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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.

 

“I need not descend into detail”

 

So said the original trial judge in Re B (Children : Long Term Foster Care ) 2014

 

http://www.familylaw.co.uk/news_and_comment/re-b-children-long-term-foster-care-2014-ewca-civ-1172#.U_YJE2NuVjM

 

The Court of Appeal took the opposite view.

 

 

[That might be the shortest case summary I’ve ever written. Let me see if I can get it into a Tweetable format   “Re B – judge says less is more, Court of Appeal says 'fraid not”]

 

 

Some slight elaboration – there was a point in the case where the plan for the children was placement with mother probably under a Supervision Order – that was the case by the end of July 2013. But by the time of the final hearing (September 2013), the Local Authority plan was for the children to remain in long term foster care and be subject to Care Orders.

 

The Judge agreed with the LA and made Care Orders at the final hearing.

 

There are some odd nuggets in the case, not least being that the mother’s new boyfriend was using the name of his brother as an alias from time to time, only to find that his brother’s Certificate of Convictions was worse than his own, that either the children were brandishing knives at neighbours or cutting string off a tree branch, and so forth.

 

There simply wasn’t enough in the judgment to explain to the satisfaction of the Court of Appeal why that was the case (they sent it back for re-hearing, they weren’t necessarily saying that the Judge was WRONG, but that the judgment didn’t do sufficient to show whether he was right or wrong). See the underlined section in paragraph 66 for the pithy quotation that will be deployed in all cases (since in any case, one can always find at least one advocate who thinks that the case is ‘finely balanced’ and persists in saying so throughout. Sometimes, to be fair, that advocate is me…)

 

65.  Mr Hall submitted in his skeleton argument that when the new concerns arose in the summer of 2013, the case was finely balanced, and in oral submissions, he acknowledged that there was a mixed picture including extreme concern at times and at other times positive involvement and engagement by M. That is, in my view, an accurate description of the situation. Mr Hall’s submission was that the judge scrutinised the evidence sufficiently, made the required findings, took into account the positives in relation to M as well as the negatives, and carried out the necessary balancing exercise so was entitled to find that care orders should be made. Indeed, he said, proceedings could have been taken earlier. It was notable, however, that in seeking to support the judgment, Mr Hall was obliged to have regular recourse to the underlying reports and statements from which he sought to draw further material to justify the care orders. That this was necessary reinforced my overall conclusion that the judgement did not contain a sufficient review of the evidence that was available to the judge.

 

66…. The basis on which we allowed the appeal was that the judgment was flawed in its approach to the events which led to LA’s change of mind and was lacking in the detail that was required to substantiate the decision taken. The more finely balanced the decision in a case, the more exacting must be the judge’s approach to the evidence, the more precise his findings of fact on pivotal matters and the fuller the explanation of his route to his determination.

 

67…the judge’s treatment of the background history compounded the problems with his treatment of more recent events. Mr Hall submitted that the social work chronology revealed pervasive profound concerns about the children. For my part, I have no doubt that a study of the history had the capacity to contribute valuable material to the judge’s decision but, in my view, there was no alternative but to look at it in some detail because it was a mixed picture. There were significant problems but we also know that the case was periodically closed by social services following short interventions and that at times, assessments were complimentary about M and sympathetic to her as a victim of prolonged domestic violence. The threshold criteria agreed were far from detailed and could not be relied upon as sufficiently informative of the history. Accordingly, it was not sufficient for the judge to deal with that history (apart from domestic violence from F) in a single short paragraph (§7) summarising the themes and concluding with the observation, “I need not descend into detail”. In summarising things shortly in this way, the positives and negatives were lost and there was no picture of what was actually happening to the children.

 

[68] In short, this was a case which could only be resolved by a detailed and critical review of the evidence, old and new, with each step of the way meticulously charted in the judgment. I have great sympathy with the judge who was trying to reach a determination for the children with reasonable promptness, within the confines of a two day time estimate, and without much offered to him by way of direct evidence. I am conscious that he took trouble to reflect on his decision before giving judgment. However, I am afraid that, for the reasons I have set out, his determination cannot stand.

 

 

The thrust of Court of Appeal judgments over the last year, and this goes hand in hand with the transparency agenda, is that a person ought to be able to pick up and read a judgment and understand why the decisions were made, without rummaging around in the background material to try to plug the gaps. It needs to be spelled out.

 

That has consequences, not least time pressures on the judiciary. A day spent writing a judgment is a luxury in terms of workload, but a necessity now if it is to be fireproof for the Court of Appeal. Where are all these extra Judge days to be found?

[I can't leave para 67 without saying - well, of course the threshold criteria were far from detailed, that's because we're told to squish it into 2 pages. You will see more of this]

 

 

Split-hearings and “non-accidental injuries”

The Court of Appeal decision in Re S (A child) 2014.

 http://www.bailii.org/ew/cases/EWCA/Civ/2014/25.html

 

 Very quick summary, to persuade you that this case is worth reading

 

  1. Guidance on whether split-hearings are needed and when (hint, the new Court of Appeal isn’t keen on them any more – expect to be taken to this case during any Case Management Hearing where the issue is physical injury or sexual harm)
  2. Confirmation that for “findings of fact” the appeal test is PLAINLY WRONG, not wrong.
  3. Really important stuff about threshold criteria and notably criticism of the phrase “non-accidental injuries” and the need to go to the statutory construction of the threshold criteria

 

If you aren’t familiar with the term, “split-hearing” is what happens when there is a narrow (although sometimes complex) factual issue to determine in a case involving children, and that resolving that factual dispute is done at a hearing with evidence and cross-examination and a judgment AND THEN the case goes on to a hearing to decide what the Court should do about those facts that have been proved or disproved (what is usually called the Welfare stage)

 

For the majority of children cases, the hearing about the factual dispute and the welfare dispute (What happened, what should happen next) are all dealt with together, but there are some cases where historically the hearings have been split in two (hence “split hearing”) and had a hearing to decide “What happened” first and then “What should happen next” later.

 

Indeed, for a while, split-hearings were very much in vogue and the higher courts were keen on them and critical where they had not happened. There are a few reasons for that

 

  1. If a parent is accused of injuring a child and it can be proved that they didn’t, the sooner that happens the better
  2. Everyone can plan for the future of the child KNOWING what happened, rather than speculating about what might have happened and ending up with plans that are “If X, then what should happen next is…. But if Y, then what should happen next is”
  3. If the Court finds that one parent injured the child and the other didn’t, then the parents have an opportunity to think about whether they want to stay together or split up
  4. If the Court finds that the parent injured the child, there can then be an assessment of whether that is likely to happen in the future – maybe there would be treatment, maybe having had the Court make those findings frees people up to talk about how the injury happened and those discussions can potentially identify the stress points and triggers and avoid it happening in the future.

 

Well, over the last year, it seems that the Courts have been getting cold-feet about split-hearings with hints being dropped that they were being used in too many cases and that Courts must be carefully to ensure that they are only used in cases where it really helps.

 

And of course, nobody has a real clue how a “split-hearing” works in the rigid 26 week timetable – the PLO guidance is clear that the fact that a split hearing is needed or the case involves physical injury isn’t itself a reason to go beyond 26 week. At the moment, it is a struggle to get ONE hearing done within 26 weeks, never mind two.

The Court of Appeal looked at this in Re S, and go the farthest that they have done since the concept of “split-hearings” was introduced to suggest that they have had their day.

 

To give the background, the care proceedings were issued because of an injury to the head of a one year old child, resulting in two skull fractures. The Local Authority considered that the parents had caused/contributed to the injury (more of this later), the parents saying that this was an accident or some other medical explanation.

 

In the case, there was an account of the evening leading up to the injury which was demonstrated to be false  (as the Judge and the Court of Appeal remind us, just because a person is caught out in a lie on one thing does not mean that they are lying about everything else)

 

This was an appeal by the Local Authority, because the Judge concluded this

 

The judge concluded that S suffered significant harm while in the care of her parents and that the harm was caused by an injury. He was not satisfied that either of the parents had deliberately inflicted the injury

 

They lost the appeal, the Court of Appeal found that it was misconcieved and there was no reason to interfere with the findings. [In essence, the LA had put all of their eggs in the "deliberate harm" basket and didn't satisfy the Judge of that, and hadn't sufficiently explored the possibility that there could have been some form of negligence or carelessness without a deliberate element] 

 

Guidance on split-hearings

 

 

  1. It is by no means clear why it was thought appropriate to have a ‘split hearing’ where discrete facts are severed off from their welfare context. Unless the basis for such a decision is reasoned so that the inevitable delay is justified it will be wrong in principle in public law children proceedings. Even where it is asserted that delay will not be occasioned, the use of split hearings must be confined to those cases where there is a stark or discrete issue to be determined and an early conclusion on that issue will enable the substantive determination (i.e. whether a statutory order is necessary) to be made more expeditiously. The reasons for this are obvious: to remove consideration by the court of the background and contextual circumstances including factors that are relevant to the credibility of witnesses, the reliability of evidence and the section 1(3) CA 1989 welfare factors such as capability and risk, deprives the court of the very material (i.e. secondary facts) upon which findings as to primary fact and social welfare context are often based and tends to undermine the safety of the findings thereby made. It may also adversely impinge on the subsequent welfare and proportionality evaluations by the court as circumstances change and memories fade of the detail and nuances of the evidence that was given weeks or months before.
  1. I ought to emphasise for the avoidance of doubt that although parallels can be drawn between the use of fact finding hearings in public and private law children proceedings, the appropriate and measured use of fact finding hearings in private law proceedings which are often safety cases, for example involving recent domestic abuse between parents, are not the subject of this court’s consideration in this judgment. An example of this court’s guidance in relation to those proceedings can be found in In the matter of C (Children) [2009] EWCA Civ 994. In private law proceedings it is the court that is defining an aspect of parental responsibility in its determination of the arrangements that are put in place for the child and findings of fact are appropriate, where necessary, to inform that process by reference to the factors in section 1(3) of the 1989 Act and in particular where safety issues have arisen which justify the court’s interference with the article 8 ECHR rights of the family members. In public law children cases where a care order is in issue, the court is being asked to sanction an agency of the state, namely the local authority, being permitted to exercise parental responsibility for a child. The jurisdiction in the court to undertake that task has to be based upon the existence of facts (primary and / or secondary) that satisfy the threshold in section 31 CA 1989. Accordingly, concessions or findings of fact relevant to the threshold question will always be necessary in public law cases alongside such further findings of fact as are necessary to inform the welfare evaluation.
  1. It ought to be recollected that split hearings became fashionable as a means of expediting the most simple cases where there was only one factual issue to be decided and where the threshold for jurisdiction in section 31 CA 1989 would not be satisfied if a finding could not be made thereby concluding the proceedings (see Re S (A Child) [1996] 2 FLR 773 at 775B per Bracewell J). Over time, they also came to be used for the most complex medical causation cases where death or very serious medical issues had arisen and where an accurate medical diagnosis was integral to the future care of the child concerned. For almost all other cases, the procedure is inappropriate. The oft repeated but erroneous justification for them that a split hearing enables a social care assessment to be undertaken is simply poor social work and forensic practice. The justification comes from an era before the present Rules and Practice Directions came into force and can safely be discounted in public law children proceedings save in the most exceptional case.
  1. Social work assessments are not contingent on facts being identified and found to the civil standard (see, for example Oldham MBC v GW & PW [2007] EWHC 136 (Fam), [2007] 2 FLR 597 and Re S (Sexual Abuse Allegations: Local Authority Response) [2001] EWHC Admin 334, [2001] 2 FLR 776 per Scott-Baker J at [34] and [35]). That is the function of the court not a social worker (Dingley v Chief Constable of Strathclyde Police [2000] UKHC 14 per Lord Hope of Craighead at [120] and [122]). Social work assessments are based upon their own professional methodology like any other form of professional risk assessment. In care cases, an appropriate social work assessment and a Cafcass analysis should be undertaken at the earliest possible opportunity to identify relevant background circumstances and context. In so far as it is necessary to express a risk formulation as a precursor to an analysis or a recommendation to the court, that can be done by basing the same on each of the alternative factual scenarios that the court is being asked to consider (see, for example, In the matter of W (Children) [2009] EWCA Civ 644 at [33]).
  1. It may be helpful to highlight the fact that a decision to undertake a split hearing is a case management decision to which Part 1 of the Family Procedure Rules 2010 [FPR 2010] and Pilot Practice Direction 12A ‘Care, Supervision and Other Part 4 Proceedings: Guide to Case Management (the PLO)’ apply. A split hearing is only justifiable where the delay occasioned is in furtherance of the overriding objective in rule 1 FPR 2010, that is:

i) as a consequence of active case management by the court which includes in accordance with rule 1.4:

“(a) setting timetables […],

(b) identifying at an early stage […] the issues,

(c) deciding promptly (i) which issues need full investigation and hearing and which do not; and (ii) the procedure to be followed in the case;

(d) deciding the order in which issues are to be resolved;

[…]

(i) considering the likely benefits of taking a particular step justify the cost of taking it;

(j) dealing with as many aspects of the case as it can on the same occasion;

[…]; and

(m) giving directions to ensure that the case proceeds quickly and efficiently.”

ii) in accordance with the child’s welfare having regard to the timetable for the child within the meaning of that concept in para [5] of pilot PD12A; and

iii) in accordance with the timetable for proceedings within the meaning of that concept in para [5] pilot PD12A.

  1. On the alleged facts of this case, there was no discrete issue which was appropriate for trial without its social or welfare context and delay was the inevitable consequence of the decision to have a split hearing. Given that by rule 1.3 FPR 2010 the parties have a duty to help the court to further the overriding objective, it is all the more surprising that one of the submissions made to this court was that a split hearing was inappropriate. That professional analysis should have been offered to the court below. The benefits and detriments of such a course, if proposed, should be analysed by the children’s guardian. In future, a decision to undertake a split hearing should be reasoned in court at the case management hearing and the reasons should be recorded on the face of the Case Management Order alongside what has always been the good practice of the court which is to settle the issue to be tried on the face of the order

 

 

Of course it must be right that the Court ought to have clear thinking and rigour before listing a split hearing and deciding what the benefits are, that’s hard to argue against. But this seems to be a heavy hint that split hearings will rarely be effective.

 

I have to say that I struggle with this – there clearly was a discrete issue here. If the parents had done nothing wrong, there was clear advantage for everyone in deciding that as soon as possible. If there had been some wrong-doing, then it was important to determine what that was and allow the parents to make decisions about what they put forward as the best future care of the child at the earliest opportunity. 

 

This is exactly the sort of case that split-hearings were meant for, and one has to ask – if the Court of Appeal think a case like this isn’t right for a split hearing, is one left with any split-hearings in public law cases?

 

Probably not.

 

So, at a final hearing on week 26, when the Court decide that a child suffered a skull fracture and that this was caused by dad but mum didn’t know about it and did nothing wrong, what exactly is supposed to happen?

 

Are the Courts going to say that mum ought to have separated from dad and gone it alone months before the Court made its decision? Or is mum to be given half an hour with her lawyers to make a decision whether to leave dad or not?

 

 

 

Non-accidental injury

 

Another interesting and potentially important development in the case is the discussion about “non-accidental injury”.

 

What the Court was interested in was whether this term was being used in a sloppy, “catch-all” fashion, and indeed being used differently by the medical professionals and the social work professionals.

 

When the phrase “non-accidental” is being used, is what is meant simply that the injury is not a result of an action, or does it mean that the parent is culpable, or that the injury was caused deliberately? 

 

It seems that the Local Authority in the case were putting the case on the basis that if the medical evidence was that this was a “non-accidental injury” that the parents had thus inflicted the injury.

 

Going back to the judicial finding, it is obvious that the Judge at first instance (and the Court of Appeal did not interfere with his discretion) did not make THAT finding

 

The judge concluded that S suffered significant harm while in the care of her parents and that the harm was caused by an injury. He was not satisfied that either of the parents had deliberately inflicted the injury

 

 

On the face of it, that seems unsatisfactory to both sides. If there was an accidental or “innocent” explanation for the injury, then the threshold criteria ought not to have been made out –  whilst the skull fractures were significant harm, the harm is not attributable to the care given or not given by the parents not being what it would be reasonable to expect a parent to give. So  from the parents viewpoint, why did the Judge find that threshold was met? And from the LA viewpoint, if the Judge did not consider that there was an accidental explanation and found threshold met,  how had the injuries occurred? How can anyone plan for the future on that basis?

 

 

 

Is there anything else that the Judge found that helps in understanding what happened to this child, and from there to see whether there is any future risk?

 

  1. It was a conceded fact before the judge that a false history of how the harm occurred had been given at the hospital. The false history was subsequently repeated in various degrees of detail to suggest that the child had been in a bouncer suspended from a door in the flat at a height of about half a metre from the ground when a strap broke, the bouncer fell and the child hit her head. That false history was discarded by the family when the child’s father voluntarily went to the police and said that the history previously given was not true. It was also discovered that the strap had been cut (it is said by grandmother) to make it look like it had snapped. A new history was then proffered by the family which was given to the judge in evidence. The evidence was that father was standing holding S in the kitchen behind mother and grandmother when S wriggled and in some way fell to the floor.
  1. With the possible exception of grandmother’s partner, who was not said to have witnessed anything of relevance, the judge found the family’s account of what happened on the night in question including the timings to be wholly unconvincing. He regarded the grandmother as a particularly unconvincing witness and was satisfied that father, mother and grandmother had conspired to attempt to exculpate father from what had occurred.
  1. The judge’s ultimate finding was that the grandmother and the parents had lied to the hospital and again to the police and the court i.e. both histories were untrue. He found as a fact that the court had not been told the truth about what had occurred. He found as a fact that something happened to S in the care of her parents (i.e. that the harm was not a true accident) but did not find that either of the parents deliberately injured their child. Having read and heard the evidence he was not satisfied on the balance of probabilities that either parent had deliberately inflicted the injury. That was not a positive finding that exculpated the parents or indeed any other adult. The case management order which purported to record the findings is erroneous if it was intended to suggest otherwise.
  1. The judge’s conclusion left open the question of how the injury occurred. The judge put down a marker to himself for the future welfare hearing that what had happened “may well involve negligence”. It is clear from the terms of the judgment that he did not find that the parents or any of the adults had been negligent but he opened up that possibility no doubt for future examination in the light of any other evidence that the court may consider at a subsequent hearing.

 

 

This is what the Court of Appeal had to say  [underlining mine for emphasis]

 

  1. It may be obvious to the interested bystander that there was a theoretical range of possibilities relating to what had happened to S: from accidental harm through to deliberate infliction of injury, but that was not the way the case developed in evidence. The neuroradiologist who gave evidence to the court gave his opinion about the range of possibilities in the following terms:

“The skull fracture can occur as a result of accidental injury. In this context fracture most commonly arises from a fall from a carer’s arms and results in an un-displaced unilateral fracture most often of parietal or occipital bone. Skull fractures may also occur as a result of impact in the context of non-accidental head trauma. If the injury is non-accidental, a fracture may also be displaced, comminuted, involves (sic) more than one bone or if there are multiple fractures in the same bone, it is more likely that the injury is non-accidental in origin”

  1. The local authority chose to pursue deliberate infliction of injury with the witnesses at the hearing and both at that hearing and before this court equated the term non-accidental injury with infliction. The local authority submitted that infliction was not necessarily deliberate infliction, but it is by no means clear that anyone else defined the terminology in that way and that characterisation of the evidence ignored the statutory formulation that the local authority needed to prove. This court was helpfully taken by counsel to the questions put to the witnesses which appear to demonstrate that the local authority assumed that ‘non-accidental injury’ if proved would be deliberate. They did not adequately explore the circumstances of the adults’ care other than to cast doubt on both of the histories that had been given nor did they explore what has come to be known as the attributability element of section 31(2) of the Act. Whether there had been reckless or negligent acts and omissions or what the neuroradiologist meant by the terminology that he had used or the causative mechanisms he had described remain in doubt.
  1. This court has sympathy both with the judge and the advocates in a situation where the direct evidence from those who were present is false and the local authority rightly assumed the burden of demonstrating that. In doing so, however, they appear to have lost sight of the rest of the case and of the statutory formulation in section 31(2) of the Act.
  1. The term ‘non-accidental injury’ may be a term of art used by clinicians as a shorthand and I make no criticism of its use but it is a ‘catch-all’ for everything that is not an accident. It is also a tautology: the true distinction is between an accident which is unexpected and unintentional and an injury which involves an element of wrong. That element of wrong may involve a lack of care and / or an intent of a greater or lesser degree that may amount to negligence, recklessness or deliberate infliction. While an analysis of that kind may be helpful to distinguish deliberate infliction from, say, negligence, it is unnecessary in any consideration of whether the threshold criteria are satisfied because what the statute requires is something different namely, findings of fact that at least satisfy the significant harm, attributability and objective standard of care elements of section 31(2).
  1. The court’s function is to make the findings of fact that it is able on the evidence and then analyse those findings against the statutory formulation. The gloss imported by the use of unexplained legal, clinical or colloquial terms is not helpful to that exercise nor is it necessary for the purposes of section 31(2) to characterise the fact of what happened as negligence, recklessness or in any other way. Just as non-accidental injury is a tautology, ‘accidental injury’ is an oxymoron that is unhelpful as a description. If the term was used during the discussion after the judgment had been given as a description of one of the possibilities of how the harm had been caused, then it should not have been; it being a contradiction in terms. If, as is often the case when a clinical expert describes harm as being a ‘non-accidental injury’, there is a range of factual possibilities, those possibilities should be explored with the expert and the witnesses so that the court can understand which, if any, described mechanism is compatible with the presentation of harm.
  1. The threshold is not concerned with intent or blame; it is concerned with whether the objective standard of care which it would be reasonable to expect for the child in question has not been provided so that the harm suffered is attributable to the care actually provided. The judge is not limited to the way the case is put by the local authority but if options are not adequately explored a judge may find a vital piece of the jigsaw missing when s/he comes to look at all the evidence in the round.
  1. This court has not been addressed about the volume of guidance in materials issued by professional bodies (including the medical Royal Colleges) and Government which makes reference to ‘non-accidental injury’. Indeed, counsel for the local authority went so far as to submit that none of that material provided a generally accepted medical or legal definition of the term. Whether that is right or not, it is not necessary for this court to analyse that material because all that is required in a case of this kind is for the court, legal practitioners and experts to have regard to the statutory formulation with which the court is concerned. If other terminology is used in evidence its meaning should be precisely ascertained so that the court knows what is being alleged and advised.
  1. In this case, the judge was careful to sever the question of whether the harm was an example of a true accident i.e. a chance happening that is by definition unexpected and unintentional, from the question of attributability which in the circumstances of this case was said to include perpetration of harm and lack of protection from harm. The local authority’s case was of (deliberate) infliction by one or the other parent and that was the case they put. They did not succeed in establishing that case. No other possibilities were sufficiently examined to enable the judge to make conclusions upon them. The medical expert had left open the possibility of an accidental cause, albeit that it was unlikely and in that circumstance anything between accident and deliberate infliction must also have been possible. Accordingly, there was no inconsistency between the findings and the evidence and the local authority’s description of the findings in the grounds of appeal are misconceived.
  1. The judge examined what were conceded before him to be the false explanations for the injury given by those who took S to the hospital which were subsequently repeated by other members of the family and also what was said to be the true history of the events of the night in question which he decided was also false. He directed himself to consider that there may be innocent explanations or explanations that do not attract responsibility for telling an untruth about a fact in issue: the so called Lucas direction (R v Lucas [1981] 1 QB 720). Far from failing to consider drawing an inference of attributability from the repeated lies that were told, the judge overtly considered the options and having given himself a Lucas direction concluded that the lies were more likely to be related to their inexperience as parents. Having heard the parents in evidence the judge declined to draw the inference that they had deliberately inflicted injury but did draw the inference that they had failed to protect S by delaying the obtaining of medical treatment.

 

 

There is a big hint here for advocates, particularly Local Authority advocates that in any case where harm is disputed, one has to avoid tunnel vision and just exploring the binary possibilities  (the parents deliberately injured the child v this child had an accident which simply could not have been helped) and to explore all of the middle ground, and focus particularly on not just the harm but how that harm might, or might not, have been attributable to the parents care.

Guidance to Local Authorities where one parent murders the other

Thankfully such cases are relatively rare – not perhaps as rare as one would hope – a third of female homicide victims are killed by their current or former partner (the figures for male homicide victims are 6% – males can of course be the victims of abuse, not just the perpetrators).

Dreadfully, the Home Office crime statistics reflected in 2001 and 2005 that this represented two women per week.   (And even worse, if that is possible, the statistic that treating the physical injuries from domestic violence accounts for 3% of the annual NHS budget – Wellby 2004)

In such a case, what ought the Local Authority to do about it?

The High Court addressed the issue in Re N v B and Others 2013

http://www.familylawweek.co.uk/site.aspx?i=ed115442

The children’s father had killed the mother and was imprisoned as a result. The children went to stay with their maternal grandmother, who in due course applied for an adoption order in relation to them. There was considerable debate before the Court as to whether adoption or Special Guardianship was the right order to make – there being no dispute whatsoever that the placement with grandmother was the right one.

The Court analysed the issues to be taken into account when making such a decision very carefully

22. The paramount consideration of the court when considering this issue is the welfare of the child throughout his life, in accordance with section 1 Adoption and Children Act 2002 (‘ACA 2002′). The court must consider which order will better serve the welfare of the particular child (per Wall LJ Re S (Adoption Order or Special Guardianship) [2007] EWCA Civ 54 at para 47 (iii)). There is no presumption in favour of one order or the other, each case turns on its own facts. In accordance with ss 47 and 52 ACA 2002 in considering an adoption order the court needs to consider whether the welfare of the child requires the consent of the father to be dispensed with.

23. One of the relevant considerations in this case is whether an adoption order would skew the family relationships in the grandmother’s home. The grandmother’s brother is the father’s father; the children’s parents were first cousins. The children live with the grandmother and maternal aunts and uncles. They have contact with another maternal aunt who lives nearby with her husband and son, and their great maternal aunts who also live nearby. In the event of an adoption order their maternal grandmother would become their adoptive mother. Their aunts and uncles would become their legal half siblings. The paternal grandfather would become their paternal uncle and the father their first cousin. Following the death of the mother the grandmother has severed all contact with her brother and his family.

24. This shift in family relationships, in the event of an adoption order being made, was explained in some detail to the grandmother by a Senior Practitioner in the Local Authority Adoption Team, as described in the special guardianship report. She notes the grandmother had an understanding of the consequent shift in legal relationships throughout the family in the event of an adoption order being made.

25. InS v B and Newport City Council: Re K [2007] 1 FLR 1116 the impact of an adoption order in family placements was considered important by Mr Justice Hedley, when refusing to make an adoption order in favour of a special guardianship order. At paragraph 22, following a review of the underlying policy for adoption, he stated

One purpose of adoption is of course to give lifelong status to carers where otherwise it would not exist. In familial placement, that is not necessary because family status exists for life in any event. That is not to say that a familial placement may never be secured by adoption. One can imagine cases where the need for security against aggressive parents, including forensic aggression, may be overwhelming.’

26. The skewing of familial relationships is clearly an important factor to put in the balance.

27. Another important factor is the concern the grandmother has about the father seeking to exercise his parental responsibility.

The last point was a particularly significant one here, since under a Special Guardianship Order, the grandmother would have found herself in the position of having to regularly consult with the father (who was after all, the man who killed her daughter) about the children’s upbringing, whereas an adoption order would end his parental responsibility.  The counterpoint to that is that it alters legally the relationship between the children, such that their grandmother becomes in law, legally their mother, their aunt becomes their sister, any cousins would become their nieces and nephews (and oddly, that their birth mother, becomes legally their deceased sister)

The Court concluded that in the circumstances of this case, the advantages of adoption far outweighed those of Special Guardianship

31.  I have reached the clear conclusion, in the particular circumstances of this case the welfare of each of these children throughout their lives can only be met by an adoption order being made rather than a special guardianship order. I have reached that conclusion for the following reasons:

(1) What both children need now and for the rest of their minority and beyond is a secure home. That is what their grandmother can provide, supported by the maternal family who live there or nearby. They wish to remain in her care. As the Children’s Guardian submitted there is no birth parent that can care for them.

(2) Although it is right that an adoption order would skew family relationships I am confident that despite the shift in family relationships that would follow, the children will know the realities of the relationships within the family. That is clear from the grandmother’s recent statement and the observation in the special guardianship report that the grandmother and the family are ‘secure in their knowledge of the children’s identities and they know the children’s histories’.  This view is supported by the conclusions of the Children’s Guardian at paragraphs 24 – 26 of his report.

(3) In this particular case a powerful consideration is the need for the grandmother not to have to share parental responsibility with the father. Particularly in circumstances where I am satisfied, from what the father has said, that he is likely to try and exercise it, even with a restriction under s 91 (14) and other restrictions under s 8. As recently as December 2012 he was declaring that it was unfair for him not to have contact with the children; that he will keep trying and will not give up; he seeks to maintain parental responsibility and will be able to carry on seeking contact with the children. The spectre of such applications will undermine the security of the placement that is so essential to the children’s future stability.

(4) Bearing in mind the background to the criminal offences the maternal family fear manipulation by the father, directly or indirectly, so that he could control the children’s lives. In the circumstances of this case that fear is very real due to the background of the father’s behaviour, and is confirmed by the papers in the court bundle from the criminal proceedings. In particular the psychiatric report, the pre-sentence report and the sentencing remarks from the Crown Court. He was described in the pre sentence report as being extremely controlling and highly dangerous. From what I have read I wholly agree with that description. I am satisfied that a special guardianship order, even supported with orders made under s 8 and 91 (14) CA 1989 severely controlling the father’s ability to exercise his parental responsibility, will not, in the circumstances of this case, provide the lifelong security that these children need in being securely placed with their grandmother.

(5) The grandmother has carefully considered the consequences of adoption and the lifelong nature of adoption. They have been explained to her by the senior practitioner from the adoption team, as set out in detail in the special guardianship report. She understands the change to the children’s birth certificate would mean that the mother’s name and details would be removed. She does not plan to change the children’s names.

(6) In her most recent statement the grandmother deals with the religious objections raised by the father to an adoption order. She sets out very clearly how she sees the adoption of the children by her in the circumstances of this case (where she does not intend to change the names, and where any limited inheritance consequences can be covered by putting arrangements in place). She is satisfied, in the circumstances of this case, with the arrangements that would be put in place by her, that adoption is acceptable under Islamic law. I agree. This is endorsed by the Children’s Guardian, who says he is confident the family can manage this with sensitivity and support.

(7) I agree with the recommendation of the Children’s Guardian that permanence and long term safeguarding for the children can only be guaranteed through the making of an adoption order. For the reasons outlined above it is the order that best meets their long term welfare needs.
In those circumstances, I will dispense with the father’s consent as the welfare needs of each of the children, in my judgment, demand I do so.

The Court was very critical of the Local Authority, who had been directed to file a section 37 report and did so very very late  – 3 ½ months late (despite the circumstances of the case being one that an outsider might imagine that the LA would take seriously)

I imagine that this sentence may crop up in submissions in family law cases (in combination with the recent decision of Mr Justice Cobb that a Local Authority can be hit for costs when failing to undertake a proper s37 report)

I am quite satisfied the obligation is on the party seeking an extension of time to apply for one (in the absence of any other direction being given by the court). The court had made an order and the expectation is that it will be complied with.

(i.e, don’t just submit the report late, seek permission of the Court to do so in advance of the report being late. )

But then this bit is particularly important for Local Authorities

35.  I wholly endorse the guidance given by Mrs Justice Hogg in Re A and B [2010] EWHC 3824 (Fam) in particular paragraph 2 which provides

The local authority should give immediate consideration to the issue of proceedings and, whether it considers it appropriate or inappropriate to issue proceedings immediately, it should appoint a social worker specifically for the affected sibling group who should offer immediate practical help and keep the decision under constant review in conjunction with the local authority’s legal department.”

And this bit from the same case is important too

 In the majority of cases the surviving parent with parental responsibility will be in custody or otherwise unable to exercise parental responsibility. In the aftermath of the killing there will be strong emotions on both sides of the extended family. It is critical therefore that the local authority is able to undertake that function.  Any dispute regarding the responsible designated authority should be resolved at an early stage and should not cause initial assessments to be delayed. It is not appropriate to leave the extended family to attempt to resolve matters through private law proceedings. In the event that the case comes before the court as private law proceedings in the first instance then the court should direct that a Section 37 report is prepared by the relevant local authority

My initial thought was that it might not be utterly straightforward to establish that the threshold criteria was made out, and I had quite a long rambling discussion about that, which I can spare you all from.

The other reported case of Re A and B 2010  http://www.familylawweek.co.uk/site.aspx?i=ed82613  initially did not seem to help, as the threshold was dealt with by this single line

All parties agreed that the threshold criteria set out in Section 31 had been crossed in that the children had suffered significant harm by reason of their mother’s death at the hands of their father.

But the High Court later go on to say :-

Threshold
1. In all cases where one parent has been killed by the other the threshold criteria will be met.

And thus, no further enquiry into the nature of the harm is needed. One does not need to explore how that harm is said to have manifested or would need to be evidenced. I can’t actually think of any other situation where threshold is so black and white – there’s no mitigation, no case specific issues, threshold is simply met in those circumstances.

(That of course, inadvertently means that a parent who kills the other in self-defence, perhaps during a violent assault by the other, has crossed the threshold and has significantly harmed the child; but crossing the threshold does not of course mean that the children would be removed. What about where one parent is driving, perhaps drunk and the passenger is killed? The surviving parent might well be charged with Causing Death by Dangerous Driving – it seems that the threshold would be crossed there as well)

Whilst one immediately thinks that it is one of the gravest offences that a human can commit and thus of course threshold is met, we know from many authorities, most recently Re J that being responsible or jointly responsible for the death of a child does not mean that the threshold is met in relation to other children in the future.

Local Authorities would need to be alert to cases where a parent murders the other, to ensure that they seize themselves of the matter and provide services and support to help meet the children’s needs at this dreadful time.

Supreme Court and emotional harm

The Supreme Court judgment in Re B is out, and can be read in full here:-

 

http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2013_0022_Judgment.pdf

For the too-long didn’t read version, the parents lost. The case was hoped to clarify emotional harm, and whether it justifies State intervention, and whether the risk of future emotional harm (when it becomes somewhat tenuous and predictive) justifies the most draconian of orders, a plan for adoption.

There was an excellent preview of the case by Celtic Knot over on Pink Tape, here

http://pinktape.co.uk/cases/rescuing-children-from-significant-harm-looking-forward-with-trepidation-and-hope/

and it sets out the backdrop to this case very clearly and why it was that he and I were both hoping that the parents would succeed. In all of this debate, I am mindful that  (a) I haven’t had the chance to read or hear all of the evidence and (b) that the case sadly involves real people and a real child.  Sadly, as it has important principles, it is something that needs to be discussed in broader terms than just the tragedy for the immediate family.

Frankly, my reading of the Re B Court of Appeal decision was that there was a lot that professionals were worried about or anxious about, but none of it actually amounted to proof that the child was at risk of significant harm. [I stress, this may very well be a fault of the Court of Appeal judgment in not properly framing how they found threshold to be crossed, rather than on professionals involved in the case]

 

I think the closest it came to threshold was in this passage here

It was the diagnosis of Dr Bass, which Judge Cryan accepted, that, beyond  abnormal personality traits and in additi on to, and more significantly than, her  somatisation disorder, M suffers a factitious  disorder of mild to moderate intensity.

This is a related psychiatric disorder in  which the sufferer is driven repeatedly to exaggerate symptoms or altogether to fabricate them and to offer false histories.

There is therefore a deceptive dimension to  the disorder which was replicated in a  mass of other evidence before the judg e, unrelated to M’s medical condition,  which raised questions about  her ability, and for that matter  also the ability of F, to behave honestly with professionals. Dr Bass  stressed that M’s psychiatric disorders required psychotherapy which might last for a year and which could be undertaken  only if she were to acknowledge the problems and to engage honestly with the therapist.

 

 

Undoubtedly within the case, and the Supreme Court gave multiple examples, there had been incidents where claims had been made by M which the Court found to be untrue, and they were florid claims. That much, I don’t disagree with.  The decision of the Court of Appeal that this crossed the threshold seemed, to me, to fall short on the critical area of actual evidence that it HAD harmed the child or was a risk of harming the child, and not merely in nebulous “Jedi-hand-wave” terms – what was it that was said the parents might do that would harm this child, and how likely was it that they would do it?

 

The original trial judge said this:-

The judge concluded: “Ultimately, I find that I am persuaded… that what the evidence  clearly demonstrates is that these parents do not have the capacity to  engage with professionals in such  a way that their behaviour will be  either controlled or amended to  bring about an environment where  [Amelia] would be safe… In short I cannot see that there is any  sufficiently reliable way that I can fulfil my duty  to [Amelia] to  protect her from harm and still place her with her parents. I  appreciate that in so saying I am depriving her of a relationship  which, young though she  is, is important to  her and depriving her  and her parents of that family life which this court strives to promote.”

 

Again, that seems to me to be a legitimate decision for the Judge who heard the evidence to take ONCE it was established that the threshold was crossed. If there WAS a risk of harm, then whether the parents could manage that harm, take advice, work with professionals and change their behaviour is massively relevant.

But did we ever cross the threshold on the facts as reported?

My fundamental issue is this – if one cannot put into a paragraph, or a page, what harm it was that the State was protecting this child from, I am not sure that the harm is actually properly made out. [Not a criticism of the LA involved – I  haven’t read the papers, I don’t know the whole case, but from the twin judgments I have seen, I don’t see anything that comes close to telling the parents, or the public, what it was that this child was being protected FROM – other than very peculiar behaviour short of abuse]

 

One focus of the appeal was the wording of the threshold criteria (the test that the State has to cross before a Care Order can be made) which is “significant harm”  and whether the law has wrongly developed to an extent where it is now hard to see the distinction, in law, between harm and significant harm.

 

If one were to get a family lawyer to draw up two columns, one headed Harm, and one headed Significant Harm, and then gave them a series of allegations, would all of the family lawyers put each allegation in the same column ? would there be broad consistency about which is which, perhaps with a few grey areas? Or in fact, would nearly everything go into the “significant harm” column.

 

Here is what the Supreme Court have to say

26.  In my view this court should avoid attempting to explain the word “significant”. It would be a gloss; attention might then turn to the meaning of the  gloss and, albeit with the best of intentions, the courts might find in due course that they had travelled far from  the word itself. Nevertheless it might be worthwhile to  note that in the White Paper which preceded the 1989 Act, namely The Law on  Child Care and Family Services, Cm 62, January 1987, the government stated, at para 60:

“It is intended that “likely ha rm” should cover all cases of unacceptable risk in which it may be necessary to balance the chance of the harm occurring against the magnitude of that harm if it does”

The Supreme Court also rejected the applicant’s submission that when a Court determines whether or not the threshold is crossed, article 8 is engaged, and determined that article 8 only arises when the Court are deciding whether or not to make an order.   [I can’t say that i am happy about THAT either]

 

The second matter relates to Mr Feehan’s submission that the threshold set  by section 31(2) is not crossed if the deficits relate only to the character of the parents rather than to the quality of their parenting. His alternative submission is  that harm suffered or likely to be suffered by a child as a result of parental action or inaction may cross the threshold only if,  in so acting or failing to act, the parent or parents were deliberately or intentionally to have caused or to be likely to cause such harm. M is, of course, not responsible for her personality traits nor for her psychiatric disorders; and in effect the submission is that the dishonesty,animosities and obstructionism of the parents represent deficits only of character

and that, if and insofar as they might cause harm to Amelia,whom they love, the harm is neither deliberate nor intentional

 

This is an interesting one, taking us into issues of free will and determinism. I would agree partly with Mr Feehan QC  - I think that the threshold ought to get into quality of parenting or how the parenting impacts on the child, but I don’t go as far as saying that a parent is not responsible for elements of their personality which are beyond their control. (The latter, seems to me, to invite later ligitation on the basis of paedophilia being intrinsic to a person, rather than a conscious or deliberate choice on their part)

The Supreme Court rejected this anyway.  

 

One interesting addition from the Supreme Court was their debate about whether, when deciding whether a lower Court had mistakenly found threshold to be crossed (or vice versa) the test for the appellant Court should be the usual one (derived from Piglowska) that the Court had been “plainly wrong”  or whether in the context of the threshold, which is a binary value judgment – the evidence is there to satisfy it, or it is not, the test should simply be whether they were “wrong”

it is generally better to allow adjectives to speak for themselves without adverbial  support. What does “plainly” add to “wrong”? Either the word adds nothing or it serves to treat the determination under challenge with some slight extra level of generosity apt to one which is discretionary but not to one which is evaluative.

Like all other members of the court, I  consider that appellate review of a  determination whether the threshold is crossed should be conducted by reference  simply to whether it was wrong.

 

 

I think they may come to regret that formulation.

 

Going to the issue of threshold this passage in the judgment outlines why the majority of the Judges found that it was met and the decision was not wrong

The nature of the harm which concerned Judge Cryan was (i) “the emotional harm to [Amelia] likely to be caused by” (a) “the Mother’s somatisation disorder and factitious illness disorder”,

(b) “concerns … about the parents’ personality traits”,

(c) “her mother’s lying”,

(d) her father’s “active, but less chronic, tendency to dishonest

y and vulnerability to the misuse of drugs”, and

(ii) “physical harm to [Amelia]” which “can not be discounted, for example, by over treatment or inappropriate treatment by doctors”.

As to the possibility of such harm being prevented or acceptably mitigated, the Judge concluded that Amelia’s parents did not have “the capacity to engage with professionals in such a way that their behaviour will either be controlled or amended to bring about an environment where [Amelia] would be safe”. He explained that the result of this was that he could think of no “sufficiently reliable way” in which he could “fulfil [his] duty”

to Amelia “to protect her from harm and still place her with her parents”.

 

66. Those conclusions are concerned with what may be characterised as risks, prospects or possible outcomes, and they

are not, therefore, findings of primary fact, let alone conclusions of law. As explained above, they are evaluations based

on the findings of primary fact, and on assessments of character and likely behaviour and attitudes, made by the Judge

as a result of many days of considering oral and written evidence and also as a result of hearing argument. They are

evaluations which are also plainly dependant on the Judge’s overall assessment of  the witnesses, and in particular on his opinion as to the character and dependability of Amelia’s mother and father, and as tothe reliability of the assessments of the expert witnesses. His conclusions appear to me to be ones to which, to put it at its lowest, he was fully entitled to come on the evidence he had heard and assessed. In other words, they were justified in terms of logic and common sense in the light of his findings of primary fact and his assessment of the witnesses, and they were coherently formulated. There is no basis in my view, for saying that they were wrong.

 

Sadly, to me, it seems that the Supreme Court have tackled this case in that very narrow way, rather than comparing the threshold said to be met in this case with the doctrines of Lord Templeman and Justice Hedley, about the difference between abusive parenting which harms a child or is likely to harm a child, and eccentric odd or even poor parenting which falls short of that mark.  I slightly have to wonder why they agreed to hear the appeal at all if they were not going to roll up their sleeves and tackle the issue of emotional harm. They just really said that it was a matter for the trial judge which side of the line the case fell on, unless it was apparent that he had got that wrong.

 

Lady Hale in her judgment, which in my mind actually tackled the issues and concluded in the dissenting judgment that the original judge was wrong to have made a Care Order,  sets out what practitioners felt was the key issue in the case in her opening paragraphs

 

143. This case raises some profound questions about the scope of courts’ powers to take away children from their birth families when what is feared is, not physical abuse or neglect, but emotional or psychological harm. We are all frail human beings, with our fair share of unattractive character traits, which sometimes manifest themselves in bad behaviours which may be copied by our children. But the State does not and cannot take away the children of all the people who commit crimes, who abuse alcohol or drugs, who suffer from physical or mental illnesses or disabilities, or who espouse anti-social political or religious beliefs. Indeed, in Dickson v United Kingdom (2007) 46 EHRR 937, the Strasbourg court held that the refusal of artificial insemination facilities to a convicted murderer and the wife whom he had met while they were both in prison was a breach of their rights under article 8 of the European Convention.

 

How is the law to distinguish between emotional or psychological harm, which warrants the compulsory intervention of the State, and the normal and natural tendency of children to grow up to be and behave like their parents?

 

144.Added to this is the problem that the harm which is feared may take many years to materialise, if indeed it ever does. Every child is an individual, with her own character and personality. Many children are remarkably resilient. They do not all inherit their parents’ less attractive characters or copy their less attractive behaviours. Indeed some will consciously reject them. They have many other positive influences in their lives which can help them to resist the negative, whether it is their schools, their friends, or other people around them. How confident do we have to be that a child will indeed suffer harm because of her parents’ character and behaviour before we separate them for good?

 

Hear hear

 

 

Sadly all of this next bit is by the by, since it is from the dissenting judgment, but I think it is all correct, and I wish it were an accurate reflection of what the law was, post Re B

The reason for adopting a comparatively low threshold of likelihood is clear: some harm is so catastrophic that even a relatively small degree of likelihood should be sufficient to justify the state in intervening to protect the child before it happens, for example from death or serious injury or sexual abuse. But it is clear that Lord Nichollsdid not contemplate that a relatively small degree of likelihood would be sufficient in all cases.

 

The corollary of “the more serious the harm, the less likely it has to be” is that “the less serious the harm, the more likely it has to be”.

 

 

Of course, another reason for adopting a test of “real possibility”, rather than “more likely than not”, is that it is extremely difficult to predict the future and to do so with the sort of accuracy which would enable a court to say that it was more likely than not that a parent would harm a child in the future. Once again, this is a particular problem with emotional or psychological harm, which may take many years to manifest itself. The Act does not set limits upon when the harm may be likely to occur and clearly the court is entitled to look to the medium and longer term as well as to the child’s immediate future.

 

190 However, the longer term the prospect of harm, the greater the degree of uncertainty about whether it will actually happen. The child’s resilience or resistance, and the many protective influences at work in the community, whether from the wider family, their friends, their neighbourhoods, the health and social services and, perhaps above all, their schools, mean that it may never happen. The degree of likelihood must be such as justify compulsory intervention now, for there is always the possibility of compulsory intervention later, should the “real possibility” solidify

191. The second element in the threshold sheds some light upon these questions. The harm, or the likelihood of harm, must be “attributable to the care given to the child, or likely to be given to him if an order were not made, not being what it would be reasonable to expect a parent to give to him”(s 31(2)(b)). This reinforces the view that it is a deficiency in parental care, rather than in parental character, which must cause the harm. It also means that the court should be able to identify what that deficiency in care might be and how likely it is to happen.

 

For my part, I am unsure why the other Judges did not share those views, they seem to me eminently sensible and fair. In reality, it is merely a sieve to remove the sort of cases that Lord Templeman and Hedley LJ were referring to as being short of the level of parenting that requires State intervention.

I also feel somewhat for Lady Hale, who has given excellent judgments in many of the Supreme Court cases but seems to be being characterised as the dissenter who does not sway the majority.

Supreme Court to give judgment on emotional harm case on 12th June

An interesting report from Family Law Week, confirming that the Re B case will be determined by the Supreme Court on 12th June, and I will write about it as soon as I get the judgment

 http://www.familylawweek.co.uk/site.aspx?i=ed114264

 The Court of Appeal decision is one that I blogged about here :-

 http://suesspiciousminds.com/2012/11/16/lies-and-the-lying-liars-who-tell-them/

 The reason that the case is important is that the threshold in the case was based entirely on emotional harm. I disagree with some of my readers about how prevalent that is  (my own experience of many, many Local Authorities over many, many years is that whilst emotional harm is a facet of lots of cases, I have NEVER picked up a case where the threshold contained nothing other than emotional harm. Ian Josephs says fairly that the people who come to him are invariably emotional harm cases). 

At the very least, it is plain that emotional harm is a controversial basis for separation of families, and it is probably the greyest area that we currently have, so it is good to see it being tackled.

 On the facts reported in Re B, I thought that the Court of Appeal were wrong in finding that the threshold was made out, and wrong further in moving to the conclusion that this meant that permanent separation was justified.  My heart is with the parents on this one, I have to say.

 There were certainly issues with the parents and there was certainly a suggestion that there would have been unusual features of the way the child would be brought up, but I did not see in the judgment I read evidence that the child was being harmed or likely to be harmed by it.

 

A classic bit of Hedley J, as far as I was concerned

 

Re L (Care threshold criteria) 2006  ”Society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, whilst others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the State to spare children all the consequences of defective parenting. In any event, it simply could not be done. … It would be unwise to a degree to attempt an all embracing definition of significant harm. One never ceases to be surprised at the extent of complication and difficulty that human beings manage to introduce into family life.”

 

As some people remarked to me at the time, there must have been more to it than came out in the Court of Appeal judgment. That might be the case, but in which case, I consider there to be a fault in the judgment  – if a parent is to be separated from their child by the State, the least we can offer them is a fair judgment that sets out plainly why that has to be the case.

 I think it is important that if the State is removing children for emotional harm, which is such a slippery concept to pin down (as opposed to fractures, sexual abuse or even neglect), it is important to have some parameters as to what that might mean, and where the bright line is between unusual and eccentric parenting and harmful parenting.

I will be interested to see what the Supreme Court makes of this, and as an incidental, I think Lord Clarke of Stone-cum-Ebony has a great, great title.  I have vowed, and will hold to it, that in the vanishingly unlikely event that the Government go bananas and make me a peer of the realm, I shall go by the name of Lord Vader, but that title does tempt me. Perhaps I could be Lord Ebony-cum-Ivory…

 

 

 

“Lancashire Hot Pot(ato) “

The Supreme Court have given their decision in Re J, looking at whether a finding of fact that an injury was caused and neither parent can be excluded, forms a basis for finding that such a parent would be a risk to children in a new relationship.

They conclude, to skip to the chase, that it does not.  But before there are fireworks and street parties / wailing and gnashing of teeth, wait, it is a bit more nuanced than that.

http://www.bailii.org/uk/cases/UKSC/2013/9.html

To make it simpler,  Fred and Wilma find themselves in care proceedings, as a result of Pebbles suffering a skull fracture.  The Court finds that the skull fracture was caused non-accidentally, and that it must have been caused by either Fred, or Wilma, who were the only people caring for Pebbles at the relevant time.

The Court looks very carefully to see whether it is possible to say that it is more likely than not that Fred caused the injury, or Wilma, or whether one has to make a finding that neither of them can be excluded as a possible perpetrator.    (The last of these findings is usually called a “Lancashire” finding, named after the leading case that decided that this was an option open to the Court where the evidence was compelling that the injury must have been caused by Fred OR Wilma, but not sufficient to say it was Fred and not Wilma or vice versa)

 Now, the Court, as a result of a previous Supreme Court decision (Re S-B Children 2009)  http://www.bailii.org/uk/cases/UKSC/2009/17.html   have to be careful not to dance on the head of a pin and strive too hard to decide that it was Fred, if the evidence was not there. 

If the Court feel that it is not possible to say with confidence that it was Fred, they shouldn’t make the finding that Fred did it just because he seems more likely than Wilma.  Re S-B suggests that there’s real value, where the evidence is there to allow it, in making a positive finding about whether it was Fred or Wilma, but that Courts should not strive to force the issue if the evidence isn’t there.   (The Supreme Court put that in terms – the risk of doing that is the risk that the Judge gets it wrong, and someone is treated as a risk who is not, and more importantly that someone who IS a risk is treated as though they were not)

 When the Court considers, if they make a Lancashire finding, the risk to Pebbles, they are entitled to consider the risk from both parents, in the light of the finding that neither is excluded. That doesn’t mean that Pebbles can’t live with them, it will depend on a careful assessment of risk, and of how that risk can be managed in the future.

 So, if Fred and Wilma go on to have another child, the threshold criteria is capable of being made out on the basis of the findings about Pebbles.

One of them caused that injury to Pebbles, and if they are both in the same household caring for the new baby, that risk is a live one.   [It won’t mean that they are barred from caring for the new baby, the Judge will consider all of the factors – passage of time, work done, maturation, how they present now, but the Court is entitled to assess whether that risk is sufficiently addressed to make them safe carers for the new baby, or whether the risk is too high]

 But what has been more murky, is what happens if Fred and Wilma split up, and Fred gets together with Betty* and has a baby.

 [*Don’t pretend you’ve never wondered what Betty saw in poor dull Barney Rubble]

 There have been strong arguments that Fred poses a risk to the new baby, because of the findings that he couldn’t be excluded from being the person who hurt Pebbles. Equally, there have been strong arguments that Fred should not be treated as a risk to the new baby UNLESS the Court made a positive finding that he WAS the person who hurt Pebbles.  At some stage, the Supreme Court was going to have to step in and answer it once and for all, and they have finally done so.

 The law is clear that when assessing likelihood of future harm, it doesn’t have to be that the risk is more likely than not to happen, it is a “risk which cannot sensibly be ignored’  BUT that in deciding whether there is a risk at all, there has to be an established fact to put into the pot, or on the scales.

So, Fred and Betty have a baby.  Is the ‘fact’ that Fred was found to be one of two people who must have injured Pebbles, a ‘fact’ that can be put in the pot to mean that there is a risk that he might injure the new baby?

 The Supreme Court decided that this is not a ‘fact’ which can legitimately go into the pot when deciding risk to Fred and Betty’s baby.

“In re S-B is authority for the proposition that a real possibility that this parent has harmed a child in the past is not, by itself, sufficient to establish the likelihood that she will cause harm to another child in the future.

And here  (my underlining)

  1. The question which has been put to us, as set out in the Statement of Facts and Issues, is whether (i) a finding that a child has suffered harm while in the care of more than one person and (ii) a finding that one or both of the carers have perpetrated that harm are findings of fact which may be relied on in subsequent proceedings relating to only one of the potential perpetrators, in support of a conclusion that a subsequent child is likely to suffer significant harm in a new family unit of which that potential perpetrator is part.
  1. The answer which I would give, applying the test set out in para 49 of In re S-B (Children) (Care Proceedings: Standard of Proof) [2010] AC 678, is that these findings may be relied on only to the extent that they may be relevant to the issue the court has to decide. But to find that this information is relevant does not go far enough. This is because such findings would not be sufficient, on their own, to establish that a child in the new family unit was likely to suffer significant harm. If they are the only findings that are available, they must be disregarded in the assessment for lack of sufficiency. A prediction of future harm based on what has happened in the past will only be justified if one can link what has happened in the past directly and unequivocally with the person in the new family unit in whose care the subsequent child is living or will now live.

It is very important to note that the Supreme Court were keen to stress that the problem here arises in cases where the findings boil down to one single issue  “Who caused the injuries to Pebbles, or who can be excluded from causing those injuries?”

They go on to say that in most cases, the case will not be pleaded on the basis of that one finding, and indeed was not in the original fact finding hearing here.

As McFarlane LJ pointed out, there were several facts found by Judge Masterman which might have been relevant to an assessment of whether it was likely that this mother would harm children in the future. There was “(a) gross and substantial collusion expressly designed to prevent the court identifying the perpetrator; (b) failure to protect T-L; (c) deliberately keeping T-L away from health professionals in order to avoid the detection of injury” (para 109). The local authority have chosen not to rely upon these. They acquiesced in the decision to treat this as a one point case. The result was that this mother returned to the household where she had previously been looking after the three subject children for some time without (as far as we know) giving any cause for concern. She has now been looking after her new baby for more than a year, also without (as far as we know) giving any cause for concern.

If findings were made about Fred and Wilma in relation to those sorts of matters, they could go into the ‘pot’ for any children Fred or Wilma have with other people.

 In this case, it was the reliance of the LA on the single issue of “Fred is a risk to this baby, because the Court made a Lancashire finding about him not being excluded as having caused the injury to Pebbles” that meant that the threshold criteria on the new baby was not crossed.

 This is emphasised again here:-

Finally, I would observe that if, as has been said, the current law is causing consternation, that appears to me to be an over-reaction. It is important to emphasise, as Lady Hale has done at paras 52-54, that the court’s inability to establish whether X was the perpetrator of harm to a child in the past does not necessarily mean that the threshold set by section 31(2)(a) cannot be met in relation to a child now being cared for by X. It means however that some other cause for concern, besides the possibility that X was the perpetrator of the harm, must be established. The onus thereby imposed is, in a case of that kind, one which should ordinarily be capable of being discharged where substantial causes for concern currently exist. In practice, in the great majority of cases where a child has been harmed by one of its primary carers but it has not been possible to identify which of them was responsible, and only one of them is now responsible for the care of another child, it will be possible to establish facts on the basis of which a prognosis as to the future risk of harm can be made. The case at hand would itself appear to have been such a case, if the evidence before the court had not been deliberately restricted.

It is going to be important, therefore, in care proceedings, for the schedule of findings to be drawn up carefully, particularising a chain of events both before and after the injury, and making it plain those areas on which the Court can properly make findings that BOTH Fred and Wilma are culpable for, those areas which FRED is culpable for, those areas that WILMA is culpable for and then the ultimate question of who caused the injury being for the Court to determine whether it was FRED, WILMA or one of them with it being impossible to exclude either on the balance of probabilities.

 And thereafter, for any subsequent care proceedings involving children of Fred and Wilma to not rely   on the single  “whodunit” fact, but to rely on the totality of matters which were found in the judgment. 

 It is noteworthy that in fact, what the Supreme Court in effect said to this particular Local Authority is, that the threshold isn’t made out on the way that you have pleaded the case  (that Fred was the subject of a Lancashire finding), but you can pick through the original judgment about and make a threshold based on the findings that were definitive findings as to the parent’s culpability and failings, and just issue the proceedings again.

 So it is not as earth-shattering as ones first impression of it might be. It will mean a careful consideration on any threshold document involving a parent who had previously been the subject of a Lancashire style finding, and also a careful consideration of the schedule of facts proposed on any forthcoming finding of fact hearing.

[And of course none of any all of that tells us how a Court will decide the future of Fred and Betty's child, just whether in making their deliberations they should pay any attention to the finding that Fred may be one of the two people who injured Pebbles  - NO, they should not. ]

not as innocent as he looks

Oh Fred, you should have put forward an alternative perpetrator

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