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Tag Archives: finding of fact

Epilepsy and rib fractures

 

 

This is a County Court decision on a finding of fact hearing, involving a child of two Brazilian parents who sustained a rib fracture.

Because I am childish, I like to think that the Judge specifically named the case Re O because of the Brazilian connection…

Re O (Minors) 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2013/B44.html

The case threw up a number of important issues. The parents defence had been that they had not done anything and that there had been a Vitamin D deficiency, leading to rickets, leading to weak bones. A substantial amount of expert evidence was called on this, and eventually it went nowhere.

The mother, who had been caring for the child L, during the relevant period, is someone who has epilepsy. She gave evidence about whether she had had a fit on that day
As to her epilepsy the mother said that she had five such fits during her pregnancy with F and two during her pregnancy with L. She could recall no fits between F’s birth and her pregnancy with L. Although she does not remember having such fits she usually begins to feel unwell shortly beforehand. Following a fit she feels drowsy, unwell and everything seems muddled. She did not recall any such symptoms occurring on 7th April 2013.
With that in mind, you may be surprised that the finding of His Honour Judge Bond was that the injury was caused during an epileptic seizure. I think, to be fair, that everyone else was surprised as well, and this emerged as a result of some expert evidence from a Dr Hillier
121 Attempts had been made before and during the hearing to secure the attendance of Dr. Hillier. He is a Consultant in Neurology. Unfortunately he did not give evidence until after the parents. He was the last witness to give evidence.

122. The mother’s G.P. had first referred her to Dr. Hillier in 2009. He has written a short report dated 30th September 2013 (C2199) about the mother’s possible epilepsy. He last saw the mother in November 2012. Dr Hillier found it difficult to make a clear diagnosis but thought that the mother suffered from faints which look like seizures, but perhaps has a tendency to fainting and to suffering seizures.

123. In his oral evidence Dr. Hillier went further and took everybody by surprise. He distinguished between what he described as partial epileptic fits and full epileptic fits. In his opinion it was possible that the mother could have had a partial fit, during which she injured L, but remembered nothing of it. Further he thought it possible that the mother would experience no symptoms, before or after a partial fit, that would lead her to remember that she had suffered such a fit.

124. The doctor described situations where a patient had attended his clinic and reported that he had suffered no fits since the last appointment. Not infrequently, the patient’s partner reported that he/she had observed occasions when the patient was “spaced out”, having had some form of partial fit, but which the patient could not remember.

125. It was because of this evidence that the local authority reconsidered its position and no longer sought any public law orders.
The very vivid illustration given by Dr Hillier was that he had once had a patient who had been peeling an orange, had had a partial fit, and continued peeling the orange afterwards, and that for this patient there had been no gap at all in the sequence of events, she had simply peeled an orange and nothing of any significance had occurred at all.

The suggestion therefore was that mother could have had a partial fit, injured the child completely accidentally during it and been utterly unaware of it.

The Local Authority, in the light of that evidence, threw the towel in (save for shutting the door on all of the Vitamin D debate in relation to this case)

That suggestion that a parent could injure their child during a partial fit and have NO RECOLLECTION of it at all is startling, but Dr Hillier’s evidence was clearly compelling.
The Judge had to consider whether this was capable of meeting the section 31 threshold in any event (for example was there some negligence or fault or flaw in the mother handling a child when she was prone to fits?)
In paragraph 8 of his written submissions, Mr Hand [counsel for the LA] deals with the question of whether the threshold criteria are satisfied. He referred to the case of Re D (Care Order: Evidence) [2011] 1 FLR 447 per Hughes LJ that the test under Section 31(2) of the Children Act is an objective one. As the Lord Justice said in that case:

“It is abundantly clear that a parent may unhappily fail to provide reasonable care even though he is doing his incompetent best.”

145. Mr Hand submits, and I agree, that on the facts of this case, if the court finds L’s injuries were caused by the mother during a partial fit, the threshold criteria are not met by reason of the fractures that L suffered. Mr Hand said that, had the Local Authority been aware, at the outset, of Dr Hillier’s evidence, they would not have instituted proceedings under Section 31.
[i.e so far as the LA were concerned, although it was theoretically possible for the Court to find that the s31 threshold was crossed by the child being injured whilst being held by mother who had a partial fit that she had no recollection of, they were not going to invite the Court to do so]
The next interesting point to arise is that clearly once the LA accepted the partial fit theory, and the mother and father accepted it, was it a done deal? In this case, those representing the Guardian felt uncomfortable about that.

168. Mr Tolson QC [counsel for the Guardian] submits, and I agree, that the medical evidence did not alter during the course of the hearing. The three jointly instructed experts agreed substantially, as did Dr Allgrove. The thrust of the evidence was that non-accidental injury is the only explanation, save in wholly exceptional medical circumstances which it is submitted do not exist in this case. It is submitted that the parents’ evidence was not credible and in this case the matter goes further than simply being unable to offer an explanation. It is submitted on behalf of the guardian that the omission of any recall prior to the observation of the lump is particularly striking given the obvious thoroughness with which the parent’s statements have been prepared in other respects. Further submits Mr Tolson QC it is clear that the parents were tired and under some stress on Sunday 7th April 2013.

169. In his oral submissions Mr Tolson QC accepted that he was now the only advocate who contended for a finding of non-accidental injury. Following Dr Hillier’s evidence, Mr Tolson QC had been able to take brief instructions about the Local Authority’s change of position. The guardian maintained her position, as I have just described.

170. Mr Tolson QC dealt with the point raised by Charles J in Lancashire CC v D & E, in respect of the guardian’s position in a case such as this. In the particular circumstances of this case, and particularly since the Local Authority’s change of position, the guardian felt it important that the court should have before it, on behalf of the children, arguments which supported a finding of inflicted non-accidental injury.

171. It is the case that the role of the guardian’s advocate in a fact-finding exercise is to be fully involved in testing, in particular the expert evidence. Generally I would expect the guardian to help the court by making submissions which alert the court to the important matters, but to remain neutral as to the court’s findings. In the unusual circumstances of this case, it was helpful for the guardian to maintain the position that she did, although I regard it as an exceptional course.
The Court therefore permitted the Guardian’s advocate to ‘test the evidence’ and to make submissions that the partial fit explanation might not be the correct answer in this case. (It would perhaps have been interesting to see if the Court would have taken a different view had the key piece of evidence, Dr Hillier, not been the very last witness in the case)

Here is what the Guardian (through leading counsel) had to say about the partial fit theory
172. As to the question of the burden of proof, and given that the Local Authority no longer pursued a finding of inflicted non-accidental injury, Mr Tolson QC pointed out that the court must still, in the circumstances of this case, consider whether such a case has been proved on the balance of probabilities.

173. As to the question of the mother’s epilepsy, Mr Tolson QC pointed out that there was no evidence that the mother had had a fit on the day in question. Further, there was no evidence that the mother had ever had a partial fit of a kind which Dr Hillier thought might have been possible. Mr Tolson QC did not accept that Dr Hillier’s evidence necessarily meant that during a partial fit the mother would drop L and not remember such an event. He submitted that a partial fit would not fill the gap to explain the vagaries of the mother’s evidence, in respect of what happened between about 13.00 and 18.00 on 7th April 2013. It is accepted, on behalf of the guardian, that if the mother had had a full epileptic seizure she might not recall dropping L.

174. Mr Tolson QC submitted that an epileptic fit does not explain L’s rib injuries. For example if L had been dropped that would not involve a squeezing mechanism, which is generally thought to be the cause of a type of rib fracture that L had suffered. Further, said Mr Tolson QC, one such fit would not explain the presence of the bruises.

The Judge said that before having heard from Dr Hillier, he had reached the tentative conclusion that he was satisfied that the injuries had occurred but was not satisfied that they had been deliberately caused by either of the parent, their overall presentation and absence of any other troubling issues weighing significantly in these deliberations.
The applications for Care Orders were dismissed and the children returned home.  [It is worth noting that the Judge indicated that even before Dr Hillier’s evidence, he had been of the view that he should not make a finding of fact that either of the parents had deliberately harmed the child]

 

The Judge had this to say about epilepsy

184. The question of epilepsy and its possible implications in cases such as this has been explored. There is clearly much to learn.

 

The placement of an adult away from their family

This Court of Protection decision LBX v TT and Others 2014  touches on some important issues. It is a case involving a 19 year old girl, and the decision of the Court that she lacked capacity to make decisions for herself and that it would be in her best interests to continue to live in foster care.

 

 

 

http://www.bailii.org/ew/cases/EWCOP/2014/24.html

 

The background to this is that there were allegations of serious sexual misconduct by her step-father, who awaits criminal trial. The case had been set down for what would have been quite a long and tricky hearing, particularly in the Court of Protection, to determine the truth of those allegations.  Since, if they were not true, the best interests decision would be very different, or potentially very different.

That starts to look like care proceedings, but on a vulnerable adult rather than on a child.

An additional complexity is that whilst mother and probably stepfather would have been entitled to free legal advice to fight the case in care proceedings, that’s not the case in the Court of Protection.

 

The Judge, Cobb J, said this  (MJ is mum, JJ stepfather)

At the outset of the hearing on 7 July, MJ and JJ made an application to adjourn the proceedings to obtain legal advice. They told me that they had been advised that they did not qualify for legal aid (on grounds of means) and did not have funds to instruct a solicitor privately. They had tried, without success, to obtain a litigation loan from the bank. I had been advised at the pre-trial hearing that the Bar Pro Bono Unit could not offer counsel for this hearing.
 

I recognise the considerable disadvantage to someone in the position of MJ and JJ appearing unrepresented in proceedings of this kind; their article 6 ECHR rights are imperilled. However, as there seemed no realistic prospect of MJ or JJ obtaining representation in these proceedings, and given the need to reach conclusions at this hearing, I refused the application to adjourn.
 

I was advised that JJ had solicitors acting for him in the criminal proceedings. I caused a message to be communicated to those solicitors over the short adjournment expressing my hope that they would be able to offer JJ some advice. I was very pleased to see Mr Levy at 2pm appearing on a pro bono basis.
 

On the third day of this hearing, MJ attended court with a McKenzie Friend. I considered it appropriate to allow this gentleman to assist MJ, and in doing so, applied the Guidance offered by the McKenzie Friends Practice Guidance Civil and Family Courts (12 July 2010): this Guidance is said to apply to civil and family proceedings in the Court of Appeal (Civil Division), the High Court of Justice, the County Courts and the Family Proceedings Court in the Magistrates’ Courts. I have assumed, and unless advised to the contrary will continue to conduct hearings in my court on this basis, that it applies to proceedings in the Court of Protection.

 

A further problem was the unwillingness of the police to provide any of the source material, which would have been vital to the conduct of any finding of fact hearing. In the event, the finding of fact hearing did not take place, due to MJ’s position at the hearing on 9th June 2014:-

I arranged a hearing on 9 June 2014 to consider the viability of the fact-finding hearing. At that hearing the case took an unexpected turn; MJ and JJ (who were helpfully represented by counsel instructed by the Bar Council Pro Bono Unit) indicated that they intended to remain together as a couple, irrespective of the allegations &/or the outcome of any trial of the allegations, and did not propose to offer TT a home, now or in the long-term. Specifically, they conceded that:
 

 

i) MJ could not envisage a situation in which she would separate from JJ “even if findings were made against him”. 

ii) TT should not return to live with MJ and JJ; she should remain living with KK (MJ: “we cannot offer her a home”).

iii) That the decision that TT should remain with KK is a “long-term decision” on the part of MJ;

iv) JJ was “is not willing to, and will not, have any contact with TT in the future. Contact is defined as direct and indirect contact and facebook/social media messaging”. He further agreed not to attempt to have any contact.

 

 

Within the case, the Official Solicitor (representing the 19 year old, TT) argued that the Court should still conduct the forensic exercise about the allegations and what happened to this young woman, and went further in suggesting that the Court had a duty to do so.

The Official Solicitor, on behalf of TT, contended that I am under a duty, or, if not under a duty should nonetheless exercise my discretion, to hear oral evidence in order that I can determine a solid factual basis for establishing TT’s best interests orders, even on an interim basis. Mr. McKendrick referred me to Re W [2008] EWHC 1188 (Fam) where McFarlane J held at paragraph 72:
 

“It is important that the planning in the future for these children, particularly C, is based upon as correct a view of what happened to R as possible. It is not in the children’s interests, or in the interests of justice, or in the interests of the two adults, for the finding to be based on an erroneous basis. It is also in the interests of all of the children that are before this court for the mother’s role to be fully understood and investigated.”
He contended that the principles outlined above could be appropriately transported from the Family Division to the Court of Protection. I interpolate here to say, as will be apparent later, that I agree.

The Official Solicitor’s argument was developed further thus:
 

 

i) Section 48 provides jurisdiction to make interim ‘best interests’ orders where it is necessary to make those orders “without delay”; this phrase in section 48(c) imports into the section a degree of expectation that this provision should be used very much as an interim measure; 

ii) While the evidential bar is lower on determination of capacity in section 48(a), there is no qualification to the court’s approach on ‘best interests'; therefore unless the case is urgent, there ought to be a reasonable and proportionate enquiry into best interests;

iii) That I should endeavour to resolve the facts so far as I can at this stage; many of the issues will need to be grappled with at some point in time and it is better to do so while the events are fresher in people’s minds; this hearing was set up for that purpose, and the witnesses are available;

iv) MJ has expressed a wish for unsupervised contact in the future: see §9 above. Indeed, the Official Solicitor observes that the Applicant itself accepts that “it is … foreseeable that [MJ] will seek unsupervised contact in the future, after the conclusion of the criminal trial”;

v) That ‘best interests’ decisions should be made on the most secure evidential footing; this is particularly so where

a) interim orders are expected to last for a considerable period (the criminal trial may not be for many months);
b) interim orders are inconsistent with TT’s expressed wishes (see §95-98 below);
vi) Prolonged interference with TT’s Article 8 ECHR rights for unrestricted contact without a clear determination of facts is not proportionate;

vii) That particular caution is required before the Court proceeds to make determinations largely on the basis of concessions offered by an unrepresented party (MJ), particularly where that party is plainly distressed by the issues.

 

 

As a family lawyer, it interests me that lawyers in the Court of Protection are placing reliance on McFarlane J ‘s (as he then was) decision in the family Court in Re W, which is a decision I wholeheartedly agree with, when the Court of Appeal in dealing with family cases are taking quite the reverse view about finding of fact hearings in family cases.  My support for the latter stance is somewhat less than wholehearted.

 

Cobb J goes on to borrow some principles from family law cases to provide guidance for if and when to embark on a finding of fact exercise in the Court of Protection, and these would now be rules or guidelines to follow in such cases

By analogy with the position in family law, the judge would in my judgment be well-served to consider the guidance of Butler-Sloss LJ in the family appeal of Re B (Minors)(Contact) [1994] 2 FLR 1 in which she said as follows:
 

“There is a spectrum of procedure for family cases from the ex parte application on minimal evidence to the full and detailed investigations on oral evidence which may be prolonged. Where on that spectrum a judge decides a particular application should be placed is a matter for his discretion. Applications for residence orders or for committal to the care of a local authority or revocation of a care order are likely to be decided on full oral evidence, but not invariably. Such is not the case on contact applications which may be and are heard sometimes with and sometimes without oral evidence or with a limited amount of oral evidence.”
It is acknowledged that the ‘spectrum’ may now be narrower than that described in 1994 following the revisions to rule 22.7 of the Family Procedure Rules 2010, but the principle nonetheless remains, in my judgment, good.

Butler–Sloss LJ went on to define the questions which may have a bearing on how the court should proceed with such an application (adapted for relevance to the Court of Protection):
 

 

i) whether there is sufficient evidence upon which to make the relevant decision; 

ii) whether the proposed evidence (which should be available at least in outline) which the applicant for a full trial wishes to adduce is likely to affect the outcome of the proceedings;

iii) whether the opportunity to cross-examine the witnesses for the professional care or other agency, in particular in this case the expert witnesses, is likely to affect the outcome of the proceedings;

iv) the welfare of P and the effect of further litigation – whether the delay in itself will be so detrimental to P’s well-being that exceptionally there should not be a full hearing. This may be because of the urgent need to reach a decision in relation to P;

v) the prospects of success of the applicant for a full trial;

vi) does the justice of the case require a full investigation with oral evidence?
In deciding whether to conduct a fact-finding hearing at all, I consider it useful to consider the check-list of considerations discussed by McFarlane J in the case of A County Council v DP, RS, BS (By their Children’s Guardian) [2005] EWHC 1593 (Fam) 2005 2 FLR 1031 at [24]. Following a review of case-law relevant to the issue he stated that:
 

“… amongst other factors, the following are likely to be relevant and need to be borne in mind before deciding whether or not to conduct a particular fact finding exercise:
(a) the interests of the child (which are relevant but not paramount)
(b) the time that the investigation will take;
(c) the likely cost to public funds;
(d) the evidential result;
(e) the necessity or otherwise of the investigation;
(f) the relevance of the potential result of the investigation to the
future care plans for the child;
(g) the impact of any fact finding process upon the other parties;
(h) the prospects of a fair trial on the issue;
(i) the justice of the case.”
There is some (but not universal) acknowledgement at the Bar in this case that this list (with modifications as to (a) to refer to the best interests of ‘P’ rather than ‘the child’) provides a useful framework of issues to consider in relation to the necessity of fact finding in the jurisdiction of the Court of Protection.

 

Those principles are familiar to family lawyers (or at least they were, before the Court of Appeal took its newer position) but are probably fresh to Court of Protection lawyers.

 

The Court decided not to embark on a full-blown fact finding hearing, but did take evidence on some limited allegations which were of particular import. As part of that judgment, the Judge also clarified that hearsay evidence is permissable in the Court of Protection.

 

Hearsay: The factual allegations which I have been required to investigate rely very extensively on what TT has reported to third parties. She has not been called to give evidence at this hearing (no party proposed that she should), and I have therefore had to rely on a range of hearsay accounts, and on records, and interpretations, of her behaviours.
 

Hearsay evidence is plainly admissible in proceedings of this kind; as McFarlane J made clear in LB Enfield v SA [2010] 1 FLR 1836. While ruling (at §29-30) that proceedings in the Court of Protection under the MCA 2005 must fall within the wide definition of ‘civil proceedings’ under section 11 of the CEA 1995, they are civil proceedings before a tribunal to which the strict rules of evidence apply. He went on to conclude (§36) that:
 

“COPR 2007, r 95(d) gives the Court of Protection power to admit hearsay evidence which originates from a person who is not competent as a witness and which would otherwise be inadmissible under CEA 1995, s 5. Admissibility is one thing, and the weight to be attached to any particular piece of hearsay evidence will be a matter for specific evaluation in each individual case. Within that evaluation, the fact that the individual from whom the evidence originates is not a competent witness will no doubt be an important factor, just as it is, in a different context, when the family court has to evaluate what has been said by a very young child”
In all the circumstances, I guard against accepting without careful consideration of the evidence as a whole, the hearsay evidence of what TT told LT and WT as proof of the substance of what is alleged against MJ; this is particularly so given the unchallenged evidence of Dr Joyce that TT has a “very limited understanding of the oath”.

 

This is, as always with Cobb J, a very detailed and well-structured judgment, and he eventually reaches these conclusions about the declarations sought

 

Conclusions

Having regard to the matters listed above, I propose to make the following orders/declarations:
 

 

i) For the reasons fully set out above at §25-29, I declare (under section 15 MCA 2005) that TT lacks capacity to litigate these issues; 

ii) For the reasons fully set out above at §25-29, I declare (under section 15 MCA 2005) that TT lacks capacity to make decisions about her care and residence;

iii) For the reasons fully set out above at §25-29, I declare (under section 15 MCA 2005) that TT lacks capacity to make decisions about her contact with others;

iv) For the reasons fully set out above at §28 and §30, I declare that there is reason to believe (section 48 of the MCA 2005) that TT lacks capacity to consent to sexual relations;

v) For the reasons fully set out above at §30 and §105, I declare that there is reason to believe (section 48 of the MCA 2005) that it would be in TT’s best interests for any education about sexual relations to await the outcome of the criminal trial (in which JJ is a defendant);

vi) For the reasons fully set out above at §8(ii), and §100-102, I find that it is in TT’s best interests that she should continue to reside with her foster carer KK (and that I should make this order under section 15 of the MCA 2005);

vii) For the reasons fully set out above at §8(iv), §100 and §104, I find that it is in TT’s best interests to have no contact with JJ (and that I make this order under section 48 of the MCA 2005);

viii) For the reasons fully set out above at §100 and §103, I find that it is in TT’s best interests to have restricted supervised contact with her mother; this order is made under section 48 MCA 2005; I propose that this should be at a frequency of about twice per week, although with a degree of flexibility. For the time being, the contact should be supervised at least until the conclusion of the criminal trial. At the conclusion of the criminal trial, urgent consideration will be required in relation to whether on-going supervision of contact is in SS’s best interests.

 

 

It does raise important questions – not least being that if the Court of Protection is going to develop a jurisprudence of quasi-care proceedings about vulnerable adults then shouldn’t the parents/carers of those vulnerable adults have access to free legal advice and representation to deal with what can potentially be very grave issues and (as here) potentially extremely serious findings against them of sexual misconduct?

Unravelling the Triad

 

The judgment of Mostyn J in Lancashire County Council and R 2013

 

http://www.bailii.org/ew/cases/EWHC/Fam/2013/3064.html

 

This is an interesting one, particularly as it pulls together a body of medical thinking on the cluster of symptoms which normally end with a finding of a non-accidental “shaking injury”

 

The two features of the classic “Triad” which were present here were a subdural bleed in the brain of the child and retinal haemorrhages. One never wants to see those injuries in a child, and for a long time they have been warning indicators that whatever had happened to the child might require the Courts to become involved, not just doctors.

 

The judgment begins by saying that the LA involved were right to bring the case, that they would have been badly criticised if they had not done so, and though the Judge is disappointed that the fact-finding hearing took some eight months to get going he attributes no blame to any of the parties.

 

 

 

The local authority, who through Miss Heaton QC has conducted its case professionally, coolly, and responsibly, argues also that this was not a case of an assault coming out of a clear blue sky perpetrated by a man of unblemished character. Rather, they say that this father is a man with criminal convictions for unprovoked assaults who had at least once prior to the incident assaulted the mother by placing his hands around her throat. Since the incident he has done the same thing again. He had recently lost his job and they were all living in inadequate cramped accommodation. There were plenty of stressors here, it says, which in combination with the father’s aggressive and impulsive personality should lead me to disbelieve him and to conclude in conformity with Mr Newman (in particular) that this was indeed a case of abusive assault.

 

The medical evidence was not speaking with one sole voice

 

On the other hand, some of the medical evidence suggests that this was an assault, although it is fair to say that the experts do not speak with one voice. The expert consultant paediatric ophthalmologist, Mr Newman, believes it is very much more likely than not that these retinal haemorrhages, both in their type and plenitude, are indicative of non-accidental injury. The expert neonatologist, Professor Wyatt, believes it is more likely than not that this was a non-accidental injury, although his degree of certitude is far less firm. However each of these experts accepts that it is possible that the father’s explanation furnishes the true reason for the injuries. The expert paediatrician, Dr Samuels, and the expert paediatric neurosurgeon, Mr Richards, are more equivocal and each believes that the competing scenarios are equally likely.

 

 

The father’s account was that he had got up to tend to the child in the night and had tripped and fallen on the child.

 

 

 

 

It is agreed that the case really boils down to the question of whether I believe the father or not. If I believe his story that this was an accident where he tripped and fell when holding N then that is the end of it. That story is not incompatible with the expert evidence. Mr Newman, while believing it to be highly unlikely does not rule it out. The other experts, more or less, believe that it is about as likely as the assault theory.

 

 

The Judge summarised current medical thinking in relation to subdural bleeds and retinal haemorrhages, and this will be useful to anyone involved in such a case.  It has been some years since I was last involved in an alleged “shaking” injury case, and I cross my fingers that I never see another, but things have certainly developed very significantly since my last one. Underlining here mine for emphasis.

 

  1. Before I look at the individual contributions I wish to make some preliminary observations:-

i) The presence of subdural and retinal haemorrhages, and for that matter encephalopathy (which taken together constitute the famous “triad” referred to in the jurisprudence and the medical literature), do not of themselves prove anything other than the infliction of a head injury. As Mr Richards said, the triad is an indicator of injury only, not of how it occurred.

ii) Inasmuch as the presence of the triad is, or some of its components are, used in the process of forensic proof then this is based on statistical or empirical evidence, which states that there is a high prevalence of these features in many proven cases of abuse. However I was not given evidence as to how many of these cases were proven as a result of the presence of these features, as opposed to those which were proven to be abusive by reference to other evidence, such as confessions. If many were in the former class then of course the process of logical proof may be said to be circular, as Mr Richards pointed out. Further, it is a fact that very many children who present with head injuries arising from an indisputable accident such as a fall are neither scanned nor subjected to ophthalmological testing. They are just patched up and sent home. This is because a CT scan by definition irradiates the brain, which is something to be avoided wherever possible. For a child of more than three months of age a MRI scan requires general anaesthesia – again a procedure not be undertaken unless unavoidable. Ophthalmological testing requires awkward and unpleasant dilation of the pupils. These tests are only likely to be commissioned where there is either a suspicion of abuse or where there are clear symptoms of head injury, such as persistent vomiting. Therefore the data is compiled from a class which has a high prevalence of suspected abusers. Accordingly it might be said, and Mr Richards agreed, that the sample on which the empirical analysis is based is a false or skewed sample.

iii) In the realm of subdural bleeds there seems to have been a relatively recent shift away from the prevailing orthodoxy. Not so very long ago the presence of a subdural haemorrhage in a recently born child was taken to be strongly indicative of abuse unless the birth was especially traumatic. On the basis of this supposition very many children will have been permanently separated from their parents. Yet, authoritative research over the last decade has demonstrated that this supposition is false. The Rooks paper in 2008 was the last of three important pieces of research and showed that no fewer than 46% of normal births caused subdural bleeding. We now know that many appalling miscarriages of justice must have been perpetrated in reliance on the old, now discredited, orthodoxy. Further, current medical and clinical thinking is now prepared to accept that short falls can in many cases cause subdural bleeds; the view that this could only happen exceptionally is now regarded as outdated. As Mr Richards said to me (and this chimes with the judicial opinions cited by me at para 8(ix) above as well as with Secretary Rumsfeld’s famous apothegm about unknowns) “the more you know the more you know you don’t know”.

iv) The ophthalmological world has not undergone an equivalent shift in thinking. Here the view remains that multitudinous bilateral retinal haemorrhages are strongly indicative of abuse and that it will only be exceptionally that they will be the result of an accident. But this is not a unanimous view. Mr Richards told me of the work of Dr Gillian Adams at the Great Ormond Street Hospital who is apparently collating a body of material which she intends to publish which challenges this orthodoxy. Further he referred me to the work of an American pathologist called Dr Lantz who (among other pieces of similar work) has published an article in the Journal of Forensic Sciences in November 2011 entitled “Fatal Acute Intracranial Injury, Subdural Haematoma, and Retinal Haemorrhages Caused by Stairway Fall”. This was a case study concerning a 7¾ month old child who fell down a flight of six stairs through a vertical height of 1.42m at a pitch of 37°. Sadly he died. An autopsy established that he had not only suffered from subdural bleeding but also from extensive bilateral retinal haemorrhages. This led Dr Lantz to conclude:

“These published reports of original data are discordant and controversial, making the correct classification of a young child death following a reported short fall a diagnostic challenge. Most childhood stairway and low-level falls do not cause serious head injuries. Nevertheless, not all seemingly minor falls are minor. This case report refutes a pervasive belief that childhood low height falls are invariably trivial events and cannot cause subdural bleeding, fatal intracranial injuries, and extensive multi-layered retinal haemorrhages. The harmful and potentially devastating consequences for a caregiver or family facing a false allegation of child abuse obligate physicians to thoroughly investigate and accurately classify paediatric accidental head injuries”

 

 

There are a number of important things in those passages. Mostyn J makes the very good point that the CT scans and eye examinations tend to be done in cases where abuse is suspected or really serious injuries observed. One knows therefore that the symptoms are present in such cases, but what one doesn’t know is whether they may have been present in much milder cases, such as falls from short heights or accidents. 

 

Also that medical orthodoxy has shifted considerably in recent years in relation to subdural bleeds (the figure of how frequent these are in births made me blink, and I dare say it might make others do the same) and it seems that we may be at an early stage on the same path in relation to retinal haemorrhages.

 

 

 

The final expert witness was Mr Peter Richards, consultant paediatric neurosurgeon at the John Radcliffe Hospital in Oxford. In his written report he stated that it is generally considered by most paediatric specialists who deal with infant head injury that low level falls described here do not cause acute subdural haemorrhages, and that a similar thinking applied in the ophthalmological world to retinal haemorrhages. Tellingly he stated that 12 months ago he would have agreed with this view but now he has had cause to doubt it. Only a very small percentage of children who suffer low level falls undergo specialist neuro-radiological investigation. Therefore it is possible that the incidence of low level falls causing subdural bleeding has been underestimated. Indeed in his own practice he had a child who fell off a sofa and who was perfectly well but because that child had a shunt in place it was felt prudent to have a CT scan to make sure that the shunt was working properly. To everyone’s surprise the CT scan showed a subdural haemorrhage. This case, and other cases encountered by him in his medico-legal practice, have led him to question the view that low level falls of the type described here does not lead to subdural bleeding. While he defers to an ophthalmologist in relation to retinal haemorrhages he drew my attention to the work of Gillian Adams to which I have referred which apparently will show that low level falls may cause significant retinal haemorrhaging. In the circumstances from a medical standpoint he could not determine whether the history as given is true or false on the basis of the medical features alone

 

 

There were four very heavyweight experts in this case, drawn from a variety of disciplines. Their evidence was necessary for the Judge to reach a proper finding, and one hopes that the drive towards less experts and faster resolution (remember, this finding of fact hearing took two months longer than the entire duration of proceedings that we are meant to be aiming for) doesn’t end with investigations of this type in future not being sufficiently thorough.

 

 

The Judge then drew these strands together, and considered the totality of the father’s evidence

 

  1. I therefore now state my final conclusions. I am of the opinion that a schism is beginning to form between the subdural and retinal disciplines concerning the forces involved in low level falls. I agree with the submission made by Mr Storey QC that in some respects the medical evidence given on behalf of the respective disciplines is irreconcilable.
  1. I remind myself that medical science is always moving on. It was not that long ago that the bleeding of patients and the use of leeches was de rigueur. Given the striking differences of emphasis and approach by the two disciplines it would in my judgment be dangerous for me to judge this case predominantly by reference to the mainstream orthodox opinion of Mr Newman particularly where there is research in the wings which may question that orthodoxy. If Mr Newman had not made his contribution I doubt whether this case would have been pursued after the subdural reports were in. So my overall assessment of the medical evidence looked at in isolation is that it does not provide me with a sure or firm basis on which to conclude that it was more likely than not that these injuries were caused abusively.
  1. In my opinion the absence of any of the tell-tale concomitant injuries which so often feature in shaking cases is important in helping me to inform the judgment which I must make.
  1. I do not know how the medical profession will resolve the statistical conundrum to which I have referred. Obviously children who have suffered minor falls cannot be routinely scanned and tested ophthalmologically. But until the data referable to these minor falls has been assembled I do not see how a statistically valid survey can be undertaken which can authentically and rationally conclude whether such falls do, or do not, regularly give rise to retinal and subdural haemorrhaging. Further, in order for the empirical work to be sufficiently persuasive to lead to the very serious findings that are sought here there surely has to be a discrimination between short falls from a standing start and the sort of fall described here which must have involved considerable horizontal, vertical and rotational forces. Yet so far as I am aware no such discrimination is made in the medical literature.
  1. And so I turn to the credibility of the father. I do not form the same adverse view of him as a man and a parent as that advanced by the local authority. He has very obvious flaws; but he has qualities also. I judge him to be truthful in his evidence to me, but I have to be alive to the possibility that he is a highly accomplished liar capable of embellishing a pack of lies with convincing snippets of circumstantial detail and by affecting displays of emotion. However in this particular regard I am assisted by the stance of the mother who is represented by the highest quality counsel and solicitors. Having heard all the evidence, having received appropriate advice, and knowing the father better than anyone in the courtroom, she firmly believes that he is telling the truth.
  1. In judging the father’s credibility I do not place any weight on his criminal record as being suggestive of a propensity to assault his infant daughter. The crimes in question, while deplorable, are of a totally different character to the one alleged here. By the same token I do not derive any assistance in my task from the two ugly and unpleasant incidents where the father manhandled the mother. Again, this conduct, which is much to be deprecated, is in a class apart from the conduct which is alleged here. Further, I do not accept that this was a family beset by stress. In fact the evidence shows that the family was living a mundane quotidian existence where the focus of attention of the parents was their beloved daughter.
  1. If this was a case of abuse then it was a very bad case indeed because it would not only have involved a violent shaking but then the hurling of N, or the bashing of her face, against a hard surface. It would have been an assault in two parts. This takes the theory beyond a momentary loss of self-control into the territory of sheer malignity. I consider this to be unlikely. On the other hand the father’s account is perfectly consistent with both the haemorrhages and the facial wounds. Mr Rowley QC submitted, that when looking at this aspect the process of logical reasoning known as Occam’s Razor favours the father’s case. I agree. Further, there are aspects to the local authority’s theory that are problematic. If N was crying loudly and incessantly, so much so that the father snapped and brutally assaulted her in the manner alleged, then why did these cries not wake the mother up? If N was crying loudly and incessantly why did the father not simply take her upstairs to her mother? No satisfactory answers to these questions were given to me.

 

 

[Of course, being trite, the last two questions are true of almost every case of physical abuse that is actually proven. We will never know why the other parent did not wake up, or why the parent who felt that they were about to lose it faced with an inconsolable baby doesn’t just walk away. I didn’t feel, personally, that the last two questions really add much. Nor would I necessarily want to see Judges placing huge weight on the underlined passage – the fact that mum believes dad isn’t all that helpful necessarily.  I can see why in this case, they added to a preponderance of evidence that was pointing towards exonerating the father, of course]

 

Despite those slight qualms about the final summation, this is a very rigorous judgment, drawing together some important strands and highlighting the tension between medical thinking on subdural bleeds and retinal haemorrhages and that there is research around or forthcoming which challenges the orthodox view on the latter.

 

This case is likely to be a good starting point for any lawyer faced with a case involving such injuries.

 

 

 

 

You be frank, I’ll be earnest

 

Another judgment from Mr Justice Baker, who I’m becoming increasingly fond of (although I think his decision about termination of parental responsibility probably will get overturned by the Court of Appeal).

This is Re L and M (Children) 2013

http://www.bailii.org/ew/cases/EWHC/Fam/2013/1569.html

 

It is, sadly, not a terribly unusual case – unusual in society in general but not in the field I practice in. There were multiple and serious injuries to the child, and the medical opinion as to how these had been caused was at variance with how the parents said the injuries had been caused. The Judge carefully considered all of the evidence, and the judgment is a perfect analysis of the caselaw and the competing factors that the Judge has to consider, not least of course the well-known quotation from Dame Butler-Sloss   “The judge in care proceedings must never forget that today’s medical certainty may be discarded by the next generation of experts or that scientific research would throw a light into corners that are at present dark.” 

 

The findings against the parents, including that they had not been honest in their account, were made by the Judge. So far, so commonplace, but there are two features in the case which lift it, and make it worthy of discussion.

 

Firstly, the judicial approach towards the instruction of experts in the case.  (It will not surprise you to learn that I completely agree with the Judge here, and commend him for saying these things. I have grave doubts that a case like Al Alas Wray would reach the same outcome, were we to try it again next year, because getting to the truth required the Court to be amenable to the instruction of multiple experts and no doubt delays were incurred in getting to the truth, which was that the parents were not responsible for the dreadful injuries and that there was a medical cause, allowing them to be reunited with a child rather than that child being adopted. It is simply, but ghastly, to imagine, how that case would have developed if the Court had simply heard evidence from the (very eminent) treating medical professionals.

We don’t hear, for my mind, enough about Al Alas Wray. We have set off upon a path, in family justice, of child rescue dominating over family preservation, no doubt in part due to the rightful sense that what happened to Baby P should never happen again. But what happened to the Al Alas Wray family ought not to happen to other families, and what could have been far worse (that their child was wrongly permanently separated from them) is equally something to be avoided if at all possible.  It worries me deeply that such cases might slip by us in the future.

    1. At this point, before turning to the parents’ evidence, I mention some points of wider importance that emerged from the medical evidence in this case.

 

    1. As mentioned above, no MRI was carried out on M in August 2011. Dr. Stoodley reminded the court of the recommendation of the Royal College of Radiologists and the Royal College of Paediatrics and Child Health (“Standards for Radiological Investigations of Suspected Non-accidental Injury”, March 2008) that an MRI scan should be performed if an initial CT scan of a child is abnormal (para 15.3). He informed the court that there have been a number of recent cases in which such MRI has not been performed in these circumstances. Plainly from a forensic point of view, the absence of an MRI contemporaneous to the other imaging is a lacuna in the evidence. All the experts in this case agreed that an MRI should have been carried out at the time. I recognise, of course, that there may be clinical reasons why the treating physicians choose not to carry out imaging. I also note Mr. Richards’ observation that resources for MR imaging are scarce. I share Dr. Stoodley’s view, however, that “whilst the lack of an MRI scan at the time of M’s acute admission will not have affected her clinical care, an opportunity was potentially lost to gain useful forensic information”. It may therefore be appropriate for the professional bodies to review this issue to establish the extent to which the Royal Colleges’ recommendations are being followed

 

    1. There is, in addition, a more fundamental point of general importance. This case demonstrates yet again the invaluable role played by medical experts in cases of alleged non-accidental injury. There is rightly a renewed scrutiny on the use of experts in family proceedings, and some potent arguments have been advanced against what is perceived as the misuse and overuse of experts. In response, the Family Procedure Rules have been amended so as to impose more stringent regulation of the instruction of experts. Henceforth, under the amended rule 25.1, “expert evidence will be restricted to that which in the opinion of the court is necessary to assist the court to resolve the proceedings”.

 

    1. In difficult cases of non-accidental injury, it will continue to be the case that expert evidence from a variety of disciplines will be necessary to assist the court to resolve the proceedings. In the recent case of Devon CC v EB and others cited above, I observed at para 156

 

“Judges will be rigorous in resisting the call for unnecessary use of experts in family proceedings but equally will not hesitate to endorse the instruction of experts where, under the new rules, they are satisfied that they are necessary for the determination of the issues in proceedings.”

    1. This case provides a further example. The medical picture presented to Judge Marshall created what she thought, and Munby LJ in the CA agreed, was a conundrum. In directing a retrial, Munby LJ, whilst leaving the scope of the retrial to be decided by the judge conducting it, suggested that there should include a more exhaustive search of the literature. The instruction of Dr. Stoodley, a further search of the literature by the experts, and the process of the retrial in which the experts have each made an important contribution, have enabled this court to resolve the conundrum.

 

    1. Court-appointed experts play a vital role in difficult cases of non-accidental injury. As this case demonstrates, it will ordinarily not be sufficient to rely on the opinion of the treating physicians in this type of case. In respect of M’s rib fractures, the court-appointed experts provided insights that would not otherwise have been available to the court. The radiologists who initially reported on the X-rays, but who were not called to give evidence in the hearing, identified evidence further possible ten rib fractures. Neither Dr. Chapman nor Dr. Halliday identified any fractures at these points, and the local authority has not pursued this issue. As Mr. Kirk pointed out in closing submissions, the consequence is that this case looks somewhat different from how it appeared initially to the treating physicians. Had the case been presented purely on the basis of their interpretations, the focus of the court would have been significantly different. In respect of the skull fractures, as both Dr. Stoodley and Mr. Richards recognised, it is possible that in the past lucencies that had been routinely but wrongly diagnosed as fractures in spite of the fact that it was recognised that fissures and other abnormalities existed. Both experts had been involved in a case in which they had diagnosed a fracture but a bone pathologist had identified a traumatised suture. As Mr. Richards said in evidence, “we are beginning to get pathological evidence coming out to make us re-think our thoughts about fissures and fractures in the same way [as] a few years ago we got more evidence about birth causing subdural haemorrhages.” This is another example of how medical opinion about non-accidental head injury is continuing to evolve.

 

  1. This case provides further illustration of the important role of court-instructed experts in these difficult cases where the medical evidence is unusual and therefore outwith the experience of many hospital doctors. In the circumstances, it goes without saying that it is vital that experts of sufficient calibre and experience should continue to be available where the court considers their instruction necessary to resolve the proceedings. In the course of this trial, I have been informed that a number of doctors commonly instructed in these difficult cases are not at present accepting instructions. Any impediment to the instruction of experts in these difficult cases will make it much harder for the court to achieve a just and timely outcome for the child.

 

And secondly, as this was just a finding of fact hearing, there would then be a phase two, where assessments took place as to the future risk of harm that the parents might pose. The Judge reinforced this :

 

    1. I make these findings only after prolonged thought and with regret and reluctance. I know these parents have endured a great deal of hardship over the past few years, in particular the tragic loss of C and now these protracted proceedings leading to these findings. I accept that in many other ways the mother and father have been good parents to L and M. I accept that they are devoted to their children. I accept that they are desperate to care for them again.

 

  1. All children should wherever possible be brought up by their parents. That is as true of L and M as of any other children. I do not regard these findings as the end of the story. All the professionals in the case – the social workers, the guardian and the court – must do what we can to see if L and M can be safely returned to their parents. But the primary responsibility now lies with the parents themselves. I urge them, even at this late stage, to be more frank with the court so that we can all understand what happened to M and work together to ensure that she and her brother are safe in the future.

Nothing terribly new or controversial there, but a warning between the lines about how such cases will be dealt with in our brave new world.

The President has indicated that cases involving non-accidental injuries will only go beyond the 26 week limit in exceptional cases, and the mere fact of a finding of fact hearing being required won’t be sufficient to warrant a delay. Well, that’s all well and good, but what it will mean in practice is that where now, these parents would have something like a 10-14 week period to reflect on the judicial findings, perhaps accept them, perhaps partially move towards them, perhaps put some practical or therapeutic arrangements in place, they will from autumn of this year, probably get a 2-3 week period to do so.  The consequence of findings in a case like this, might be that a mother and father need to separate from one another, and it seems to me inhumane to expect them to make decisions of such gravity so quickly. Additionally, that assessment of future risk would probably have been undertaken by an independent expert, whereas from autumn of this year, it almost certainly will be undertaken by the social worker, who just 2-3 weeks earlier was effectively prosecuting those findings. It isn’t much time to turn around the parents views, and still less for the parents to be able to turn around the view of the social worker.

 

We shall see. The revised PLO is nearly upon us, and it will be happening, so all that we in the system can do is to try our best to make it work fairly for all involved. I’ll try to stop carping from the sidelines and try to come up with positive solutions as to how we make this system work fairly, but my fundamental thought is that it WILL require WORK to make it fair and that approaching the new regime as “like the old one but faster” won’t be sufficient, people in the system will have to be more alive to the need for us to get decisions that are not only swift but RIGHT.

 


 

“If you change your mind, I’m the first in line”

 The Supreme Court decide that a Judge CAN change their mind after delivering a Judgment.

I blogged about the case in the Court of Appeal here :-

http://suesspiciousminds.com/2012/07/19/it-was-professor-plum-in-the-kitchen-with-a-candlestick-no-it-was-professor-plum-and-miss-scarlett/

 In brief, a Judge heard a finding of fact hearing about an injury to a child, gave a judgment that the father was the sole perpetrator. After judgment, father’s representative sent in some aspects for clarification  (i.e things that they considered had not been properly considered in the judgment) and some months later, at another hearing, the Judge announced that she had changed her view of the case and that it was not possible to exclude mother from having caused the injuries, and stopped short therefore of a positive finding that father had caused the injuries.

 The mother, who had of course, been off the hook, in the initial judgment, appealed.

 The Court of Appeal decided, two to one, that the Judge could not change her mind about the judgment she had given (save for if some fresh evidence had come to light) and that she was bound by her first judgment.

 The father, understandably, having been all the way in, then half-way out, then all the way in again, appealed that.

 The Supreme Court determined the issue in Re L and B (Children) 2013    

 

http://www.bailii.org/uk/cases/UKSC/2013/8.html

 One of the things that troubled me about the Court of Appeal decision was the unspoken but inexorable consequence that although an advocate unhappy with a judgment is told to raise points that needed clarification or exploration with the judge prior to any appeal, if doing so cannot lead to a Judge changing their mind, it seems a rather fruitless exercise.   I think for that reason, the Supreme Court were right in giving the Judge power to change the findings made if the representations swayed her.

 The Supreme Court concluded here that what had happened in reality, was the Judge reconsidering the conclusions reached in the light of the representations made by father’s counsel, and had changed her mind accordingly.

 

  1. Thus one can see the Court of Appeal struggling to reconcile the apparent statement of principle in Barrell [1973] 1 WLR 19, coupled with the very proper desire to discourage the parties from applying for the judge to reconsider, with the desire to do justice in the particular circumstances of the case. This court is not bound by Barrell or by any of the previous cases to hold that there is any such limitation upon the acknowledged jurisdiction of the judge to revisit his own decision at any time up until his resulting order is perfected. I would agree with Clarke LJ in Stewart v Engel [2000] 1 WLR 2268, 2282 that his overriding objective must be to deal with the case justly. A relevant factor must be whether any party has acted upon the decision to his detriment, especially in a case where it is expected that they may do so before the order is formally drawn up. On the other hand, in In re Blenheim Leisure (Restaurants) Ltd, Neuberger J gave some examples of cases where it might be just to revisit the earlier decision. But these are only examples. A carefully considered change of mind can be sufficient. Every case is going to depend upon its particular circumstances.

Exercising the discretion in this case

  1. If that be the correct approach, was this judge entitled to exercise her discretion as she did? Thorpe LJ concluded (at para 56) that she was bound to adhere to the conclusion in her December judgment, having recited (at para 55) the clarity of the conclusion reached, the general assumption that the order had been perfected, the general implementation of her conclusion, her adherence to it at the hearing on 23 January, and the absence of any change in the circumstances and the “general slackness” that left the order unsealed. He was also somewhat puzzled as to why the result of her change of mind was “seemingly to elevate the father from low to first consideration as the primary carer, albeit the rationality of that elevation is not clear to me, given that he remained a suspected perpetrator” (para 56). Sir Stephen Sedley held that something more than a change in the judge’s mind was required, because “it will only be exceptionally that the interests of finality are required to give way to the larger interests of justice” (paras 79, 80). Rimer LJ, on the other hand, held that the judge was “honouring her judicial oath by correcting what she had come to realise was a fundamental error on her part. . . . the judge would be presented with real difficulty in her future conduct of this case were she required to proceed with it on the basis of a factual substratum that she now believes to be wrong. The court should not be required to make welfare decisions concerning a child on such a false factual basis”. It could not be in the interests of the child to require a judge to shut his eyes to the reality of the case and embrace a fiction.
  1. The Court of Appeal were, of course, applying an exceptionality test which in my view is not the correct approach. They were, of course, right to consider the extent to which the December decision had been relied upon by the parties, but in my view Rimer LJ was also correct to doubt whether anyone had irretrievably changed their position as a result. The care plan may have been developed (we do not have the details of this) but the child’s placement had yet to be decided and she had remained where she was for the time being. The majority were, of course, also right to stress the importance of finality, but the final decision had yet to be taken. I agree with Rimer LJ that no judge should be required to decide the future placement of a child upon what he or she believes to be a false basis. Section 1(1) of the Children Act 1989 provides that where a court determines any question with respect to the upbringing of a child the welfare of the child shall be its paramount consideration. While that provision does not apply to procedural decisions made along the way, it has to govern the final decision in the case.
  1. Mr Charles Geekie QC, on behalf of the mother, argues that even if the judge was entitled to change her mind, she was not entitled to proceed in the way that she did, without giving the parties notice of her intention and a further opportunity of addressing submissions to her. 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.
  1. For those reasons, therefore, we ordered that the father’s appeal against the decision of the Court of Appeal be allowed. No party had sought to appeal against the judge’s decision of 15 February 2012, so the welfare hearing should proceed on the basis of the findings in the judgment of that date. We were pleased subsequently to learn that agreement has now been reached that Susan should be placed with her half-brother and maternal grandparents under a care order and, after a settling-in period, have visiting and staying contact with her father and her paternal family. The local authority plan to work with both families with a view to both mother and father having unsupervised contact in the future and it is hoped that the care order will be discharged after a period of one to two years.

 

 The Supreme Court then took a look at the issue of whether a Judge could change her mind post the order being sealed. (In this case, the sealing of the order had taken place long after the judgment had been given, or maybe it did, and there is authority to suggest that a judgment cannot be changed after the order is sealed or maybe there isn’t)

 

  1. On the particular facts of this case, that is all that need be said. But what would have been the position if, as everyone thought was the case, the order made by the judge on 15 December 2011 had been formally drawn up and sealed? Whatever may be the case in other jurisdictions, can this really make all the difference in a care case?
  1. The Court of Appeal, despite having themselves raised the point, do not appear to have thought that it did. Sir Stephen Sedley said that it seemed to be of little or no consequence that the order recording the first judgment had not been sealed or that a final order in the case remained to be made (para 74). Both Thorpe and Rimer LJJ held that the relevant order in care proceedings is the final care order made at the end of the hearing. They expressly agreed with Munby LJ in In re A (Children: Judgment: Adequacy of Reasoning) [2011] EWCA Civ 1205, [2012] 1 WLR 595, para 21. This was a case in which the mother challenged the adequacy of the judge’s reasons for finding her complicit in the sexual abuse of her daughter in a fact-finding hearing in care proceedings. Having quoted my observation in In re B (Children: Care Proceedings: Standard of Proof) (CAFCASS intervening) [2009] AC 11, para 76, that a split hearing is merely part of the whole process of trying the case and once completed the case is part-heard, Munby LJ continued, at para 21:

“Consistently with this, the findings at a fact-finding hearing are not set in stone so as to be incapable of being revisited in the light of subsequent developments as, for example, if further material emerges during the final hearing: see In re M and MC (Care: Issues of Fact: Drawing of Orders) [2003] 1 FLR 461, paras 14, 24.”

  1. This court has since agreed with that proposition. In Re S-B (Children)(Care Proceedings: Standard of Proof) [2009] UKSC 17, [2010] 1 AC 678, all seven justices agreed that:

“It is now well-settled that a judge in care proceedings is entitled to revisit an earlier identification of the perpetrator if fresh evidence warrants this (and this court saw an example of this in the recent case In re I (A Child) (Contact Application: Jurisdiction) (Centre for Family Law and Practice intervening) [2010] 1 AC 319).” (para 46)

  1. There are many good reasons for this, both in principle and in practice. There are two legal issues in care proceedings. First, has the threshold set by section 31(2) of the 1989 Act been crossed? Secondly, what does the paramount consideration of the child’s welfare require to be done about it? Much of the evidence will be relevant to both parts of the inquiry. It may be very helpful to separate out some factual issues for early determination, but these do not always neatly coincide with the legal issues. In this case, for example, there was no dispute that the threshold had been crossed. Nevertheless, it was convenient to attempt to identify who was responsible for the child’s injuries before moving on to decide where her best interests lay. In such a composite enquiry, the judge must be able to keep an open mind until the final decision is made, at least if fresh evidence or further developments indicate that an earlier decision was wrong. It would be detrimental to the interests of all concerned, but particularly to the children, if the only way to correct such an error were by an appeal.
  1. This is reinforced by the procedural position. As Munby LJ pointed out in In re A [2012] 1 WLR 595, para 20, in the context of a fact-finding hearing there may not be an immediate order at all. It was held in In re B (A Minor) (Split Hearings: Jurisdiction) [2000] 1 WLR 790 that the absence of an order is no bar to an appeal. Nevertheless, it would be very surprising these days if there were no order. In Re M and MC (Care: Issues of Fact: Drawing of Orders) [2002] EWCA Civ 499, [2003] 1 FLR 461, the Court of Appeal ruled that the central findings of fact made at a fact finding hearing should be the subject of recitals to an order issued there and then. But this is merely a recital in what is, on any view, an interlocutory order.
  1. Both the Civil Procedure Rules and the Family Procedure Rules make it clear that the court’s wide case management powers include the power to vary or revoke their previous case management orders: see CPR r 3.1(7) and rule 4.1(6) of the Family Procedure Rules 2010 (SI 2010/2955). This may be done either on application or of the court’s own motion: CPR r 3.3(1), rule 4.3(1). It was the absence of any power in the judge to vary his own (or anyone else’s) orders which led to the decisions in In re St Nazaire 12 Ch D 88 and In re Suffield and Watts, Ex p Brown 20 QBD 693. Where there is a power to vary or revoke, there is no magic in the sealing of the order being varied or revoked. The question becomes whether or not it is proper to vary the order.
  1. Clearly, that power does not enable a free-for-all in which previous orders may be revisited at will. It must be exercised “judicially and not capriciously”. It must be exercised in accordance with the over-riding objective. In family proceedings, the overriding objective is “enabling the court to deal with cases justly, having regard to any welfare issues involved”: rule 1.1(1) of the Family Procedure Rules. It would, for the reasons indicated earlier, be inconsistent with that objective if the court could not revisit factual findings in the light of later developments. The facts of in In re M and MC [2003] 1 FLR 461 are a good example. At the fact finding hearing, the judge had found that Mr C, and not the mother, had inflicted the child’s injuries. But after that, the mother told a social worker, whether accurately or otherwise, that she had inflicted some of them. The Court of Appeal ruled that, at the next hearing, the judge should subject the mother’s apparent confession to rigorous scrutiny but that, if he concluded that it was true, he should alter his findings.
  1. The question is whether it makes any difference if the later development is simply a judicial change of mind. This is a difficult issue upon which the arguments are finely balanced, not least because the difference between a change of circumstances and a change of mind may not be clear-cut.
  1. On the one hand, given that the basis of the general rule was the lack of a power to vary the original order and there undoubtedly is power to vary these orders, why should it make any difference in principle if the reason for varying it is that, on mature reflection, the judge has reached a different conclusion from the one he reached earlier? As Rimer LJ said in the current case at para 71, it cannot be in the best interests of the child to require the judge to conduct the welfare proceedings on the basis of a false substratum of fact. That would have been just as true if the December order had been sealed as it was when it had not.
  1. In this respect, children cases may be different from other civil proceedings, because the consequences are so momentous for the child and for the whole family. Once made, a care order is indeed final unless and until it is discharged. When making the order, the welfare of the child is the court’s paramount consideration. The court has to get it right for the child. This is greatly helped if the judge is able to make findings as to who was responsible for any injuries which the child has suffered. It would be difficult for any judge to get his final decision right for the child, if, after careful reflection, he was no longer satisfied that his earlier findings of fact were correct.
  1. Mr Geekie, on behalf of the mother, also argued that the sealing of the order could not invariably be the cut-off point. If a judge is asked, in accordance with the guidance given in English v Emery Reimbold & Strick Ltd (Practice Note) [2002] EWCA Civ 605 [2002] 1 WLR 2409, as applied to family cases in In re A [2012] 1 WLR 595, to elaborate his reasoning and in doing so realises that his original decision was wrong, should he not, as part of that process, be entitled or even required to say so? The answer to this point may very well be that the judge should indeed have the courage to admit to the Court of Appeal that he has changed his mind, but that is not the same as changing his order. That is a matter for the Court of Appeal. One argument for allowing a judicial change of mind in care cases is to avoid the delay inevitably involved if an appeal is the only way to correct what the judge believes to be an error.
  1. On the other hand, the disconcerting truth is that, as judges, we can never actually know what happened: we were not there when whatever happened did happen. We can only do our best on the balance of probabilities, after which what we decide is taken to be the fact: In re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35, [2009] AC 11, para 2. If a judge in care proceedings is entitled simply to change his mind, it would destabilise the platform of established facts which it was the very purpose of the split hearing to construct; it would undermine the reports, other evidence and submissions prepared on the basis of the earlier findings; it would throw the hearing at the second stage into disarray; and it would probably result in delay.

 

 

 

They then realise that this is really really really difficult, and sidestep the question in a way that any rugby fan would admire.

 

The arguments outlined above are so finely balanced that we shall refrain from expressing even a provisional view upon it. In our view the preferable solution would be to avoid the situation arising in the first place.

 

That, for my mischievous mind, raises the interesting question of what happens if a Judge delivers a finding of fact judgment, and instantly in front of the parties, produces an order that she has prepared setting out the findings that were made and stamps it. 

It seems that the judgment is then frozen, and can’t be altered, and that she would not be entitled to change her mind despite any representations, and is simply inviting the wounded parties to put up and appeal, or shut up.   That’s probably grounds for appeal in itself.

Probably good practice is for a short window of opportunity (say the appeal window) to be given, before the order is then stamped, and the Judge considers only representations made within that window.

But, what if, as happened here, father makes representations, and the judgment changes? Does mother then get a second window to make her own representations, to try to change the judge’s mind a second time?  Her window of appeal must, it seems to me, start from the time that the Judge settles an order arising from the judgment  (you appeal orders, not findings). 

And if mother succeeds, is that the end of it, or does father get another crack at it?

Could we end up with an interminable oscillation between judgment and representations to alter that judgment?

“A Judge too far”

 

 

A quick discussion on the Court of Appeal decision in Re J-L (Children) 2012

 

 

 

The Court of Appeal sat in a very short hearing to determine a case where a Judge, when dealing with a fact-finding hearing in care proceedings, made a particular set of findings that deviated from the schedule of proposed findings drawn up by the Local Authority and found that the children had witnessed inappropriate sexual behaviour whilst in the care of their mother.

 

 

http://www.familylawweek.co.uk/site.aspx?i=ed111465

 

 

 

I blogged about this one prior to the full transcript being up, here:-

 

http://suesspiciousminds.com/2012/12/05/i-still-havent-found-what-im-looking-for-or-going-off-menu/  

 

 

based on the family law week summary that suggested that the Court of Appeal had ruled that it was not open to a Judge to make findings that were not on the menu / schedule of findings placed before him.

 

Reading the full transcript, I don’t think the Court of Appeal go that far at all. There is not, in my view, such a principle established by this case.

 

 In fact, although it is a short one page judgment, I can’t find a single sentence that hints at the Court of Appeal determining whether or not a Judge can go “off-menu”  – it simply didn’t fall to be determined as a result of matters I set out below.   

 

 [What they do say is that on the EVIDENCE before the Court, the particular finding made wasn’t one open to the Judge to find. 

 

It does seem plain to me that the judge understandably was very concerned about these three very young children living in the mother’s care for those two or three months in early 2008 and was concerned about the general adult behaviour that they will have been exposed to.  But it is plain from the material available to the judge that it was not open to him to go further and explicitly find, albeit on the balance of probabilities, that the children had actually been exposed to and witnessed sexual acts between the young people and adults attending the property

 

[It being fairly pertinent that there was no material or allegation or disclosure before the Court that the children had witnessed this sort of thing. There is nothing unusual about the Court of Appeal saying that a Judge couldn’t make findings on the evidence before them, nothing new to see there.  But wait around, because the next bit is good]

 

 

 

By the time of the hearing, each of the parties had reached a decision that the finding the Judge made in relation to those matters was a step too far, and that it would be appropriate for that particular finding to be struck out. Indeed, the Local Authority had been in liaison with the other parties to try to formulate some wording which would be acceptable to all.

 

The Court of Appeal were rightly pretty irascible about  the need for an Appeal hearing at all, given that all parties were of the view that the findings needed to be adjusted and the offending paragraphs struck out

 

6. The outcome of that is that there is effectively no opposition to the appeal and I, having read the judgment and the documents that have been filed, readily accede to that position.  It does seem plain to me that the judge understandably was very concerned about these three very young children living in the mother’s care for those two or three months in early 2008 and was concerned about the general adult behaviour that they will have been exposed to.  But it is plain from the material available to the judge that it was not open to him to go further and explicitly find, albeit on the balance of probabilities, that the children had actually been exposed to and witnessed sexual acts between the young people and adults attending the property. 

7. Why is it, I would ask rhetorically, that the court has had to sit this morning and counsel and those who attend them for the mother and the local authority have come from the north of England to London for a hearing which has taken a very short time and which is effectively not contested?  We were told that attempts were made to find an alternative form of words that all parties would accept in place of the words that this order from this court will now strike out.  That has not been possible and we were told by Mrs Clark for the local authority that the principal hurdle preventing that being accomplished was that the father’s legal team had failed to engage in the process in a way that either indicated total opposition or came up with a formula that they would have agreed to.  I understand what is said.  It is regrettable that nobody communicated with this court at an earlier stage to identify the fact that the appeal was not contested.  This court could have directed compliance if necessary from the other parties in a process of drawing up an agreed order.

8. That said, it seems to me that if any words are now to be put back into the gap that has opened up through the excision of the quoted words we are going to delete today, that is a matter for the parties and the lower court and not for the Court of Appeal, in the absence of any agreement.

 

 

 

I think it would be a risk, in any future appeal where some of the parties are seeking to avoid the need for an appeal by reaching a consensus to be the one lone wolf not engaging in that process.   (Of course, it is different if the party has a different view to the attempted consensus and there is a chasm which can’t be bridged, even following attempts, but here, it seems as though father’s team just sat out those discussions)

 

 

The Court of Appeal don’t really address what would actually happen in this situation on the ground.  There’s almost an implication that an appeal hearing isn’t needed if all of the parties could agree a form of wording on the finding in dispute.

Now, imagine that the Judge makes a string of findings, lets say 8 in all, and the parties then write to her after the Judgment and say  “None of us agree with you on finding 7, and we think you should say X”

 

 

There’s a bit of a difference in the parties doing that of their own accord, and the Court of Appeal having approved that. In the latter case, the Judge has been told that finding 7 won’t wash, and needs to be sorted out.

 

In the former, I can think of many Judges who would say “Well, thank you for your kind interest in my judgment, and contribution to it after the event”,  and then in tones similar to Miranda Richardson in Blackadder, add  “Who’s Judge?”

 

[If the Court of Appeal instead mean that the parties in this sort of situation in the future could have lodged their revised wording to finding 7 and the Court of Appeal could have just agreed it without a hearing, that also seems iffy to me.  A Judge wasn’t necessarily wrong, let alone plainly wrong, just because all four advocates think they were, and a determination as to whether they were ought to be for the Appeal Court, not just to rubber stamp an agreeement between the parties as to what the judgment OUGHT to have said. But I am, perhaps, old-fashioned in that regard. ]

 

Who's Queen?

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

 

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

 

 

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

 

 

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

 

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

 

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

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

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

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

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

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

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

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

 

 

 

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

 

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

 

 

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

 

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

 

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

 

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

 

 

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

 

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

 

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

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

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

 

 

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

 

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

 

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

 

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

 

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