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Category Archives: fact finding

Guardian neutrality at fact finding hearing – is it right, wrong, or are you neutral about that?

A twitter follower, @dilettantevoice put this one in front of me.

Cumbria County Council v KW 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/26.html

It is a case of a suspected head injury, with the usual classic triumvirate signs.  The case is interesting, from a legal perspective, because of paragraph 58

Having considered the legal framework and surveyed the broad landscape of the evidence I turn now to my findings. I record that the Guardian has thought it appropriate not to advance any submissions on the findings sought by the Local Authority. This is a wide spread practice which I would, for my part, strongly deprecate, in most cases. The importance of strong, intellectually rigorous representation on behalf of the child’s lawyer and his Guardian, has been emphasised regularly see: GW and PW v Oldham MBC [2005] EWCA Civ 1247; Re U (A Child) [2005] 2 FLR 444; Islington LBC v Al-Alas and Rway [2012] 2 FLR 1239. These principles apply just as vigorously, in my judgement, to the fact finding process. A position of neutrality motivated solely by desire to appear independent and objective in the eyes of the parents loses sight of the primary professional obligation to the child. I am aware that others take a different view

 

That isn’t part of the ratio, so isn’t a binding proposition, and you can see that Hayden J even says at the end that he knows that others take a different view.  It is a tricky issue. I’m firmly of the view that the Guardian has an important part to play in a fact-finding hearing, and it isn’t (as some think) a “Deckchair brief” – the Guardian and their representatives have to make sure that they do whatever they can to assist the Court in establishing the truth of what happened to the child – to make sure that the right documents are obtained, that the right experts are asked the right questions, and that all of the proper issues are investigated by the Court. It can, therefore, be a very tough brief, since rather than having a set of questions prepared in advance, the lawyer has to be flexible and fluid and extremely on top of all the detail and attentive to how the evidence develops.

It is vitally important for the child, and their siblings, that the Court comes to the right conclusion – either because the child has been harmed and needs to be kept safe OR because the allegations are not correct and the parents don’t pose a risk and there’s a danger of the child being wrongly separated from a parent. In representing the child, you obviously want that decision to be right and for all the important evidence to be drawn out.

Whether at the conclusion of all of the evidence and in making submissions,  as the Guardian here felt the Guardian should stay neutral, or whether as Hayden J thought the Guardian should pin their colours to the mast, is very difficult.

Looking at things logically, if the Guardian hasn’t played a part in the direct collection of evidence (i.e is not a witness of fact, but of opinion), then is his or her view actually significant? On causation, I mean. Clearly on what risks flow if the allegation is proven, and what should happen next, the Guardian’s opinion is vital. But if all the Guardian is doing is saying, having heard all of the evidence, I believe that mother didn’t do it, or that mother did it, how does that really help the Judge?  So, I’d tend to agree with the Guardian here. I’m sure if the Guardian had very strong views either way and wanted to put them in submissions, that would be okay too, but just of limited evidential value.  Is it wrong to remain neutral though, if that’s the Guardian’s preference?   At a fact finding stage, I’d say that it isn’t wrong.  You can follow the professional obligation to be the voice of the child without making your own quasi-judicial view of the evidence.

 

[If the Guardian is a witness of fact – i.e he or she has some factual information to provide about parental presentation or the relationship observed between parent and child or inconsistencies in accounts they gave to the Guardian, then I think it is more incumbent to come off the fence]

 

In broader terms, this is a case where the medical opinion was that the medical evidence alone would not determine the case. The medical evidence alone could not rule out non-accidental injury, nor could it rule out a benign explanation.  (As the Judge later explained, that did not mean that each of those possibilities was equally possible just that neither was impossible)

 

“All counsel agree that the Court should approach any findings it may make in this case by having regard to the broad canvass of the evidence i.e. the medical evidence; the lay evidence; the social work assessments etc.

In this exercise the Court is entitled to conclude that the medical evidence from each of the disciplines involved may, both individually or collectively, support either of the findings contended for by the parties ( i.e. accident or non accidental head injury).”

There have been quite a few reported cases where the medical evidence points to non-accidental injury but the Court is satisfied from the parents explanation that the parents did not injure the child and makes no finding of abuse. This one is the other way, where the parental evidence  particularly the mother’s evidence and the text messages that she was sending, led the Judge to conclude that the child had been injured by the mother.

An unusual element is the raising of the Japanese Aoki research on head injuries. This is research suggesting that the classic triumvirate can present in an accidental fall from a fairly small height and is thus generally accidental.  This research is not accepted by experts outside of Japan (even the many doctors who suggest that shaking injuries are caused by less trauma than commonly supposed don’t subscribe to it.)

  • as the medical profession has also impressed upon me in the past, if low level falls in infants were associated with SDH, retinal haemorrhages and/or transient cerebral irritation or encephalothopy then such might be seen clinically, they are not. This is the primary basis, as I understand it, upon which the medical profession considers it unlikely that low level falls cause fresh subdural and retinal haemorrhaging. Moreover, as Mr Richards identifies, the scanning of children following relatively minor trauma supports the opposite view, i.e. that such is unlikely to cause retinal or subdural bleeding. Mr Richards develops his analysis thus:

“On the basis of the appearances of the subdural haemorrhage, the acute traumatic effusion and, although I would defer to an ophthalmologist, the retinal haemorrhages, I do not from a neurosurgical perspective think it is possible to determine which is the correct answer. Infants cannot be experimented on in laboratories to determine what forces are required to cause subdural haemorrhaging, acute traumatic effusion and retinal haemorrhaging. Studies where infants are routinely scanned even if there is no clinical indication to do so have not been carried out. It is therefore possible that acute subdural haemorrhage and retinal haemorrhaging following very minor trauma is more common than we think. Nobody knows. On the basis of those children who are scanned following relatively minor trauma it is thought unlikely to cause fresh subdural bleeding, acute traumatic effusion and retinal haemorrhages. However, we do not know this with scientific certainty.

2.8 There has been some publications from Japan where children who are alleged to have fallen backwards from Japanese floor-based changing mats have suffered significant head injury with severe brain disturbance, seizures, subdural haemorrhages and retinal haemorrhages being identified (Aoki 1984). Many outside of Japan consider these publications as indicative of a cultural resistance to accepting the concept of non-accidental inflicted injury and that the cases described as occurring as a result of low level falls were, in fact, missed cases of non-accidental injury. However, the Japanese authors maintain their position that the significant injuries were caused by low level falls. Similar publications have not been generated outside of Japan.”

  • It is my understanding that the Aoki (1984) research is regarded by mainstream medical practitioners as deficient in its technique, methodology and professional objectivity. I can think of no case in the last 20 years (in the UK) where this research has been relied on. Mr Richards articulates the central criticism made of the research as a cultural resistance, in Japan, to the very concept of non accidental injury. He does not, however, directly associate himself with those criticisms. Indeed he asserts that the Japanese authors maintain their position. I am surprised that this paragraph has been included within the report neither can I understand what it is intended to establish by scientific reasoning.

 

I haven’t seen the Aoki research cited in any shaking injury or head injury case either, so it was new to me.  It didn’t go down very well.

 

Whilst there is undoubtedly a place to stimulate dialectical argument on these challenging issues, it is not in an expert report, in proceedings where the welfare of children is the paramount consideration. Whilst the Court must review the differential diagnostic process in order to reach its own conclusion i.e. ‘diagnosis by exclusion’ based on ‘the complete clinical scenario and all the evidence’ (see Dr. Newman, para 14 above) and though it is important to recognise the inevitable ‘unknowns’ in professional understanding, these important points are weakened, not reinforced, by elliptical references to controversial research. In addition, there is a danger that social work professionals and others might misinterpret the information in such a way as to grant it greater significance than it can support. Ms. Heaton QC, on behalf of the mother, distances herself from this paragraph entirely and places no reliance on it. She is right to do so.

 

 

Though the Judge made the findings of fact against mother, he declined to make final orders in this case, allowing instead a window of opportunity for work to be done with the parents and specifically for mother to have the chance to reflect and potentially make admissions that would reduce the risks to a manageable level. I think that’s the right approach – I worry about the rigidity of 26 week limits being applied in these cases, just as I worry about Judges rigidly following Ryder LJ’s Court of Appeal line about not having fact finding hearings separately to final decision in all but the most serious of injuries. A reflective space can make a significant difference for families in such cases.

Poppi Worthington – the Judge publishes his decision about what happened to her

 

I think I’ve written nearly as many blog posts about Poppi Worthington’s case as I have about Re D, yesterday’s case.

The most recent Poppi Worthington piece is here

Poppi Worthington – the long-awaited judgment

 

For those who don’t know, Poppi died in December 2012.  The Judge in care proceedings made findings about the causation of her injuries, and what also raised media attention was the Guardian’s list of lessons that ought to be learned or failings by professionals.  Those were all finally aired in the judgment above.  The Coroner  considered the case  in October 2014 and left the causes of the child’s death blank. The police decided not to charge anyone. Father as a result of some of the medical evidence obtained in the police investigation asked the family Court to reopen their findings and look at it again.  And all the way through this, the Press have been asking to be able to publish the judgments, and have had to wait until this.

I have to say that the November judgment contained a peculiar line, that the police took a forensic swab from father’s penis, which led to some obvious worries about what it might have been suspected had happened to poor Poppi, but I didn’t want to speculate about it given that the family were going through a re-run of the family Court fact finding hearing.

The father had obviously hoped and believed that the re-run of the finding of fact hearing would clear his name.

I’m afraid that for me, the detail of the case is too grim for me to want to rake over here. For those who want to read it, it is here.

F v Cumbria County Council and M (fact-finding no 2) 2016

http://www.bailii.org/ew/cases/EWHC/Fam/2016/14.html

 

The conclusion of the fact finding was this:-

  1. For the court to conduct a further hearing in a case of this kind is highly unusual. It does not do so simply because others hold different views to those of a witness whose evidence has been accepted. This further hearing took place because it was asserted that there was evidence capable of establishing an alternative plausible hypothesis for the bleeding, namely that it may have come from congested blood vessels that had been affected by a viral infection. But even before the hearing began, that assertion had vanished like frost in May.
  2. In conclusion, stepping back and reviewing the evidence as a whole, I arrive at the same view as I expressed at paragraph 142 of the previous judgment: Shorn to its essentials, the situation is one in which a healthy child with no medical condition or illness was put to bed by her mother one evening and brought downstairs eight hours later by her father in a lifeless state and with troubling injuries, most obviously significant bleeding from the anus. Careful assessment of the meticulous pathological and paediatric evidence has clearly established that the injuries were the result of trauma from outside the body.
  3. My finding at paragraph 152 was that the father perpetrated a penetrative anal assault on Poppi, either using his penis or some other unidentified object. That remains my conclusion. Some witnesses at this hearing have expressed the view that penetration with a penis would have been expected to cause more obvious injuries. That may be so, but the evidence does not exclude any one of a number of distressing possibilities. As I said before, it is not possible to reconstruct the exact sequence of events that led to Poppi’s collapse without a truthful account from the father.

 

Reporting restrictions still apply on naming Poppi’s siblings. The Press access to this particular hearing was unprecedented, giving them access to documents and reports and even allowing for daily reporting and tweeting about the ongoing case provided it was done after the end of the Court day. The Judge thanked the Press for their responsible behaviour.

 

  1. The ability of the media to report a hearing of this kind on a day-to-day basis is unusual and the arrangements here are probably unprecedented. At the outset, ground rules were discussed and established, as follows:

    1. The reporting restriction order made on 11 July 2014 and varied on 14 January 2015 remains in effect. Copies have been provided.

    2. The hearing is taking place in private. Accredited media representatives may attend and are asked to sign in on a daily basis.

    3. Any media representative who attends will be provided with the full 2014 judgment, the medical reports, the minutes of the experts’ meetings, the schedules of agreement and disagreement and the summary of medical evidence. These documents are for information, to assist with understanding the course of the hearing, and they are not for publication. They can be removed from court but they are to be kept safe and are not to be copied or given to others.

    4. The media may report daily on the proceedings on these conditions:

    (1) Such reporting is subject to any further directions given by the court concerning what can and cannot be published if an issue arises during the course of the hearing.

    (2) Reporting (whether by live reporting, Twitter or otherwise) may not take place until after the court proceedings have concluded on any given day, so that the court has had an opportunity to consider whether any additional directions are required.

    (3) Until the publication of the final judgment, nothing is to be reported that might directly or indirectly indicate the findings that the court made in March 2014.

    5. The final judgment, when available, will be published. At that point the full 2014 judgment will also be published.

    6. Any queries about the ground rules should be addressed to court staff who will consult with the parties and with the court as necessary.

  2. A copy of these rules was placed in the civil jury box where, as it happens, the media sat during the hearing. On the first two days, eight media representatives attended, with the number reducing on subsequent days. On a few occasions, issues about what could or could not be published were raised by a party or a journalist, and these were easily resolved. The opening of the hearing was extensively reported, with less coverage thereafter.
  3. I repeat what I said at the outset of the hearing:“I would like to emphasise that the unusual package of arrangements for this hearing arises from the application of existing law to the exceptionally unusual circumstances of this case. These arrangements do not establish new law or practice in the Family Court and they are not intended to set a precedent for other family cases.”
  4. I nonetheless record that the conduct of the journalists in court was entirely professional and their presence did not adversely affect the hearing; on the contrary, their attendance may be said to have reflected the seriousness of the occasion. The media’s ability to observe the court going about its work in this particular case, and to report and comment on the outcome and the process, has in my view been a valid exercise.

 

Where does that leave things (assuming there’s no appeal)?  Well, almost all of the national press are reporting that the Judge found that Poppi died having been molested in a vile way, and that the person who molested her was her father.

The police have made a decision not to prosecute  (that could potentially be reviewed by the CPS  – though given the press reporting, there might be issues of fair trial now, and of course there are the flaws identified in the last judgment about the process. ).

This particular father, because the child’s full and real  name is in the public domain and the Press took such an interest in the case, is probably now known to everyone in his local community and all of them will have a view about the case, yet he has not been convicted in a criminal court or even charged.  His name is actually within the judgment and naming him is not prohibited.

It is hard, of course, to have any sympathy for someone found to have done what this father was found to have done. It is a very tough test of transparency though – it does feel right that the Press were able to dig into this case and report it accurately and properly, but we do end up with a father who the police did not think it was right to charge being named and shamed in the Press as having done something that every person reading it would think was truly monstrous.

 

The Reporting Restriction Order is plain, and will apply to this blog and commentators. Don’t put anything in your comments that would breach it.

A REPORTING RESTRICTION ORDER IS IN FORCE. IT PROHIBITS THE IDENTIFICATION OF THE SURVIVING CHILDREN OR THE MOTHER, OR THEIR HOMES, SCHOOLS OR NURSERIES. IT DOES NOT PREVENT THE NAMING OF POPPI, OR HER FATHER, OR THE REPORTING OF THE CIRCUMSTANCES OF HER DEATH. THE JUDGE HAS GIVEN PERMISSION FOR THE JUDGMENT (AND ANY OF THE FACTS AND MATTERS CONTAINED IN IT) TO BE PUBLISHED ON CONDITION THAT ALL PERSONS, INCLUDING REPRESENTATIVES OF THE MEDIA, MUST ENSURE THAT THE REPORTING RESTRICTION ORDER IS STRICTLY COMPLIED WITH. FAILURE TO DO SO MAY BE A CONTEMPT OF COURT.

 

High Court Judges have no magic wand

 

 

NOT Mr Justice Holman and friend

Absolutely NOT Mr Justice Holman and friend  (I don’t like the look of New Sooty here – he is frankly quite disturbing, but I wanted a wand picture with Sweep in it to please my Twitter followers)

 

 

 

In Re D (Children) 2015 , Mr Justice Holman made some very important observations about the importance of judicial continuity, particularly in cases where there are intractable difficulties about contact. He also expressed some exasperation that cases often reach a point where the Judges just give up trying and transfer the case to the High Court in the hope that somehow the High Court can magically fix everything.

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/85.html

 

  1. Cases concerning intractable contact, probably more than any other case within the field of family law, require judicial continuity. There tends to be a need for a number of hearings, and it is of the utmost importance that one single judge deals with such a case from first to last so that he or she becomes very familiar with the dynamics of the a case, and the parties, in turn, become familiar with the judge who is dealing with their case. This makes it particularly inappropriate and unsuitable that a case of this kind is ever listed before an occasional visiting High Court judge unless that judge is known to be making repeated return visits to the area in question.
  2. I myself am currently sitting here in Leeds for about three weeks. I am not scheduled to be sitting again in Leeds or anywhere in Yorkshire throughout 2016, and I have no idea where I will be sitting after that. In other words, I cannot give to this case any judicial continuity whatsoever. I am merely, as it were, passing through it. For the reasons I have indicated, that is highly undesirable, and listing officers should take great care to ensure that it does not happen in relation to a case of this kind.
  3. I am aware that in some cases involving intractable contact judges of a lower tier sometimes believe that in some way a High Court judge can bring a new insight to the case, or bring about change which the lower tier judge has been unable to achieve. The fact of the matter is that I do not have any power in relation to this case which is not possessed also by a local circuit judge. I have no “magic wand”, and any advantage in the case being heard by a High Court judge is more than outweighed by the disadvantage that there can be no judicial continuity.

 

This case bizarrely turned on an alleged telephone conversation between mother and the CAFCASS officer, who records in the very short “initial safeguarding enquiries”

 

“[The mother] stated that whilst she was in a relationship with [the father] he once threw [the elder son] across the bedroom on to a mattress whilst he was angry. She stated that he had never been physically violent towards her or the children but he had bullied her through verbal taunts during their relationship. [The mother] stated that [the father] has sleep problems and this has led to him on occasions wrapping blankets around [the elder son’s] head whilst they shared a bed. She also stated that [the father] has also made unwanted sexual advances towards her whilst he has been asleep and she fears that the children would be at risk if he were to be in the sole care of the children at night time.”

 

The mother instead says that she did not say that the father had not been violent to herself or the children and that there were very substantial allegations of domestic violence to be determined.

She had contacted four solicitors, each of whom she says told her that she would be unable to get legal aid because the CAFCASS report said that there was no violence.  [I think there might be more to this than meets the eye, as I’d expect at least one of them to have said “But if you dispute that you said that, and you do say there was Domestic violence, lets have a look at how you evidence it”, but the Judge was satisfied that this is what had happened]

 

When she raised the issues before the Family Court in person, the Judge there relied substantially on the passage quoted above to show that there was no violence, but did not contact the CAFCASS officer to ask for clarification as to why the report says that but mother disputed it, or call the CAFCASS officer to give evidence. Instead, the passage was rather taken as gospel.  Also rather oddly, when hearing the disputed evidence, rather than having the parents in the witness box giving evidence and cross-examining each other, it proceeded more on the basis of a conversation going backwards and forward.

 

  1. The reality of the matter is that the mother makes very considerable allegations of serious aggression and violence by the father towards her, and separately the children, including her daughter. This case is a very serious one. There are very serious allegations and issues at stake; and, subject to means (but she says she is entirely dependent on state benefits), this mother desperately needs proper legal representation and the court desperately needs the mother (and ideally also the father) to be properly legally represented if it is to get to the bottom of the truth of the matter. To date, however, neither parent has had any legal representation.
  2. So it came about that the case was listed for a fact finding hearing before a district judge which took place on 30th and 31st March 2015. Both parents represented themselves. I wish to make crystal clear that in what I am about to say I do not intend any criticism whatsoever of the district judge concerned (whom I do not know) who obviously did his very best in a difficult situation.
  3. The unsatisfactory nature of the hearing perhaps emerges from paragraph 15 of the transcript of his ex tempore judgment in which he says:

    “Because both parties were unrepresented, as opposed to cross-examination I allowed both parties to have their say and move the matter backwards and forwards and I heard at length from both the parties who confirmed the contents of their written documentation and gave oral evidence. I am satisfied I heard sufficient yesterday to enable me to reach some conclusions.”

    Importantly, he went on to say:

    “I do not doubt that mother genuinely wants what is best for her children and the views she expresses are her genuinely held views.”

  4. However, I have to say that the judgment as a whole contains little account of the detail or content of the evidence that was given, or any real analysis of it. The judge said at the end of paragraph 16 of his judgment:

    “At the end of the day what this court has to grapple with is whether this father is a risk to his children.”

    He then referred to that initial safeguarding report by CAFCASS and the fact that within it the mother is reported as having:

    “…stated that he had never been physically violent towards her or the children…”

    Shortly after that he says in his judgment:

    “I cannot ignore the fact that that is what it is said that mother is reporting, but other than those matters specifically referred to he had never been physically violent towards her or the children.”

  5. I have been told by the mother yesterday, and this was confirmed by the CAFCASS officer who is now the children’s guardian and was present at the hearing on 30th March 2015, that the mother strongly said then, as she says now, that she did not say to that first CAFCASS officer what he recorded her as having said. Deeply regrettably, the officer was never contacted. He was never asked to come to court. Whatever notes he may have made of the telephone conversation have never been produced or examined.
  6. The upshot is that this case has been very decisively affected by a few challenged lines in that initial safeguarding report, which are themselves based purely on a single telephone conversation of which no original record has been produced. They appear to have had the effect that the solicitors whom the mother approached thought that it was forlorn even to apply for legal aid. They appear clearly to have decisively influenced the district judge in the decisions that he reached on the facts.
  7. The upshot is that so far as any allegations of aggressive or violent behaviour towards the children are concerned, the district judge was not satisfied that anything had happened except for one incident, which became known as the “bedroom incident”, in which he concluded that the facts lay somewhere in the middle of what the mother alleged and the father admitted.
  8. In relation to the mother’s allegations of aggression and violence towards herself, the district judge simply said at paragraph 28:

    “Insofar as allegations of behaviour directed against the mother are concerned, again I hear what mother says. I make no specific findings one way or the other, but these are allegations relating to the mother. Mother is not suggesting to her credit that the behaviour was such that she is living in fear of father. They are now separated. If there had been incidents, they are not going to re-occur because the parties are not together. Again, I am not satisfied that anything I have heard satisfies me that this father is a risk to his children.”

    When I say that the allegations made by the mother (I stress very clearly that I have no position whatsoever as to the truth or otherwise of them) include an allegation of raping her, it can be seen that that particular paragraph fails adequately to analyse the evidence and reach conclusions in a situation where conclusions were required.

  9. At all events, the thrust of the judgment and decision of the district judge was that there was nothing in the past behaviour or attitudes of the father which represented any risk to the two boys in having contact, including unsupervised and ultimately staying contact with him. The district judge then made an order dated 31st March 2015 which provided that the children shall live with their mother and should have specified periods of contact with their father, initially supervised and later unsupervised but based on a specified contact centre.

 

 

Holman J determined that the only real approach here was to treat the mother’s case as application for permission to appeal, he granted that permission, and he set the findings aside and directed that there must be a re-hearing of the evidence.  That wasn’t to say that he was ruling that mother’s allegations were correct, rather that they needed to be properly heard and tested, and not to simply place reliance on one sentence of a CAFCASS officer’s recollection of a telephone conversation when that recollection was disputed.

 

  1. For those reasons I have concluded, however unusually, that I should treat the mother’s strongly stated position that the district judge made mistaken findings, as representing an oral application for permission to appeal and permission to appeal out of time from those findings of fact. I propose to grant her permission to appeal. I propose to allow the appeal and set aside the findings of fact reached by the district judge. I will give detailed orders and directions, in terms that have already been fully discussed, for this whole matter to be allocated with a fresh start to a local circuit judge who must now deal with the case with maximum judicial continuity. There will be directions designed to achieve that there is a satisfactory complete re-consideration of the true facts.
  2. I strongly hope that the mother, who in my view is clearly entitled to it in view of the serious allegations she makes, can obtain legal aid. I regret that the father is unlikely himself to be able to obtain legal aid, both because he is the respondent rather than the maker of the allegations of violence and abuse, and because his income may make him financially ineligible. The rest of the detailed orders and directions are, I think, self-explanatory and do not require further reference in this judgment.

 

Even without his wand, Holman J can still work magic and ‘get busy’ …

Sweep being rather startled by the facts of this case

Sweep being rather startled by the facts of this case

Court proceedings were a shambles

 

I would agree with the Court of Appeal’s summing up here.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2015/992.html

In the case of Re K-L (Children) 2015, the Court of Appeal had to unpick an appeal centred around a judgment of Her Honour Judge Lyon after a finding of fact hearing in care proceedings. There were a raft of allegations to determine, and centrally, some of them involved findings that the father had sexually abused a child.

However a Judge determines those findings, it is vital that everyone knows exactly what was and wasn’t decided.

At the end of the finding of fact proceedings on 23rd April 2015, which had overrun somewhat, the Judge was more than a little exasperated

  1. At 4.40 pm, the judge returned to court and delivered a short judgment. Paragraph 1 of the judge’s judgment was as follows:

    “I am not to be held to anything I now say which is why I have deliberately not given it to you and I am saying it has yet to be perfected because I have not had enough time. Unfortunately your colleagues massively underestimated how much time they needed on their case, which I ended up taking in, and of course we have the police as well so I have not had a full run at this at all today so my apologies. However, as I say what I am going to do is just give a rough indication of what I am doing and how I have set things out in the judgment.”

  2. The judge then recounted what had happened in the course of the trial. In the last four paragraphs of the judgment, the judge set out her conclusions as follows:

    “10. The court heard the next day from the mother, TL, who became very upset as she recalled her discussion with both T and P as to what had happened to them. Then finally the court heard from Mr LE. The court is finding in accordance with the submissions made on behalf of the Local Authority and counsel for the mother, who united in their submissions, with the Local Authority adopting those of the mother. Therefore I am basically going with the submissions made on behalf of the Local Authority and the mother and supported to a considerable degree by the submissions made on behalf of the guardian so I have reproduced all of those. I have also reproduced the submissions made on behalf of Mr E by Mr Heaney but I am finding against him essentially with regard to the abuse of the children.

    11. The issues are set out very clearly in the various submissions and as I say the court is accepting those of the Local Authority supporting the mother and that is the purport of your submissions, was it not, Miss Mallon?

    [Miss Mallon: Yes]

    12. Miss Mallon, in relation to the mother, however, you did raise issues about whether the mother had acted appropriately and so in accordance with the findings sought, and I am just having to leaf back to those, I am finding points 3, 4 and 5 of your findings sought which will be between pages 1 and 2 of the document, I am finding those to be made out again on the basis of the evidence that we heard. Again I am going to have to craft this appropriately to indicate what I am finding there but the First Respondent, TL, failed to protect the children from sustaining physical harm at the hands of LE; that she failed to seek medical attention for P and for T after they had sustained physical harm at the hands of LE and finally that she repeatedly failed to protect the children from witnessing, whether through hearing or seeing, domestic violence. Are you with me, Miss Mallon?

    [Miss Mallon: Yes]

    13. Therefore to indicate again very clearly as far as the schedule of findings sought I am finding that the third respondent, LE, sexually abused T as exemplified by his doing rudies, namely inappropriately touching T’s penis, masturbating the child T, putting curry up his bottom. Also finding that the third respondent, LE, physically abused the children, PL and TK, as exemplified by kicking T on the leg, attempting to strangle T — and so the court does not accept the “play” explanation offered by the father — and punching P on the back which, as was submitted, was a very serious injury to inflict on a child of P’s age with all the attendant concerns that would have arisen.”

 

Whether or not those findings were right, it is absolutely and totally clear that the Judge had made findings that father had sexually abused the child as alleged, and had physically abused the child including strangling him on one occasion.

It was therefore something of a shock to everyone when the judgment itself was circulated on 8th May 2015 and set out that those findings were NOT proved in relation to sexual abuse, but were proved in relation to the physical abuse allegations.

 

Understandably, the parties sought clarification from the Judge

 

What the judge said in judgment 3 was this:

“I did go into court without any papers in front of me and stated that I agreed with the case put forward by the local authority with which, in very large part, I did except, one being “except in relation to the allegation of sexual abuse”. I did not make this clear, as essentially this was an ‘off the cuff indication’ and I did not make things clear at all, so it did appear as though I was making findings agreeing with each of the allegations made in the Schedule, whereas whilst I was agreeing with all the other findings sought as to physical and emotional abuse I did not agree with the finding of sexual abuse and I have now set the reasons for this out which given the difficulties we had over the ABE Interviews of T, is perhaps more to have been expected and I can only apologise fully for the rushed way in which I handled things on the final day of the hearing and thus stated my finding as to these sexual abuse allegations wrong.”

The legal issues for the case are :- can a Judge change his or her mind about a judgment, and when does that power end?  And was the Judge wrong in changing her mind in this particular case?

As long-term readers may recall, this issue has come up before. And the Supreme Court resolved it.

http://suesspiciousminds.com/2013/02/21/if-you-change-your-mind-im-the-first-in-line/

A Judge CAN change their mind about a judgment even after delivering it even after the order arising frtom the judgment is sealed, but they must provide reasons for doing so.

  1. The Supreme Court held that justice might require the revisiting of a decision for no more reason that the judge had had a carefully considered change of mind, since every case could depend upon the particular circumstances. The Supreme Court held that the power of the judge to change his or her mind had to be exercised judicially and not capriciously.
  2. The leading judgment was given by Lady Hale. At paragraph 30, Lady Hale said this:

    “As the court pointed out in Re Harrison’s Share Under a Settlement [1955] Ch 260, 284, the discretion must be exercised “judicially and not capriciously”. This may entail offering the parties the opportunity of addressing the judge on whether she should or should not change her decision. The longer the interval between the two decisions the more likely it is that it would not be fair to do otherwise. In this particular case, however, there had been the usual mass of documentary material, the long drawn-out process of hearing the oral evidence, and very full written submissions after the evidence was completed. It is difficult to see what any further submissions could have done, other than to re-iterate what had already been said.”

  3. Lady Hale went on to discuss what would be the position if the order made by the judge after the preliminary judgment had been sealed. Lady Hale held that that would have made no difference. The judge would still have been entitled to have a change of mind if there was good reason to do so.
  4. At paragraph 46, Lady Hale said this:

    As Peter Gibson LJ pointed out in Robinson v Fernsby [2004] WTLR 257, para 120, judicial tergiversation is not to be encouraged. On the other hand, it takes courage and intellectual honesty to admit one’s mistakes. The best safeguard against having to do so is a fully and properly reasoned judgment in the first place. A properly reasoned judgment in this case would have addressed the matters raised in counsel’s email of the 16 December 2011. It would have identified the opportunities of each parent to inflict each of the injuries by reference to the medical evidence about the nature, manner of infliction and timing of those injuries and to the parents’ and other evidence about their movements during the relevant periods. It would have addressed the credibility of the evidence given by each parent, having regard in this case to the problems presented by the mother’s mental illness. Had she done this, the judge might well have been able to explain why it was that she concluded that it was the father who had more than once snapped under the tension. But she did not do so, and it is a fair inference that it was the task of properly responding to the questions raised by counsel for the father which caused her to reconsider her decision.”

In passing, I’ll remark that “tergiversation” is not a word that I’ve ever enountered in polite conversation, and I’d even be slightly surprised if it cropped up in an email from long-time reader Martin Downs who does occasionally seek to expand my vocabulary.

It has two meanings :-

1. Evasion of straightforward action or clear cut statement

2. Desertion of a cause, position, party or faith

 

As luck would have it, both apply here. Keen-eyed readers will have spotted that Her Honour Judge Lyon was not claiming here that having thought further about her judgment, she had reconsidered her position and changed her views, she was just flatly denying that she’d ever found that father HAD perpetrated the sexual abuse.

So it was a bit different to the Supreme Court case, in which the Judge freely admitted that having decided X she later came to the conclusion that Y was the only proper decision to make. This was more an Orwellian “we have always been at war with Eurasia”

 

So, was Judge Lyon right in the assertion made in the third judgment?

  1. What the judge said in judgment 3 was this:

    “I did go into court without any papers in front of me and stated that I agreed with the case put forward by the local authority with which, in very large part, I did except, one being “except in relation to the allegation of sexual abuse”. I did not make this clear, as essentially this was an ‘off the cuff indication’ and I did not make things clear at all, so it did appear as though I was making findings agreeing with each of the allegations made in the Schedule, whereas whilst I was agreeing with all the other findings sought as to physical and emotional abuse I did not agree with the finding of sexual abuse and I have now set the reasons for this out which given the difficulties we had over the ABE Interviews of T, is perhaps more to have been expected and I can only apologise fully for the rushed way in which I handled things on the final day of the hearing and thus stated my finding as to these sexual abuse allegations wrong.”

  2. That explanation simply does not stand up to examination. Paragraphs 10 and 13 of judgment 1 cannot possibly be explained away as a mere slip of the tongue or misstatement on the part of the judge. It was simply not the case that the judge was saying one thing and meaning another.
  3. At paragraph 13 of judgment 1, the judge said:

    “Therefore to indicate again very clearly as far as the schedule of findings sought I am finding that the third respondent, [the father], sexually abused T as exemplified by his doing rudies, namely inappropriately touching T’s penis, masturbating the child T, putting curry up his bottom.”

  4. The judge was clearly saying what she meant and clearly stating what her findings then were. Therefore, as I say, the explanation for the changed decision given in judgment 3 does not stand up to scrutiny.

 

Given that the Judge HAD changed her position, the failure to provide a compelling explanation of what led to that was obviously going to fall short of the high test of the Supreme Court to change a judgment in a safe way.

 

  1. In my view, the history of this case is such that no one can have any confidence in the judge’s findings contained in judgment 3.
  2. In my view, the three judgments and the April order must be set aside. The case must be remitted to be reheard on all issues at the Liverpool Family Court.
  3. Finally, I must say this. The proceedings in the court below were a shambles. That is not the fault of any counsel in the case, nor is it the fault of the deputy judge. It is the four children at the centre of this case who suffer as a result of what has happened. Also, both the mother and the father have suffered much needless stress as a result of the course that this case has taken.
  4. On top of that, huge expense has been incurred, which no doubt will be borne by the public purse, as a result of matters which have gone wrong in this case.
  5. If my Lords agree, the judgments of this court will be referred to the President of the Family Division, so that he can consider whether any steps need to be taken to prevent such a situation arising again.

 

 

The case therefore will have to be re-heard.

Ryder LJ agreed, whilst defending that this was clearly out of character for Liverpool  Family Court.  [hmmm. There have been some decidedly peculiar appeals coming out of Liverpool in 2015 though]. And of course adds that there should never have been a finding of fact hearing in this case anyway…

 

  1. My Lord Jackson LJ describes a profoundly worrying sequence of events from the perspective of parties to children proceedings, including the children themselves.
  2. I am persuaded that the judge did not make a mistake on 23 April 2015. She clearly intended to make findings of sexual abuse against the father. Thereafter, she changed her mind, but did not accept that she had done so and has, as a consequence, not reasoned that change of mind.
  3. She misremembered what she had said on 23 April 2015 and subsequently recollected only an accidental use of language. That is sadly not an accurate memory, with the consequences described by my Lord, Jackson LJ.
  4. This is not, in my judgment, a circumstance described by the Supreme Court in Re: L. That is where the change of mind can stand. In this case the change of mind was not made judicially.
  5. I say in parentheses that this was a public law children’s application and I can see no basis for a split hearing upon the facts.
  6. Be that as it may, I am very concerned about the other aspects of the judge’s conduct of the determination described by my Lord, not least because it should be understood that this is not the way family proceedings are normally conducted before the Family Court in Liverpool, a matter impressed upon us by all counsel.

Re-e-wind, when the crowd say Bo Selecta!

 

 

(I had to go back and google to make sure I hadn’t used this before as a title – I had not, but I had hankered after it here

 

http://suesspiciousminds.com/2013/11/25/rearrange-these-three-letters-f-w-t/           )

 

This case is Re M, not Re E, but is a case where the Court made a decision to re-e-wind the care proceedings.

 

Re M (a child) 2015

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/71.html

 

The case was decided by the President of the Family Division, because it related to a failure of the Legal Aid Agency to provide public funding for the mother to be represented.

Here is the nub of it

 

  1. M was born in December 2011. A skeletal survey in July 2012 revealed a fracture of her arm. The local authority commenced care proceedings the same month (DO12C00164). A finding of fact hearing took place in the County Court before His Honour Judge Bond in December 2012. His judgment is dated 3 January 2013. He found that the fracture was inflicted “by either the mother or the father, the other parent failing to protect M” but that “it is not possible to determine which of the two parents was responsible.” The care proceedings concluded on 15 November 2013 when Judge Bond made a 12 month supervision order and a special guardianship order in favour of one of the mother’s relatives.
  2. On 11 July 2014 the mother made an application to the Family Court (BH14C00470) seeking “discharge of Supervision Order and Special Guardianship Order.” That concealed the true nature of the application. As set out in a skeleton argument dated 23 February 2015 prepared by her counsel, Ms Alison Grief QC, what the mother was seeking was a re-hearing of the finding of fact hearing because of what was said to be a breach of Article 6. Her case was that: i) New evidence demonstrated the full extent of the mother’s disability, rendering her a vulnerable adult.

    ii) The fact finding hearing was conducted without this vital information.

    iii) The integrity of the fact finding hearing was so significantly compromised as to amount to a breach of Article 6, thus necessitating a re-consideration.

  3. The application came before Judge Bond on 24 February 2015. It was opposed by the local authority. His judgment is dated 26 February 2015. He explained that he was concerned only with Stage 1 of the three-stage process explained in Re ZZ and others [2014] EWFC 9. He expressed his conclusion in this way:

    “Article 6 provides an absolute right to a fair trial. That right cannot be diluted. The findings that the court made as to the mother’s reliability as a witness were central to the finding as to her possible role as a perpetrator of M’s injuries. In the light of the information which is now available it cannot now be said that the mother did receive a fair trial in December 2012.

    I am therefore satisfied that she has provided solid grounds which satisfy Stage 1 of the Test.

    I therefore give the mother leave to re-open the fact find.”

    Judge Bond added that his decision “does not include any indication of the ultimate result of a re-hearing.”

  4. Given the way in which Judge Bond expressed himself and, importantly, the basis upon which he decided to re-open matters – the fact that, as he found, the mother had not had a fair trial – it is quite clear that the effect of his judgment is, as it were, to rewind the care proceedings, by which I mean the original care proceedings, DO12C00164, back to the point at which the finding of fact hearing was taking place in December 2012. In other words, this is not a case in which the application to set aside the supervision order and the special guardianship order is founded on some subsequent change of circumstance. It is founded on the fact – now established to the satisfaction of the original trial judge – that the mother was denied a fair trial of the original proceedings. In other words, the matter now before Judge Bond is not application BH14C00470; it is the substantive proceedings in DO12C00164.

 

The Legal Aid Agency had treated mother’s application for public funding as being an application to discharge the SGO, which would not get legal aid, rather than an application to be represented in care proceedings, which would.

 

It rather irks me that nobody took the simple solution here, which is – the final orders made in November 2013 are discharged  (on the basis that the hearing was not a fair trial),  and declare that the original application for care proceedings issued in 2012  is now a live application.   The Court could then go on to make either no order (if there is agreement that the child stay with grandparents whilst the matter is being determined) or an ICO (if there is no such agreement).

 

Of course, that is going to absolutely BATTER the Court statistics for that particular Court, since the care proceedings when they finally finish will have taken not 26 weeks, but something more like 150 weeks.

 

So the alternative is:-

 

  1. Discharge the existing orders
  2. Direct that the LA prepare a section 37 report  (which in effect will be their initial statement in fresh care proceedings)
  3. Make an ICO under the section 37 powers
  4. LA apply for fresh care proceedings, on the basis that if they do not, the child will return to mother’s care

 

Either of those solutions mean that the substantive litigation will be done under care proceedings, and thus the legal aid is mandatory non-means, non-merits for the mother.

 

But anyway, given that the case was before the President, what could be done instead is the muscle-flexing don’t mess with the President approach

  1. It may be that the Legal Aid Agency was given inadequate information as to the nature of the proceedings now before Judge Bond, but in my judgment, what is now before Judge Bond – which, to repeat, is the original care proceedings DO12C00164 – is plainly a “special Children Act 1989 case” in relation to which the mother is entitled to legal aid in accordance with paragraph 2 of the Regulations.
  2. There is, therefore, no need for me to consider whether the mother is entitled to look to any other source of funding. It was common ground before me that the effect of the recent decision of the Court of Appeal in Re K and H (Children) [2015] EWCA Civ 543, is to preclude the making of any order against Her Majesty’s Courts & Tribunals Service. Had the need arisen, Mr Tughan would have pressed for an order again the local authority, relying for this purpose on what I said in Re D (A Child) [2014] EWFC 39, para 35. That, unsurprisingly, is an order that Mr Nother made clear his clients would resist.
  3. I trust that the Legal Aid Agency will now be able to move with appropriate speed to ensure that the mother has legal aid for the next and subsequent hearings before Judge Bond.
  4. I make the following order:

    “Upon reading the judgment of His Honour Judge Bond dated 26 February 2015 and the orders subsequently made by Judge Bond

    It is declared that (a) the effect of that judgment is to re-open the proceedings DO12C00164 under section 31 of the Children Act 1989 (b) future hearings before Judge Bond will be of the proceedings DO12C00164 and (c) the ongoing proceedings before Judge Bond are accordingly a “special Children Act 1989 case” within the meaning of paragraph 2 of The Civil Legal Aid (Merits Criteria) Regulations 2013, SI 2013/104.”

 

It is not at all clear to me how everyone in the original set of proceedings missed mother’s learning difficulties, thus leading to an unfair trial, but it happened.  Perhaps the State shouldn’t now compound that injustice by failing to give her the free legal advice and representation that she’s entitled to.

 

 

Strategy meetings

 

If you aren’t familiar with Strategy Meetings, they usually happen where there is a suspicious or unexplained injury to a child, and the medical professionals meet with the social worker and sometimes police, to gather together all of the relevant information and consider the options for going forward.

 

In this case, Re L  (application to withdraw ) (Head injuries : Unknown cause) 2015   http://www.bailii.org/ew/cases/EWFC/HCJ/2015/67.html

 

they took on a particular significance.

 

A quick caveat – this case took place in my local Court, so of course I know some of the lawyers involved, and it was decided by my Designated Family Judge. I have had absolutely no involvement in the case (I never write about cases that I have had even a tiny part in) but of course it is much more easy to be dispassionate about the rubbish arguments deployed by Mr Edward Shirtsleeves and  Miss Rebecca Cufflinks of counsel when I’ve never met them and never will, rather than people who might concievably be in kicking distance of my shins from time to time.

 

Broad issues in this case were that in October 2014, a child presented to hospital with signs of head trauma. He was unwell at the time and has thankfully recovered.   A strategy meeting was held in November, and care proceedings were later commenced. The child was made the subject of an Interim Care Order and placed with an aunt.

 

At the final hearing, the Local Authority sought findings that the child had been shaken by one of his parents, suffering significant harm as a result.

 

After the medical evidence had been heard in those proceedings in June 2015, the Local Authority applied to the Court to withdraw their application.

 

  1. Essentially, the evidence of the experts and medical professionals was put to the test over those days, and by the conclusion of the medical evidence it had become clear to all those in this matter, including myself, that the local authority, who must prove their case against the parents, were in a position where it was highly unlikely that the evidence would support findings to the requisite standard against the parents and the threshold criteria would not be met in this single-issue case. I make it plain that there can be no criticism of the fact that the Local Authority issued proceedings here where there was clearly a prima facie case from the time L fell ill on the basis of the medical information which was supplied to them.
  2. Very properly in my judgment, and with exemplary good grace, the Local Authority made their application having taken stock of the evidence available to them at this point in the hearing.
  3. To found the basis for permitting the local authority to withdraw their application, I note the difficulties posed which have arisen in this unique case: some are serious, some perhaps less so, and some only visible with hindsight. There were gaps in the information available to the experts, and gaps in their own expertise as regards being able to come to clear understanding about what happened to L medically. There was, however, less uncertainty amongst the treating clinicians at Worthing Hospital as regards the cause of L’s head injuries at the critical point in time when life-changing decisions were to be made as regards his future, and I have concluded on all the evidence that this is something which requires careful exploration and recording in this judgment.
  4. L’s case and his long separation from the care of his own family will, I hope, contribute to a greater understanding of how the identified omissions which prevailed in this case might be avoided in future, though that may be poor consolation for his family.
  1. I have the weight of the expert evidence in this case as my yardstick to measure the identified omissions: it is difficult to imagine a more experienced and respected array of consultants with specialist knowledge, who have been stretched to and at times beyond their limits, but who have also provided valuable opinion in terms of their views of best practice. The case illustrates the position that there are limits to what can be achieved forensically.
  2. It is important that this judgment is seen as specific to the highly unusual case of L. Hindsight offers the court the opportunity to develop a counsel of perfection, but I am the first to acknowledge that this is unlikely to be achievable and practices vary and will always vary, and may be resource-specific. I can only do the best I can on what I have to go on in this matter with its very unusual features. The information about L which the experts had to go on was undoubtedly insufficient, and that in turn has left the court in the position where it cannot simply bypass their powerful evidence and return without more to the clinical picture available at Worthing Hospital to make findings, because such doubt has been cast upon L’s case as it was dealt with there. The information that there was what now appears to have been a very relevant differential diagnosis in relation to the cause of L’s injuries was available to the hospital, but it was not provided to the Local Authority at the outset of the case. The fact that there was a later differential diagnosis with a recommendation for further investigations related to L’s treatment was not fully conveyed to anyone in this case until the matter got to court.

 

 

 

If you are involved in a child protection case involving a head injury to a child or are a doctor who is involved in this area, I’d commend the entire judgment to you. It throws up a lot of really important practice issues, which are beyond the scope of this small(ish) piece.

You will see that although the Judge does not criticise the Local Authority for bringing the case to Court (and of course the Court when they made Interim Care Orders had to make the decision on the same information that the LA had),  we still end up in a situation where the parents were separated from their child for around seven months when they had done nothing wrong.

 

The mother was separated from her child for seven months. That is an almost unimaginable situation. I reaffirm the significance of this; of what she has missed out on in enjoying the first wonderful months of her child’s life and of what she must suffered as a result. She has lost her happy relationship with the father as well.

 

I think all of us could agree that this is intolerable. But what’s the solution?  One immediately cries out that the case must be heard more swiftly, but it is clear from reading this case that it was only by deploying a raft of very specialist experts that the true picture with all of its complexities emerged.  If someone had decided at the outset that the Court would reach a decision after say three months, those experts wouldn’t have reported and it is possible that the wrong conclusion could have been reached.

 

As Billy The Kid used to say,  “Speed’s fine, partner, but accuracy is final”

The other solution is not easy. Faced with an application for an Interim Care Order, with the treating medical professionals telling the Court that this child has been hospitalised as a result of one of his parents violently shaking him,  one is therefore asking a Court to take that risk on their own shoulders and keep the child and family together.  As we can see with the benefit of hindsight, that would have been the right thing to do on this occasion.  But ask yourself what would happen if a Local Authority (or a Court) decided that the medical evidence might later be proven wrong and left the child at home, where a second injury possibly more serious or life-threatening occurred?   How would Ofsted, the newspapers, the House of Commons, the public, react to that?

Part of the problem is that at the time when the social worker and then the Court has to make the decision about where the child should be whilst everything is investigated, that those cracks in the medical evidence haven’t yet appeared. It is only when ALL of the source material is available and looked at by people in painstaking detail, people with expertise, that you really get a sense of whether the evidence is unequivocal or whether this is a case with some real grey areas.

A Judge faced with an application for an Interim Care Order in those circumstances will know that there is a  risk of very serious injury but also that until all of the experts has reported we will not know whether the medical evidence is cast-iron or swiss cheese. Short of the parents going to live with another trustworthy adult or vice versa  (which is not really a practical solution for a seven month period of time), the risk can’t be absolutely protected against whilst the child is with the parents.  What’s the lesser of two evils here?

The way to keep the child at home with the parents is for the Judge to say “I know that there is risk here, I know that if it turns out that the medical evidence provided so far is right then these parents may have seriously harmed the child and may do it again, but experience has showed us that the only time one can be absolutely confident about the medical evidence is at final hearing when it is put to proof, so I am deciding that the risk should be taken in keeping this family with the parents, and I make that decision knowing that something could go wrong, no matter how much effort is put into a protection plan”.    And for a Court of Appeal to back a Judge up in that situation.

I would not pretend that this would be an easy thing to do.  If it goes wrong, the clamour would be for heads to roll and it would be a judicial head on the paraphet.

 

Anyway, back to the particular case.

 

Everyone was in agreement that the case should be withdrawn and the Court should find that the threshold was not met; but the issue was whether the Court should consider making a declaration under the Human Rights Act and possibly compensation   (although note that the Legal Aid Agency are currently stating that the Statutory Charge applies to such HRA compensation and it would all be swallowed up to repay legal costs)

 

The argument was twofold :-

 

1. That the medical professionals on the ground (not the Court appointed experts) had made serious mistakes which led to the child being removed and hence a breach of article 8

2. That the strategy meeting convened had been one at which a decision was made for the issue of proceedings, and thus was something that the parents should have been invited to, and failure to involve them was a breach of article 8 and article 6.

 

The Judge had been critical of some of the treating medical team on the ground, but was mindful that this was not, and could not purport to be a medical negligence case – the doctors had not been represented, nor had their Trust, and it was going outside the scope of the care proceedings to conduct that exercise.  The Court could go as far as it had, which was to identify practice areas for improvement and highlight failings, but apportioning blame was going too far.

 

The second point was developed more fully.

 

  1. I have been referred to Re R [2002] 1 FLR 755, Re L [2002] 2 FLR 730, Re G [2003] 2 FLR 42, where the protection offered by Article 8 was seen to extend to all stages of the decision-making process in child protection proceedings. [4]Re M [2001] 2 FLR 1300; Re S (Minors) [2002] 1 FLR 815; McMichael v UK [1995] 20 EHRR 205 and the injunction that: “Whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded by Article 8.”
  2. In Re G, the importance of full and frank disclosure by a local authority was emphasised:

    i) Informing the parents of its plansii) Giving factual reasons

    iii) Giving an opportunity for parents to answer allegation

    iv) Providing an opportunity to make representations

    v) Allowing the parents the opportunity to attend and address any crucial discussions.

  3. I have also been referred to Re M (Care: Challenging Decisions by Local Authority) [2001] 2 FLR 1300 where parents were not present at a discussion where the decision was taken to place a child from adoption; Re L (Care: Assessment: Fair Trial) [2002] 2 FLR 730 for the premise that the case must be viewed as a whole and exclusion may not in itself render the proceedings unfair.
  4. S 47 of the Children Act 1989 governs the duty of a Local Authority to investigate. The relevant aspects of this section are:
  5. S47 (1) 1:

    (1)Where a local authority—………………

    (b)have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm,

    the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.. . .

    (2)(b)have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.

  6. In addition I have been referred to the Sussex Child Protection and Safeguarding Procedures, published in March 2015. I have not been privy to this document hitherto. It contains a chapter on Strategy Discussions and Discussions, envisaged as a preliminary step before initiating a S 47 Enquiry, and when one is required, to plan how it should be undertaken. It provides guidelines for convening a strategy discussion or discussion. Discussions are advised in the case of serious physical abuse. It is identified as a “confidential professionals’ discussion” and participants are identified as a “professionals sufficiently senior to be able to contribute, although exceptional circumstances may arise where others may usefully contribute”. The relevant Consultant is highlighted as a required participant, as here.
  7. There is no requirement to include parents at such a discussion.
  8. In this case, I am faced with the tension between the need for a confidential professionals’ discussion to take place to which parents would not ordinarily be invited, and the argument that these parents should have been invited to contribute to that meeting, either for whole or part of it.

 

More detail about the Strategy Meeting followed

 

 

  1. (a) The Strategy Discussion
  2. In a case such as this, the decision to initiate a statutory s 47 inquiry (set out above) is taken following a strategy meeting held with relevant interested representatives of social services and external agencies such as the police, GPs and other medical personnel, schools, carers and, in appropriate cases, more specialised individuals. No more than and no less than that occurred in this case.
  3. The document generated by the meeting on 5th November is headed “Record of Strategy Discussion.” I see that It was called for as follows: “Referral from hospital this morning L had been admitted on two occasions. L has subdural bleeds of different ages. Suggestion non accidental injury. Possible shaken baby“.
  4. The proceedings hare was set running on what appears to have been the basis of the single clinical view provided at that meeting. There were a number of doctors at the meeting – Dr Cooke, Dr Kabole and Dr Shute in particular.
  5. These meetings are familiar to the Court. There is a protocol locally in operation across the three local authorities which sets out the normal parameters for such a discussion, which in short includes those who should “generally” be involved. It reads “all participants should be aware that a strategy Discussion/Meeting is a confidential professionals meeting and as such, notes of the meeting should not be shared within anyone without the permission of the chair”.
  6. It was chaired by Amanda Cole but I do not know who made the record. Its accuracy has been explored by the parties with Dr Hazell who gave her input over the phone. I have to say that the list of negatives does not quite coincide with Dr Hazell’s more nuanced evidence but I make nothing of that.
  7. The Social Worker Ros Sims told the court in her statement that L’s injuries were confirmed at the strategy meeting by the consultant paediatricians who attended as non-accidental injuries and consistent with L having been shaken and have resulted in the significant harm that has been medically evidence. The entire case stood on the information available to West Sussex County Council. It was the only thing which supported his removal. The initial stated belief of the local authority was that “L had experienced significant harm from one or more of his carers”.
  8. It was known that the parents were to be arrested and interviewed because it is recorded. The only planning in relation to further action by the local authority was that they were to make a decision regarding legal proceedings. In Re G [2003] 2 FLR 42 the first of the identified requirements upon a Local Authority is to inform parents of their plans. The recorded plan was to move to a decision in relation to legal proceedings. That is all.
  9. The issue is whether in this case, as distinct from other cases where parents would not normally be included in a confidential professionals meeting,[                 and                    ]should have been invited.
  10. Mr Storey argues that on the basis of Re G, where the protection offered by Article 8 was seen to extend to all stages of the decision-making process in child protection proceedings, this particular strategy discussion should be considered as part of that inclusive roll call to say that he fact that the mother and father were not invited to the Strategy Discussion was an incursion into that right because to was a decision to separate the mother from the child.
  11. Looking again at that decision. I am mindful that what has to be determined is whether, having regard to the particular circumstances of the case, and notably the serious nature of the decisions to be taken, the parents were involved in the decision making as a whole, to a degree sufficient to protect their interests. If not this would amount to a failure to respect their family life and the interference resulting from the decision will not be capable of being regarded as “necessary” within the meaning of Article 8.”
  12. Mr Storey takes that decision at its highest, and sets it as the first rule in every case, to mean that this particular decision was part of the trial process and the parents were entitled to participate without qualification. If that is the case, then potentially parents would be entitled to be present at every strategy discussion, and the essentially confidential nature of the discussions would be lost.
  13. Like the experts in L’s case I am really hampered. All I have are the recordings. All I know is that the wheels had been set in motion prior to that meeting because there was a plan to arrest the parents and the social workers were going to refer the case to their legal department. It was technically not a decision to separate the parents from L, as far as I can tell from the notes. They are not likely to reflect the whole of the discussions. However I do not have the benefit of the evidence of those present: they have not been required to set out their evidence as to what occurred and why.

 

 

That did make matters difficult.  The Judge distilled the HRA argument into a central question

 

To reach any conclusion as regards an infringement of the parents’ rights due to not being invited, a court would at the very least have to ask the following question; Was the omission to invite the parents to a confidential professionals’ discussion, where the case was extremely serious in terms of what was being advanced medically, where their accounts appear not been given to the discussion, an infringement?

 

The Judge goes on to say, that understanding that the HRA point was developed once it became clear that the medical evidence was less solid than it would have appeared at the outset of the case, that there were important evidential matters which would have been needed to be obtained and put to witnesses before the Court could properly make that decision.

 

  1. The evidential basis for answering those questions with care and fairness is not available to me. To really understand what occurred and why, a court would at the very least need a detailed response from the local authority, and evidence from the key participants which could be fairly and properly tested. I cannot therefore take this point any further.
  2. What does concern me however is the medical information which was given then and later which tended so strongly to characterise this case as a case of inflicted injury as opposed to there having been another possible identifiable cause as of 4th November and indeed throughout. That alternative possibility has never gone away during this case. The Local Authority assumed that to be the only available diagnosis at the start of the case and the court only had the single view upon which to proceed.

 

The Court also expressed disquiet about the medical information provided at that meeting, most notably that it was not communicated to the Strategy Meeting that at least one treating doctor had considered that there was a medical explanation for the injury due to an unusual clinical feature that might give rise to a differential diagnosis  (i.e that there might not have been an injury at all, but rather some sort of medical episode)

 

I know not whether those involved intend to leave it at that, or whether a stand-alone HRA claim will be lodged.

 

For the moment, the answer to the question  “Is it a HRA breach to have a strategy meeting which might result in very critical decisions being made for a family if the family aren’t present?”   is  “it might be”  –  and at the very least, this case has made us all think rather harder about the issue.

 

 

Physical chastisement – Court of Appeal

 

A Local Authority appealed the decision of a Recorder at a finding of fact hearing, that having made some serious findings about physical injuries sustained by a child and caused by a parent, he went on to find that the threshold was not made out in terms of risk to that child’s sibling.   This case also deals with some important principles as to what extent making SOME findings has on the other allegations to be dealt with.

 

Re L-K 2015

http://www.bailii.org/ew/cases/EWCA/Civ/2015/830.html

 

The Recorder had made these findings about the injuries

  1. The Recorder found that two sets of bruising had been inflicted by the parents, although he was unable to say which of them was responsible. They were as follows:

    i) There were parallel lines of bruising on R’s buttocks which the Recorder found were caused by someone striking him across the buttocks with a linear object (§20 of the Recorder’s first judgment). The Recorder thought it likely that the object used was a ruler or a belt, in which case there were at least two blows, but it may have been a stick or flexible cable, in which case there were at least four blows.

    ii) There were three bruises on the inner part of R’s right thigh, immediately below his buttocks, which were described as “loop pattern or crescent shaped injuries” and a further “sigma shaped pattern bruise” to the right of the lower buttock crease (§21). The Recorder found that these marks were caused by at least two deliberate slaps (§24).

  2. The Recorder found that both the instances of inflicted injury had the character of corporal punishment (§29). The parents had denied that they were responsible for the injuries but the Recorder found that they both knew who did it and had agreed to stick together and protect each other (§33), trying to mislead the social workers and lying in court. He said that it was “difficult to blame them in the circumstances” (§35) (referring, I think, to their lies and collusion, although he may have been referring to their treatment of R) as they were in a foreign country and had a difficult child to look after.
  3. It is not entirely clear how the Recorder viewed the corporal punishment inflicted on R. At §36, he said it “may well be regarded as going well beyond reasonable chastisement”. At §37, he said that he could envisage that if the parents had admitted it, they would have argued that it was no more than reasonable chastisement and said, “I cannot judge that question”. Later in the same paragraph, however, he went on to say that it certainly seemed excessive to him to hit a five year old at all, especially with an implement. What is clear is that he was unwilling to find it established that what happened to R was “abuse”. He seems to have taken into account in reaching this conclusion the possibility that it was “an over exercise of parental authority in a disciplinary capacity”, the evidence that the parents are loving parents and that R loves them and is not afraid of them, and the fact that he could not know how much R had suffered in the process (§37 of the main judgment and §5 of the Recorder’s supplemental judgment).
  4. The parents did admit one of the local authority’s allegations, that is that they had, each independently of the other, made R stand in a corner for more than two hours when he was naughty. The Recorder described the father’s conduct in so doing as “treating R cruelly” (§31). However, he accepted the parents’ evidence that this was something that happened when the family was under great stress and was not a regular occurrence (§34).

 

 

He then went on, however, to conclude that whilst the threshold was met for R, it was not met for R’s brother even in terms of risk of harm:-

 

 

14. He was accordingly asked to deal with the threshold thereafter, and did so, after further argument and consideration, in a short ex tempore judgment. In it, he found the threshold crossed in relation to R on the basis that R would have suffered significant harm because a) hitting a child of five who suffers from psychological problems with an implement will cause significant harm b) standing such a child in a corner for two to three hours must also cause significant harm and c) there must be a significant risk of repetition as the parents had closed ranks and said nothing about it to social services and the courts (supplementary judgment §5). As to M, in that judgment the Recorder stated baldly that he did not think the threshold was crossed.

  1. He returned to the threshold in relation to M in his judgment refusing permission to appeal and in his final short judgment. He determined that M was not at risk in his parents’ care, essentially on the basis that he was a very different child and had not suffered any harm so far. In the permission judgment, he referred to the findings he had made about R, and the evidence as to how very difficult R was to look after, contrasting that with M, in relation to whom there was neither evidence of psychological difficulty nor evidence of any problem with him in foster care. He said:

    “6. The difference between these two children is such that I cannot conceive that anybody could imagine that the findings I have made in respect of the older brother should lead to a finding that the younger brother is at risk.”

 

 

Well, the Recorder couldn’t concieve that anyone could imagine this, but the Court of Appeal not only imagined it, but did it.

 

36. The local authority argued that, in the light of the findings that R had been beaten with an implement and slapped sufficiently hard to leave bruising and had been excessively punished by being made to stand in a corner for a prolonged period, it was wrong to conclude that there was no risk of significant harm to M. What those facts indicated, in their submission, was that at times of stress or challenging behaviour from one of the children, the parents may harm their child whether by way of discipline or simple loss of control. They argued that the Recorder placed too great a weight on the difference between the two boys as a protective factor for M and failed also to take account of the fact that M is more vulnerable because of his young age and may also become more challenging as he grows older.

  1. I would accept this submission. Rightly or wrongly, the Recorder did not make any findings on the issue of whether M was present during the punishments of R and whether he was emotionally harmed by what he saw and there was no evidence that M himself suffered any physical harm. The threshold in relation to M therefore depended on whether he was “likely to suffer significant harm”. “Likely to suffer” in this context means that there is “a real possibility, a possibility that cannot sensibly be ignored having regard to the gravity of the feared harm in the particular case”, see Re H and R (Minors)(Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80. The threshold is therefore “comparatively low”. It was, in my view, plainly satisfied on the facts that the Recorder had found. Every case depends upon its own facts, but in this particular case it was not at the threshold stage but at the welfare stage that matters such as the parents’ circumstances at the time R was injured and the differing personalities of the children were relevant. Given the nature of the Recorder’s findings in respect of R, and the parents’ failure to acknowledge or explain what had happened and why, I do not think that the factors that the Recorder relied upon in differentiating between the two boys in fact provided any reassurance in relation to the risk to M for threshold purposes. I would therefore substitute for the Recorder’s dismissal of the proceedings in relation to M, a finding that the threshold criteria were satisfied in his case on the basis of likely harm.

 

 

The next limb of the appeal was that, having made those findings, was the Judge wrong in discounting the other injuries to R that he made no findings on?  I.e in relation to say ten physical injuries should the Judge approach each and every one in isolation, OR if the Judge had made findings in relation to four or five or them, does the fact of those findings become a relevant consideration when approaching the remainder?

 

  1. The local authority argued that the Recorder was wrong to decline to make findings in relation to the injuries to R’s face, neck/chest, and thigh, and a finding that he was “abused”. They submitted that he had gone wrong because he failed to look at the totality of the picture, instead considering the injuries only individually. It was argued that the findings that he did make, whilst not probative of the other injuries, were capable of being corroborative and supportive evidence in respect of them. Also relevant to the overall evaluation, it was submitted, was the parents’ dishonesty.
  2. I agree with these submissions. It is always necessary for a judge who is considering possible non-accidental injuries to look at the whole picture before determining causation. So, for example, what might be accepted as an accidental injury if it stood alone, might take on a wholly different aspect if it is only one of a number of injuries. Similarly, the fact that it is firmly established that one of a number of injuries has been inflicted by a parent must be taken into account when evaluating the cause of other injuries.
  3. In this case, I have no doubt that when it came to considering the possible causes of the other marks found on R, attention had to be paid to the fact that the parents had a) beaten R with an implement causing bruising, b) smacked him to the extent that bruising was caused, and c) lied in an attempt to conceal what they had done. Regard should also have been had to the excessive punishment which the parents conceded had been imposed on R in the form of having to stand in a corner for a prolonged period. As the local authority acknowledged, the fact that one injury is inflicted does not prove that others are non-accidental, but it changes the context in which the child came by the other injuries from a home which may be beyond reproach to one in which it is known that there has been, at the least, excessive physical punishment. As Mr Roche for the father observed during submissions, it was also the case that R had injuries which were accepted to be accidental. That fact was relevant too, but it did not remove the potential significance of the findings of non-accidental injury. The fact that the parents had lied about what they had done was also relevant to their credibility in relation to other matters. The Recorder’s approach did not pay proper regard to these factors as part of the overall picture he was surveying.

 

Whilst the Judge did not have to slavishly follow the medical opinions  (see dozens of Court of Appeal decisions that confirm that), the Judge does have to pay proper attention to them, and where a theory for the explanation of the injury emerges from the Judge himself, it is necessary for the Judge to explore that theory with the expert.

 

  1. In my view, the Recorder also failed to pay proper attention to the evidence of Dr Fonfé in determining what had happened. It was, of course, for him to decide, on the basis of all of the evidence, whether it was established that particular injuries were non-accidental, and not for Dr Fonfé. However, he needed to take her expert views into account in his determination. In referring to what she said about each of the injuries as her “suspicion”, he seems to me to have understated the force of her opinion. He also failed to take account of her more general advice as to causation, perhaps because he concentrated on the injuries individually. As can be seen from the passages from her reports which I have quoted above, Dr Fonfé’s approach was entirely conventional in that she looked at R’s situation overall as well as considering the various injuries individually. The Recorder was not bound to accept her general observations but he did, at least, need to show that he had considered them. Had he done so, he may have structured his judgment differently and avoided falling into error. As it was, he appears to have made his determination about each of the individual injuries before, at §26 (see above), turning to look at the picture collectively, and when he did look at the whole canvas at this point, it was not with a view to considering what the overall picture might tell him about the individual injuries, but in order to address the local authority’s allegation that R had been subjected to a prolonged single attack or a series of individual episodes of attack.
  2. In short, the Recorder was wrong to conclude that there was nothing but Dr Fonfe’s suspicions in relation to the other injuries. His own positive findings and Dr Fonfé’s expert evidence about what, in her view, the overall picture revealed were important too. It is not a foregone conclusion that they would have led to a different conclusion as to the other injuries but they needed to be put into the equation and considered with the rest of the evidence.
  3. In my judgment, this deficiency in the Recorder’s approach is sufficient to render his decision in relation to the balance of the local authority’s allegations unsafe. It would follow that, in so far as it is necessary in order to make decisions about the children’s futures for there to be findings in relation to those allegations, there would have to be a further hearing for that purpose. I need not therefore say much more about the other flaws that there may have been in the Recorder’s approach. I would, however, mention a number of matters.
  4. The first is the Recorder’s crayon explanation (see §16 of the judgment). It seems that this came entirely from him. Dr Fonfé’s view as to the feasibility of the hypothesis was not sought. If a particular explanation such as this is to carry weight in the court’s decision, it is important, in my view, for it to be offered for comment by the relevant expert and in submissions. Had that been done, the response may well have been that the crayon explanation ignored the existence of what Dr Fonfé saw as a pair of marks which looked like grip marks.
  5. I wonder also whether this passage in the Recorder’s judgment indicates that he was veering towards requiring that all other possible causes must be excluded before a finding of non-accidental injury could be made (see also §14, for example) and/or proceeding on the basis that no finding could be made without corroboration. Depending on the particular facts of the case, it may not be necessary for the evidence to go that far. What is required is simply that it should be established on the balance of probability that the injury was non-accidental.
  6. As to the Recorder’s conclusion that the findings he had made were not established to be abuse, I am not inclined to spend time on that issue for two reasons. First, there is little point in debating whether what the Recorder found to have been established should or should not be classed as “abuse” when his findings may not be the last word on what happened to R. Secondly, what actually happened is much more important than how it is classified and it may well be that evidence which is relevant to this may continue to emerge, for example from Poland, from the parents themselves in response to the findings made so far, and in the course of any further fact finding hearing in relation to the balance of the allegations.

 

 

The appeal was therefore successful

 

 

For the reasons I have already given, I would allow this appeal. In relation to the threshold in respect of to M, I would substitute a finding that it is satisfied on the basis of likelihood of harm. As far as the Recorder’s findings of fact are concerned, I would not interfere with the facts which he found proved but I would set aside his determination in relation to the balance of the local authority’s allegations and remit the case to the Family Court for an urgent directions hearing at which the future conduct of it will be decided.

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