was a very great surprise because the initial scan gave us the impression she was not going to survive. She was run over by a Ford Fiesta in a supermarket car park. She got under the car, it drove over her head, the people screamed at the guy to stop so he reversed and did it again and she spent three or four days on a ventilator in intensive care. We at one stage thought she would not survive. She did survive and recovered. She was in hospital for about a month to six weeks before she could go home.

Mr Feehan Essentially, it all comes down to this, does it not, that given the clinical picture and the timing of this the notion of inflicted injury without other injuries such as massive amounts of other broken bones or brain injury just does not fit?

Mr Richards That is correct. It does not add up. To me as a simple(?) surgeon, it suggests there is something wrong with this young lady’s skull. It is unduly fragile which is why I suggested that we needed a metabolic expert to look into this and he has not been able to identify it but it still does not mean to me that this is a normal skull and as we do in medicine, we sometimes show things to colleagues, not with the full story, not with any names. I showed the CT scans to one of my senior colleagues. There are four of us in the department and the one who is just below me in terms of age and I said to him “Look at this scan. This is a child with no brain injury and very little scalp swelling” and he immediately said “There is something wrong with the bones, isn’t there?” … This brings to mind for me that a man of Professor Bishop’s extreme skill has not been able to find anything …”

  1. Mr Feehan returned to the point towards the end of his cross-examination:

“Mr Feehan … we are simply left with this then, that had this been a deliberately inflicted injury causing these fractures in a normal skull, five days before presentation to hospital, first of all your view is she may well not have survived and even if she had survived she would simply not have presented in the way that she did.

Mr Richards Yes, I think she would have … again, it is odd that she does not have so much scalp swelling with these degree of fractures. Even if she had got away with the brain, there is still the soft tissue injury you would expect to be associated with it and you can have fractures all over the head, while you have just one small area of slight swelling, as that is all you see radiologically, why not over the whole of the head, unless the trauma that caused these fractures was less than you would normally expect in these fractures and that is why the response to it in the brain, the patient and the scalp is much less.”

  1. Dr Halliday was cross-examined by Mr Kirk. She agreed with what Mr Richards had said at the end of his cross-examination on this point by Mr Kirk (see paragraph 16 above). She went on:

“l think there are several things about this fracture which are extremely unusual. One is its severity. The other is the fact that it is not associated with any brain injury and the third thing which is unusual is that it has … the amount of soft tissue swelling on the CT scan is not very much for such a severe fracture and I think all of us are in agreement that we think these things are very unusual. And can’t really explain them.”

Asked by Mr Kirk whether this was “without parallel in terms of medical reporting and medical annals” she replied:

“Yes, yes, yes they are very unusual. Very unusual.”

  1. Dr Halliday was cross-examined by Mr Feehan. Referring to Mr Richards she said:

“l wouldn’t say M’s skull can’t be normal as you know we doctors don’t like saying things like that, we just say it is very, very unusual so I agree entirely with him that it is very, very unusual. Does it mean that M’s skull cannot be normal? No I don’t think it means that, I just think she has had a very unusual injury. There is some … either … I mean it could be that her skull is abnormal or it could be that she has … there is some sort of quirk of mechanics about the way she has fallen or that she has had several blows or … I think there are a number of explanations but they are extremely unusual.”

  1. Dr Chapman was cross-examined on the point by Mr Feehan:

“Mr Feehan Dr Richards said that his experience of a child suffering sufficient trauma to cause these skull fractures would mean that that child, again, if that child survived, that child would be in intensive care for upwards of two weeks and in hospital, in his experience, for at least a month, if not longer, and yet here we know there was a child who presented to hospital as happy, playful and alert. How does that fit with the kind of forces you describe as being necessary to cause these skull fractures?

Dr Chapman Well, if Mr Richards is right in that the child would be ill for many, many days, and clearly wasn’t upset and ill at the time she was presented for medical attention on the 3rd, then that would imply that the injury occurred nearer to 26th July than it did to 3rd August, and (inaudible) …

Mr Feehan I’ll ask you to pause there because it was clear from Mr Richards’ evidence that the timeframe was simply insufficient to allow recovery. Even the wider timeframe was insufficient to allow recovery of a child to the state seen by 3rd August in this child. Now, let me say this, again, you are a radiologist and he is a clinician in that sense. He sees the children himself and has experience of how children respond to these sorts of injuries. Given that’s his evidence, how does it fit with the level of trauma that you say is required?

Dr Chapman I’m not sure how to answer that.”

Towards the end of cross-examination, Dr Chapman said this:

“Well, I mean, you could argue that (inaudible) that there are an awful lot of inexplicable things in this child.”

And then at the very end:

“Mr Feehan And you, however, Dr Chapman, will be aware from your experience, and no doubt from other cases, that, in giving evidence, you have to at least acknowledge the real possibility that something has happened which simply you can’t explain.

Dr Chapman Of course.”

  1. Cross-examined by Mr Kirk, Dr Chapman associated himself with what Mr Richards had said at the end of his cross-examination on this point by Mr Kirk.
  1. Professor Bishop was cross-examined by Mr Kirk:

“Mr Kirk These fractures are, the skull fractures I’m talking about, are indeed highly unusual, if not, dare I go as far as to say, in the annals of medical science, unique in one so young?

Professor Bishop (inaudible) I certainly have not seen anything similar in my clinical practice, focusing on children with bone disease, in the last 16/17 years. That is not to say that it can’t occur and hasn’t occurred in other places and I have simply not been aware of publications that might record such fracturing. But talking with Dr Chapman and Mr Richards, who have also had a lot of experience with looking at x-rays and with traumatic injuries to the skull, they were very much of the same view, that these were exceptionally extensive fractures. And my understanding is that it was for that reason that people were concerned there might be an underlying metabolic bone disease that could give rise to such appearances and that was why I was asked to see M and examine her.”

A little later there was this interchange:

“Mr Kirk … How can one say that this little girl, M, is not, in fact, exhibiting the signs of some new or perhaps hitherto unknown medical disorder in the light of the fractures and her presentation?

Professor Bishop Thank you. Yes. That, I suppose, is a Donald Rumsfeld question. We don’t know what we don’t know. She certainly … there is a possibility that she could have a hitherto unknown and undiagnosed metabolic bone disorder. However, in my experience, children who have such a disorder usually continue to manifest problems associated with such a disorder throughout their life, albeit more frequently at some times in their lives than at other times. And my expectation, based on my clinical practice over the 15 years, would be that we would still be able to discern, at the age of a year, some evidence of underlying bone fragility problem at the age of a year in a child who suffered fractures earlier during infancy. And that’s, as I say, based on our clinical experience on my understanding of the literature and many discussions over the years with friends and colleagues who are also involved in the field. Of course, it is still possible that at the end of all of that this is something new that nobody has ever come across before, but I would still expect, as I say, to see some other evidence of a persisting problem with the bones had the skeleton been so fragile that it had given rise both to the rib fractures and the skull fracturing that were observed originally.

Mr Kirk Thank you for that, Professor Bishop, but just by way of, as it were, come-back or a question, further question on that, if this is, and I use the words ‘completely new and unchartered territory’, one surely can’t be so, as it were, positive in terms of your predictions and predictors, what would you say in answer to that?

Professor Bishop I think it’s absolutely true that every year that goes by we find some new disorder or other that can give rise to a problem with your bones, but it’s a question of balance of probabilities here and the number of children that we have seen over the years who present in the way that M presented and who’ve had bone fragility problems that give rise to such fractures and who then never exhibit any further features of bone fragility subsequently, that, in my experience, would be unique.

Mr Kirk And just, I think, finally this, if I may, you talk about M’s presentation. Professor Bishop, I don’t want to take you back through all of that because her Honour, the court and others have heard from other experts, I described her presentation earlier perhaps as being unique, but certainly the fact that this child remained alive with no massive swelling to the scalp, no significant brain injury and handled perfectly very well in hospital could themselves indeed be described as unique features; would you agree with me on that?

Professor Bishop I would agree in terms of it’s surprising that M suffered no brain injury given the extent of her skull fracture. But, as I said before, that degree of skull fracturing in itself is very unusual, in fact, unique in my experience, and if … I don’t know what else to say, really, other than yes, it’s a very unusual presentation. But, going back to what I said previously, if there was any specific problems with the bones that was likely to give rise to that degree of fracturing I would expect to see some evidence of consistence of that fracturing and further fracturing beyond the time when she first presented to hospital. That would be more in keeping with my clinical experience of how such disease tend to manifest themselves not just at the time of presentation but subsequently as well.”

  1. Cross-examined by Mr Feehan, Professsor Bishop said this:

“in my previous experience of similar matters it is surprising that M did not suffer any brain tissue injury commensurate with the degree of fracturing that she has.”

He was asked by Mr Feehan, “how can you explain the extent of skull fractures, given the lack of brain injury?” He replied:

“Well, I defer to Mr Richards in terms of his experience of these matters, and as I say, it is not my area of expertise drawing conclusions from the extent of skull fracturing that’s unlikely to be a brain injury. One might postulate if one was speculating here that M has been very fortunate in that the force to which her head was subjected result in fracturing which dissipated the force of the impact or whatever it was that caused the fracturing sufficiently that the brain was relatively protected and she is indeed very fortunate in that regard. But that is speculation on my part. I don’t have any good answer for you as to why this degree of fracturing has not resulted in more extensive intracranial injury.”

His response to the next question was:

“I will defer to Mr Richards in terms of his much more extensive experience of these matters, and I think I’d have to refer you back to my previous answer that if you’ve got energy applied to a bone which is sufficient to fracture it, effectively what you are doing when you fracture it is to dissipate the energy but the bone, if absorbing some of that energy and then it’s breaking when the energy exceeds its capacity to absorb that … sorry, when the energy of the force exceeds the bone’s capacity to absorb it. Now, why in this particular circumstance bone has fractured in the way that it has done I can’t answer and I can’t begin to speculate on the amount of force that might have been required to cause such a fracture. What I can say is that M’s skeleton, as it appeared to me on 8th May, was normal, and there was nothing that I could find to give me a reason to suspect that her bones were other than normal.”

He was asked by Mr Feehan “what else might be an explanation for what we see?” Professor Bishop’s answer was “I think you are asking me to speculate beyond the limits of my expertise

 

 

And this, in my humble opinion, is a truly amazing illustration of how cases can be transformed by the hearing of oral evidence. This is not witnesses being tricked or bamboozled, but the skilful drawing out of the awful truth that the doctors simply could not explain what had happened here.

 

With that in mind, whilst the Court were very sympathetic towards the trial judge it is not surprising that they had major problems with findings of fact being made about the injuries being caused by the parents [I think that the one fairly inexplicable thing is why a case like this hadn’t been pushed up to the High Court, particularly after the experts meeting minutes were available, but no criticism is made of anyone for that]

 

  1.  I should at once pay tribute to the care and skill with which Judge Marshall went about the exceptionally difficult task facing her. Her judgment, if I may say so, is impressive and, in all respects save one, compelling. But for one crucial factor it would, I suspect, have been impregnable. If, in addition to the other factures, M had had only a simple skull fracture then the judge’s findings would in all probability have been unassailable.
  1. As it is, many of her findings cannot, I suspect, sensibly be challenged. Thus, even allowing for the fact that M’s presentation was medically inexplicable, I think Mr Feehan would have faced a very uphill task if he had tried to argue (though he did not need to) that the judge was not entitled to conclude, as she did (paragraph 84), that:

“This is not a case where I find the parents accounts so compelling or reliable that I am persuaded to accept what they say and reject well-founded medical evidence where it does not fit.”

That was not a finding driven by the medical frame of reference; it was, in large part, as the judgment explains, based on difficulties in the parents’ own evidence. Similarly, it is difficult to challenge what the judge said a little later (paragraph 85):

“I conclude that the evidence is weighted in favour of a finding that it is more likely than not that the parents have not told this court the truth about what has happened to M.”

  1. But, of course, the case was not as simple as that.
  1. For present purposes one can, I think, start with two propositions which I shall assume, even if not necessarily accepting: first, that the judge, for the reasons she gave, was entitled to rely on Professor Bishop’s evidence; second, and again for the reasons she gave, that the judge was entitled to reject the parents’ evidence. But where did this leave her? Facing the central conundrum that all the experts were baffled – none could explain M’s presentation in the light of the skull fractures – and, as I have already pointed out, that her acceptance of Professor Bishop’s evidence did not resolve the case, it made it more difficult.
  1. In addressing that central conundrum Judge Marshall, in my judgment, fell into error. One can see the three facets of that error developing gradually through the key passages in her judgment. In the first place (see paragraphs 49, 61), by focusing on Mr Richards she tended to downplay the fact that, as she had previously recognised (paragraphs 2, 48), all the experts were baffled. Second (see paragraphs 49, 79), she failed to appreciate (or if she did appreciate it she failed to address) the fact that her acceptance of Professor Bishop’s evidence did not resolve the case but made it more difficult. Third, and crucially (see paragraph 86), she failed to explain how she was able to move direct from acceptance that:

“How M’s skull fractures were caused remains a mystery, but there must, of course, be an explanation, albeit at this stage unknown”,

to a finding in the very next sentence that:

“The fact that the parents have not provided a truthful account supports a finding on the evidence, including the drawing of reasonable inference, that it is more likely than not that the injuries are non-accidental.”

  1. In relation to this, I should make clear that I cannot accept Ms Judd’s reading of what the judge was saying here. After all, at the very beginning of her judgment (paragraph 2) Judge Marshall had described M’s presentation as “not just unusual … but inexplicable”, and in my judgment she was, for the reasons I have already given, entirely justified in characterising the case in this way. That was, after all, the effect of the expert evidence. She had, correctly, acknowledged (paragraph 48) that all the experts found it a “particularly perplexing and unusual case” and (paragraph 85) that there were features of the case “that are indeed perplexing.” So if, when she was describing causation as a “mystery” and the explanation as “unknown” (paragraph 86), Judge Marshall was meaning no more than that the parents had provided no adequate explanation – and that is not how I read her words given what she had said elsewhere in her judgment – her analysis would be liable to the further criticism that she was at this point simply not engaging at all with the substance of the expert evidence.
  1. There is another difficulty with Judge Marshall’s judgment which in a sense encapsulates all the others. It is to be found in a passage (paragraph 84) that I have already quoted:

“This is not a case where I find the parents accounts so compelling or reliable that I am persuaded to accept what they say and reject well-founded medical evidence where it does not fit. I am not persuaded that this is a case where the court should find that there is something unexplained, beyond current medical knowledge. Father on his own account did not tell the truth … (emphasis added).”

As I have already explained I have no particular difficulty with the first sentence, nor for that matter with the third. But the second sentence, which I have emphasised, presents major difficulties. The judge’s refusal to find that there was “something unexplained, beyond current medical knowledge” was not merely inconsistent with what she had said at the outset of her judgment (paragraph 2) and, as I read it, with what she said only two paragraphs further on (paragraph 86); perhaps more to the point it was inconsistent with the expert evidence. At the very least, it was a finding which, given the expert evidence, required much more explanation, a much more convincing process of reasoning, than is to be found anywhere in the judgment.

  1. In these circumstances I conclude that, for all its many merits, this judgment cannot stand. Judge Marshall has simply not explained how, in the light of the expert evidence, she was able to arrive at her final conclusion. It may be that there was, in the light of the evidence, no way in which the judge could have arrived at her conclusion, though that is not, in my judgment, something we can safely and properly decide for ourselves. But certainly, and it is on this basis that, in my judgment, this appeal must be allowed, the judge has not explained how she arrived at her conclusion. That omission, going to the central issue in the case, is fatal and necessarily vitiates her findings.
  1. Standing back from all the detail it might be said that given this collection of injuries – rib fractures caused on two occasions and very severe skull fractures – arising in circumstances where there is no suggestion that anyone other than the parents (or one of them) could have been responsible, and where the parents’ accounts and explanations have appropriately been rejected, it was open to a judge to find as Judge Marshall did. So, I have little doubt, it would have been if the case had fallen to be determined in accordance with a conventional medical frame of reference. But it did not, for, to repeat the point, so far as the skull fractures were concerned M’s presentation was inexplicable assessed by reference to conventional medical opinion and experience. And it must follow from the inability of conventional learning to explain the skull fractures that the judge’s findings in relation to the rib fractures are also vulnerable. So there is, in my judgment, no scope for drawing a distinction and upholding the judge’s findings in relation to the one whilst upsetting her judgment on the other.

 

 

Well, on the one hand, clearly this case is unique to date in medical science, hence the case might be of limited value, but on the other, it is yet a further piece of argument as to the limitations of what medical knowledge can tell the Court and that even something which seems utterly impossible – that a child can sustain such significant skull fractures that the only comparable example is of a person who had walked into rotating helicopter blades with no organic cause and no accidental explanation but without any culpability, can be possible.

 

Until this case, the Court, and the experts, did not know that this could be a possibility, hence it was something that not only did they not know, but they didn’t know they didn’t know it.

That reminded me of R D Laing, and his Knots poem

 

There is something I don’t know

that I am supposed to know.

I don’t know what it is I don’t know

and yet am supposed to know,

and I feel I look stupid

if I seem both not to know it

and not know what it is I don’t know.

Therefore, I pretend I know it.
 
 

This is nerve-racking

since I don’t know what I must pretend to know.

Therefore I pretend to know everything.

 

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