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Mostyn J gets dissed by Court of Appeal despite not being the Judge in the case being appealed

 

Re A Children 2018

http://www.bailii.org/ew/cases/EWCA/Civ/2018/1718.html

Long-time readers will have been enjoying the regular frank exchange of views and pleasantries between Mostyn J and the Court of Appeal, but this is a new one.  The Court of Appeal in this case overturned a Judge who had been following Mostyn J’s guidance in a High Court case and therefore had the opportunity to say that Mostyn J was wrong as a sideswipe.

 

Did they resist this?

Reader, they did not.

 

  1. In A County Council v M & F, upon which the judge relied, Mostyn J having set out passages from Re B (and Baroness Hale’s confirmation of Re B found in Re S-B [2010] 1 All ER 705, SC,) went on:
    1. “16. Thus the law sets a simple probability standard of 51/49, but the more serious or improbable the allegation the greater the need, generally speaking, for evidential “cogency”. In AA v NA and Others [2010] 2 FLR 1173, FD, I attempted to summarise these principles at para 24:

17. Thus, it is clear that in all civil proceedings P cannot be set higher than a scintilla above 0.5. The various judicial statements that a more serious charge requires more clear evidence is not an elevation of P > 0.5. The requirement of evidential clarity is quite distinct from an elevation of the probability standard. Were it otherwise, and, say, an allegation of rape or murder of a child made in civil proceedings required P to be set at > 0.6 then one could end up in the position where a court considered that P in such a case was, say 0.51 but still had to find that it did not happen; when, as a matter of probability, is was more likely that not that it did. This would be absurd and perverse. P must always be set at > 0.5 in civil proceedings, but subject to the proviso that the more serious the allegation so the evidence must be clearer.”

  1. With the greatest respect to the erudition of Mostyn J’s arithmetical approach to the application of the ‘simple balance of probabilities’, I do not agree that it represents the appropriate approach, and it seems to me that this passage had, in part, led the judge to decide that, in order to determine whether the local authority had discharged the burden of proof to the necessary standard, he had to adopt the same approach. As a consequence, the judge mistakenly attached a percentage to each of the possibilities and thereafter, added together the percentages which he attributed to an innocent explanation and before concluding that, only if the resulting sum was 49% or less, could the court make a finding of inflicted injury

 

Perhaps envisaging a ‘says who?’ response to their very polite (if you are not a lawyer) ground and pound of Mostyn J, the Court of Appeal pre-empt this

 

  1. In A County Council v M & F Mostyn J had drawn on the shipping case of The Popi M ( Rhesa Shipping Co.S.A. v Edmunds, Rhesa Shipping Co.SA v Fenton Insurance Co Ltd) [1985] 1 WLR 948 HL,(Popi M) as an example of ” the burden of proof coming to the rescue”[18]. Lord Brandon, in his celebrated passage in Popi M, in declining to apply the dictum of Sherlock Holmes to the effect that “when you have eliminated the impossible, whatever remains, however improbable, must be the truth” said:
    1. “The first reason is one which I have already sought to emphasise as being of great importance, namely, that the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take.

The second reason is that the dictum can only apply when all relevant facts are known, so that all possible explanations, except a single extremely improbable one, can properly be eliminated

  1. Recently (and after A County Council v M&F), in Nulty Deceased v Milton Keynes Borough Council [2013] EWCA Civ 15, [2013] 1 WLR 1183 Lord Justice Toulson (as he then was) considered the use of an arithmetical approach to the standard of proof. Having first considered Popi M he went on:
    1. “33. Lord Brandon concluded, at 957, that the judge ought to have found simply that the ship owners’ case was not proved.

34. A case based on circumstantial evidence depends for its cogency on the combination of relevant circumstances and the likelihood or unlikelihood of coincidence. A party advancing it argues that the circumstances can only or most probably be accounted for by the explanation which it suggests. Consideration of such a case necessarily involves looking at the whole picture, including what gaps there are in the evidence, whether the individual factors relied upon are in themselves properly established, what factors may point away from the suggested explanation and what other explanation might fit the circumstances. As Lord Mance observed in Datec Electronics Holdings Limited v UPS limited [2007] UKHL 23, [2007] 1 WLR 1325, at 48 and 50, there is an inherent risk that a systematic consideration of the possibilities could become a process of elimination “leading to no more than a conclusion regarding the least unlikely cause of loss”, which was the fault identified in The Popi M. So at the end of any such systematic analysis, the court has to stand back and ask itself the ultimate question whether it is satisfied that the suggested explanation is more likely than not to be true. The elimination of other possibilities as more implausible may well lead to that conclusion, but that will be a conclusion of fact: there is no rule of law that it must do so. I do not read any of the statements in any of the other authorities to which we were referred as intending to suggest otherwise.

35. The civil “balance of probability” test means no less and no more than that the court must be satisfied on rational and objective grounds that the case for believing that the suggested means of causation occurred is stronger than the case for not so believing. In the USA the usual formulation of this standard is a “preponderance of the evidence”. In the British Commonwealth the generally favoured term is a “balance of probability”. They mean the same. Sometimes the “balance of probability” standard is expressed mathematically as “50 + % probability”, but this can carry with it a danger of pseudo-mathematics, as the argument in this case demonstrated. When judging whether a case for believing that an event was caused in a particular way is stronger than the case for not so believing, the process is not scientific (although it may obviously include evaluation of scientific evidence) and to express the probability of some event having happened in percentage terms is illusory.

36. Mr Rigney submitted that balance of probability means a probability greater than 50%. If there is a closed list of possibilities, and if one possibility is more likely than the other, by definition that has a greater probability than 50%. If there is a closed list of more than two possibilities, the court should ascribe a probability factor to them individually in order to determine whether one had a probability figure greater than 50%.

37. I would reject that approach. It is not only over-formulaic but it is intrinsically unsound. The chances of something happening in the future may be expressed in terms of percentage. Epidemiological evidence may enable doctors to say that on average smokers increase their risk of lung cancer by X%. But you cannot properly say that there is a 25 per cent chance that something has happened: Hotson v East Berkshire Health Authority [1987] AC 750. Either it has or it has not. In deciding a question of past fact the court will, of course, give the answer which it believes is more likely to be (more probably) the right answer than the wrong answer, but it arrives at its conclusion by considering on an overall assessment of the evidence (i.e. on a preponderance of the evidence) whether the case for believing that the suggested event happened is more compelling than the case for not reaching that belief (which is not necessarily the same as believing positively that it did not happen)”.

  1. I accept that there may occasionally be cases where, at the conclusion of the evidence and submissions, the court will ultimately say that the local authority has not discharged the burden of proof to the requisite standard and thus decline to make the findings. That this is the case goes hand in hand with the well-established law that suspicion, or even strong suspicion, is not enough to discharge the burden of proof. The court must look at each possibility, both individually and together, factoring in all the evidence available including the medical evidence before deciding whether the “fact in issue more probably occurred than not” (Re B: Lord Hoffman).
  2. In my judgment what one draws from Popi M and Nulty Deceased is that:
  3. i) Judges will decide a case on the burden of proof alone only when driven to it and where no other course is open to him given the unsatisfactory state of the evidence.

ii) Consideration of such a case necessarily involves looking at the whole picture, including what gaps there are in the evidence, whether the individual factors relied upon are in themselves properly established, what factors may point away from the suggested explanation and what other explanation might fit the circumstances.

iii) The court arrives at its conclusion by considering whether on an overall assessment of the evidence (i.e. on a preponderance of the evidence) the case for believing that the suggested event happened is more compelling than the case for not reaching that belief (which is not necessarily the same as believing positively that it did not happen) and not by reference to percentage possibilities or probabilities.

  1. In my judgment the judge fell into error, not only by the use of a “pseudo- mathematical” approach to the burden of proof, but in any event, he allowed the ‘burden of proof to come to [his] rescue’ prematurely.

 

I’m sure that Mostyn J is delighted by the dismissal of his P>0.5 formulation as ‘pseudo-mathematical’

 

The case they were talking about is one I wrote about here

 

https://suesspiciousminds.com/2012/05/04/a-county-council-v-m-and-f-2011/

 

but for my part, the more troubling one, where the mathematics (or pseudo-mathematics) applied to the balance of probabilities directly affect the outcome is here  (three years later, building on Re M and F  and building on the Popi shipping law case but overlooking the Nulty civil negligence about a fire and electrical engineering  law case)

 

https://suesspiciousminds.com/2014/02/07/mostyn-tacious-a-judgment-that-makes-your-temples-throb/

 

Anyway, the soup and nuts of both of them is that Mostyn J looked at a variety of explanations, malign and benign for incident X and then ascribed percentages to them, and saying whilst the malign explanation might be more likely than not than any individual benign explanation, he was instead totalling up the chance he had ascribed to each of the benign explanations and deciding that he could not say that the chance of malign explanation was higher than all of the possible benign explanations added together.  So what he was doing was saying  ‘There are 3 explanations. I think that the most likely of those three is that mother did this.  But if I ascribe percentage possibilities to each option, I might still decide that the two alternative explanations add up to more than 50%, so I’m not able to say that mother did this’

 

Anyway, the Court of Appeal say that the Court should not get into such esoteric exercises and simply say that on the balance of probabilities what do they say is the more likely than not explanation for event X.  Which is good news for anyone who doesn’t want to take a course in probability theory.

 

This case is desperately sad, even by care proceedings standards  – a ten year old girl is found dead. The police assume accidental strangulation by falling off a bunk and getting trapped in decorative netting. Poppi Worthington style errors are made in the investigation, and then evidence comes to light suggesting that the ten year old had been sexually assaulted (there is talk of DNA being present in intimate areas) and concerns then arise that the ten year old either hung herself intentionally or was killed  (deliberately or unintentionally as part of choking).  That obviously had massive implications for the other five children of the family.

At final hearing, the Judge concluded that the evidence that the girl was sexually assaulted was made out, but he could not say who perpetrated the assault  (there’s some odd wording about why the LA were refused their request to call the police officer who analysed the DNA samples) and whether it might be member of extended family or an intruder.  The Judge found that despite some conflicting expert evidence about causation of the death  (the medical research is that accidental strangulation happens rarely and to much much younger children) he was not able to make a finding that the malign explanation outweighed each of the possible benign explanations. Threshold was not met, the other five children went home.

The Court of Appeal concluded that

 

  1. In my judgment the judge fell into error, not only by the use of a “pseudo- mathematical” approach to the burden of proof, but in any event, he allowed the ‘burden of proof to come to [his] rescue’ prematurely.
  2. In my judgment the judge had failed to look at the whole picture. Not only did he fail to marry up the fact that S sustained two sets of injuries (one of which was fatal) but the judge, faced with the incontrovertible evidence in relation to the genital injuries, carried out no analysis of the available evidence in order to see whether an accident (for example) was a likely cause. Whilst in other circumstances I might have identified, or highlighted by way of example, certain evidence which I believe merited consideration by the judge, given my view that the appeal must be allowed and the matter remitted for rehearing, it would not be appropriate for me to comment further.
  3. Only if, having carried out such a comprehensive review of the evidence, a judge remains unable to make findings of fact as to causation, can he or she be thrown onto the burden of proof as the determinative element.
  4. In my judgment, in this most difficult of cases and in the most trying of circumstances, the judge failed to carry out such an analysis before relying on the burden of proof. This, when coupled with the erroneous conclusions of the judge in respect of the genital injuries and his failure to give those injuries any weight when considering whether S died as a consequence of an inflicted injury, must, in my judgment, lead to the appeal being allowed and the order set aside.
  5. I have considered with a deal of anxiety whether the case should be remitted given the lapse of time and that the family are reunited. I have however come to the unequivocal conclusion that it must. If S was killed other than by accident or suicide, it happened in that household and no one has any idea how or in what circumstances it came about. This is not a case, tragic and serious though that would be, where a child may have been shaken in an understandable momentary loss of self-control by an exhausted parent. This was a 10 year old child, and if it was the case that her death was caused by some unknown person strangling her with a ligature, the risk and child protection issues in respect of her surviving sister and brothers cannot be over stated. Traumatic though a fresh trial would be, it cannot be viewed as other than a proportionate outcome if, as they say is their intention, the local authority pursues the case.

 

That’s obviously a dreadful state of affairs either way.  Either something awful and malicious happened to this ten year old, in which case children were wrongly returned to the care of the parents  OR it didn’t, and having secured the return of their five surviving children having been under awful suspicion the parents have to go through it all again.  That’s unbearable however it turns out.

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Police disclosure and the LA role in care proceedings

 

This is a case where the High Court were looking into what had caused the death of X, an 8 day old baby, and what that might mean for where Z her 22 month old sister would live. Understandably, there was a police investigation into the death of X running in tandem to the care proceedings, and the police had a lot of material within their possession. Various court orders were made for the disclosure of police material, which ended up coming into the possession of the parties to the care proceedings in dribs and drabs, and every batch of documentation alerted them to the presence of more material.

 

I’m afraid that if you are a Local Authority lawyer, this case is about to place a lot of additional responsibilities on you. Sorry for that. You may want to nip out and buy a packet of chocolate Hobnobs to nibble on during the post, because you will need some comfort and calories.

 

  1. The fact-finding hearing was beset by problems arising from the late disclosure of material held by Lancashire Constabulary [“the police”]. It was not evident until day five of the hearing that the police held material of potential relevance to the issues I had to determine. With the assistance of counsel and the officers assigned to the investigation into X’s death, the court was provided by day nine of the hearing with an additional 900 pages of material. The hearing itself was significantly extended by both the process of disclosure undertaken at court and by the need to allow counsel time to digest and take instructions on this material.
  2. It will be obvious that the non-disclosure by the police of potentially relevant material could have both prejudiced the right of X’s parents to a fair hearing and deprived the court of information which might have shed light on what happened to X whilst in the care of her parents. That this could have happened in a case of such seriousness was bad enough but, in this case, the potential unfairness was magnified by the vulnerability of X’s mother who had been assessed as requiring the assistance of an intermediary throughout the hearing. Had it not been for the diligence of counsel and the time I allowed for instructions to be taken, the entire hearing might have been fundamentally compromised on fairness grounds.

 

This judgment, of Knowles J, considered the representations made by the Local Authority and the police about how this had emerged and what could be learned for the future.  I think its a beautiful judgment, and it captures a lot of important issues.

 

 

Lancashire County Council v A, B and Z (A Child : Fact Finding Hearing: Police Disclosure) [2018] EWHC 1819 (Fam) (02 July 2018)    

http://www.bailii.org/ew/cases/EWHC/Fam/2018/1819.html

 

 

For example, this is the best summary of the fundamental problem in police disclosure that I’ve seen

 

Simply put, disclosure is requested by those who don’t know what there is from those who don’t know what is needed. Thus, the parties to family proceedings don’t know what material is held by the police and so draft orders as widely as possible, imposing a significant burden on police disclosure officers. Conversely, the police have a poor understanding of the wide evidential canvas upon which the family court makes decisions and inevitably view the question of relevance through the narrow prism of criminal proceedings. In good faith the police provide what they think the family court needs but the reality is that they are ill placed to judge.

 

 

EXACTLY !

 

 

And that’s why we end up with orders asking for ALL MATERIAL held by the police, and why the system grinds to a halt. We don’t know what they HAVE, and they don’t know what we WANT

 

There are some other good judicial remarks about the role of the Local Authority in care proceedings, and I think these are really important, and it is helpful to have them all set out in one place.

 

As is required of crown prosecutors in criminal proceedings, local authorities must ensure that the law is properly applied; that relevant evidence is put before the court; and that the obligations of disclosure are complied with. Like crown prosecutors, the local authority must be fair, independent and objective and should always act in the interests of justice and not solely for the purpose of obtaining the order it may seek in public law proceedings. If it be thought that all the local authority requires from the police is material that will assist its case, that would represent a profound misunderstanding of the local authority’s duties to the court.

 

In the Court process, the Local Authority aren’t able to approach the case simply in terms of ‘winning it’, they have the duty to play fair as well.  I’m sure that this will attract comment, but it has always been my understanding that this is what a Local Authority has to do, and perhaps it was overdue a reminder.

 

The Judge notes at the outset that there is no cost-neutral way of solving these problems, and if you don’t already know that in such a scenario this cost burden is about to fall on the Local Authority then I wish I had your innocence.

 

  1. The other reason the existence of undisclosed material might not have been apparent is that the necessary forensic analysis of what had been disclosed was not carried out by the parties to these proceedings prior to the start of the fact-finding hearing. This might have made apparent some of the omissions in disclosure which emerged at the hearing itself. The current arrangements for public funding do not encourage advocates in the family justice system, who are often under considerable pressure, to analyse vast swathes of material in advance, for example, of a directions hearing. They simply do not get paid to do so. It is regrettably often only when the actual hearing is being prepared that anomalies in disclosure become obvious. To their credit, Miss Taylor QC and Mr Rothery both conceded that some of the evidential anomalies in this case would have been apparent from a close reading of the evidence as and when it was disclosed by the police.
  2. There is no simple cost-neutral solution to these problems. However, the applicant in public law proceedings – the local authority – must prove its case and, in so doing, must be alive to the strengths and weaknesses of all the evidence before the court. I regard that statement as supportive of the dicta of Ryder LJ in paragraph 36 of Re W (Care Proceedings: Functions of the court and the local authority) [2013] EWCA Civ 1227 namely, that proceedings under the Children Act 1989 are quasi inquisitorial in that the judge has to decide both whether threshold is crossed and the basis upon which that is so, whether or not the local authority or any other party agrees. It seems to me obvious that a local authority, with the greater resources available to it, will bear the lion’s share of the burden of assisting the court to determine not only its application but also any other pertinent issues in a case. It does so by ensuring that the evidence – from whatever source – is complete and in order and it takes the lead in ensuring that case management directions have been complied with. For a local authority to act in that impartial manner in public law proceedings is to facilitate the court’s quasi inquisitorial role in a process which is fair to all parties. In saying this, I make it plain that the other parties to proceedings are not absolved from their duties to cooperate with the court and comply with the court’s directions. Rather, the onus on the local authority, as the state agent in care proceedings, to conduct itself fairly and to assist the court is necessarily greater.
  3. None of the above is novel. As is required of crown prosecutors in criminal proceedings, local authorities must ensure that the law is properly applied; that relevant evidence is put before the court; and that the obligations of disclosure are complied with. Like crown prosecutors, the local authority must be fair, independent and objective and should always act in the interests of justice and not solely for the purpose of obtaining the order it may seek in public law proceedings. If it be thought that all the local authority requires from the police is material that will assist its case, that would represent a profound misunderstanding of the local authority’s duties to the court.
  4. To place these observations in context, the case law relating to the disclosure of local authority records in care proceedings has long emphasised the duties of local authorities to be open in the disclosure of all relevant material in their possession. The analysis of the relevant case law by Munby LJ (as he then was) in Durham County Council v Dunn [2012] EWCA Civ 1654 traces the judicial formulation and refinement of those duties [see paragraphs 37-43 in particular]. It bears repetition in the light of the observations I have made about the duty of a local authority to take an active role in preparing a case for determination by the court. What follows draws on Munby LJ’s analysis in the Durham case.
  5. In November 1989, the Court of Appeal had to consider the disclosure of local authority records in the context of care proceedings where allegations of sexual abuse were being made against a parent [R v Hampshire County Council ex parte K and Another [1990] 1 FLR 330]. The interest of the child was emphasised [page 336]:
  6. “… as part and parcel of its general welfare, not only in having its own voice sympathetically heard and its own needs sensitively considered but also in ensuring that its parents are given every proper opportunity of having the evidence fairly tested and preparing themselves in advance to meet the grave charges against them…”

The Court went on to state in the clearest of terms what the local authority’s duties were:

“…Local authorities therefore have a high duty in law, not only on grounds of general fairness but also in the direct interest of a child whose welfare they serve, to be open in the disclosure of all relevant material affecting that child in their possession or power (excluding documents protected on established grounds of public interest immunity) which may be of assistance to the natural parent or parents in rebutting charges against one or both of them of in any way ill-treating the child”.

The practical application of that duty was explained by Cazalet J in Re C (Expert Evidence: Disclosure: Practice) [1995] 1 FLR 204 (FD) held at 209-G-210A as follows:

“In R v Hampshire County Council ex parte K and Another [1990] 1 FLR 330 it was held that a local authority who brought care proceedings has a duty to disclose all relevant information in its possession or power which might assist parents to rebut allegations being made against them, save for that which is protected by public interest immunity…

… In my view it is the responsibility of the local authority actively to consider what documents it has in its possession which are or may be relevant to the issues as they affect the child, its family and any other person who is relevant in regard to an allegation of significant harm, and to the care and upbringing of the child in the context of the welfare checklist issues. The local authority should not content itself with disclosing the documents which support its case but must consider itself under a duty to disclose in the interests of the child and of justice documents which may modify or cast doubt on its case. The particular concern should relate to those documents which actually help the case of an opposing party. If there is any doubt about whether the information is relevant, consideration should be given to notifying the affected parties of the existence of the material. Whilst the temptation to invite costly, intrusive and pointless fishing expeditions should be avoided, there should be a presumption in favour of disclosure of potentially helpful information. If documents are obviously relevant and not protected from disclosure by public interest immunity, then the local authority should initiate disclosure.”

  1. Those duties have been underscored by the Strasbourg jurisprudence. In McMichael v United Kingdom (1995) 20 EHRR 205, the court was concerned with care proceedings in which social services and medical reports had been given to the court but not disclosed to the parents though the contents were made known to them. The court held that there had been violations of both Article 6 and Article 8, and in paragraph 80 held that the lack of disclosure of such vital documents was capable of affecting the ability of the parents not only to influence the outcome of the proceedings but also to pursue an appeal. Indeed, Article 8 imposes positive obligations of disclosure on a local authority involved in care proceedings. In TP and KM v United Kingdom [2001] 2 FLR 549 [paragraph 82] the court said:
  2. “The positive obligation of the Contracting State to protect the interests of the family requires that this material be made available to the parent concerned, even in the absence of any request by a parent. If there were doubts as to whether this posed a risk to the welfare of the child, the matter should have been submitted to the court by the local authority at the earliest stage in the proceedings possible for it to resolve the issues involved.”

Together with the dicta of Munby J (as he then was) in paragraphs 140-151 of Re L (Care: Assessment: Fair Trial) [2002 EWHC 1379 (Fam), [2002] 2 FLR 730, the principles of fairness embedded in the case law relating to the disclosure of records are directly relevant to the positive duties and responsibilities of local authorities I have outlined in paragraphs 40 and 41 above. There is nothing startling or new about any of this.

  1. All the above requires, in my view, that a local authority should take responsibility for ensuring that disclosure provided by the police in proceedings such as these is complete. Anomalies in the disclosure should be brought to the court’s attention as soon as possible. To do this properly takes time and time taken has a financial cost. That cannot be avoided given the seriousness of what is at stake for the children and the adults involved in these proceedings. I, like all of those involved in the family justice system, am acutely aware of the financial pressures on local authorities, but I venture to suggest that time taken to resolve any issues about police disclosure prior to the start of the hearing is likely to save local authorities time and ultimately money.

 

 

Para 45 immediately above is where the bus gets firmly parked in the LA parking space.

 

There you go – it is the duty of the LA to ensure that the police disclosure is full and complete and that material which assists the parents is included within it.

 

para 40   It seems to me obvious that a local authority, with the greater resources available to it, will bear the lion’s share of the burden of assisting the court to determine not only its application but also any other pertinent issues in a case. It does so by ensuring that the evidence – from whatever source – is complete and in order and it takes the lead in ensuring that case management directions have been complied with. For a local authority to act in that impartial manner in public law proceedings is to facilitate the court’s quasi inquisitorial role in a process which is fair to all parties

 

Reading all of those passages, I think it would be a risk for a Local Authority lawyer to assume that police disclosure will be mopped up by Counsel instructed for final hearing. There needs to be an analysis of the disclosure BEFORE that.

The Judge makes a practical proposal for all LA lawyers (and being one, I truly am sorry for ruining your day if you are one too)

 

  1. First, I repeat what I said in paragraphs 33 and 34. It would be advisable if all the police forces in England and Wales checked their own data management systems immediately to ensure that the problem evident in this case is not present in their own organisation. Local authority lawyers should also check with their local police force which data management system is being used to record and collate information any case where disclosure into family proceedings is required and to confirm that the disclosure team in that force has access to the relevant system.

 

Yuck….

 

I like the suggestions regarding the order though.

 

  1. I make the following suggestions by reference to paragraph 110 of the judgment of Francis J in the London Borough of Southwark case [see paragraph 5 above] in which he made a number of suggestions to assist parties in family proceedings where it appeared that the police were not cooperating with their disclosure obligations. Paragraph 110 reads as follows:
  2. “(i) The local authority will make a protocol request to the police at least 14 days prior to the issue of s.31 proceedings. In cases where the issue of s.31 proceedings is immediately preceded by an application for an emergency protection order or the s.31 proceedings are listed upon short notice, the protocol request shall be made upon issue of the s.31 proceedings.

(ii) Not later than seven days prior to the case management hearing, the local authority will issue an application for disclosure against the relevant police authority. The local authority will invite the court to list the application for disclosure on the same day as the case management hearing. The local authority will serve a copy of the application upon the police at least seven days prior to the case management hearing. The senior investigating police officer in the case should be invited to attend the case management hearing and be legally represented.

(iii) In the event that the police wish to withhold any disclosure from the parties, any application should be made by them not less than two days prior to the case management hearing. The application should set out clearly the reasons why disclosure is being opposed and why a redacted version cannot be provided.

(iv) Upon receipt of a protocol request or an application for disclosure, the police will provide a list or schedule of all the evidence and material they have within their possession that is relevant to the central issues in the Family Court case. This list shall address the following:

a) A short description of the evidence/material;

b) Whether the police agree to disclose that particular piece of evidence or material to the parties; and

c) In the event the police oppose disclosure of a particular piece of evidence or material clear reasons must be provided.

(v) At the case management hearing the police will provide the court with the following:

(a) details of any offences;

(b) whether any suspect(s) have been charged or not;

(c) custody status of any defendants;

(d) what bail conditions are applicable;

(e) any criminal court timescales.

(vi) In the event that the police seek to oppose disclosure on the basis that they consider the evidence to be irrelevant to the family proceedings the police will provide a copy of the documents to the court for the court to determine whether or not the evidence is relevant to the family proceedings.

(vii) The local authority will, throughout the course of the family proceedings, continue to liaise with the police as to whether any new evidence is obtained following the case management hearing. The local authority will update the parties and the court on a regular basis as to the outcomes of their liaison with the police.

(viii) Prior to any fact-finding hearing and/or final hearing the police will confirm which, if any, new evidence has been secured following the case management hearing and provide a further list or schedule addressing the issues set out above.

(ix) If the police object to any new evidence or material being disclosed the police must make a PII application as soon as practicable and, in any event, within seven days of that objection.

(x) The recording of any directions made in connection with police disclosure on case management orders should be sufficiently clear so as to enable the reader to have the ability to understand the key decision-making timetable in connection with this issue and the pro forma disclosure order contained within the protocol should be used.

(xi) It shall be the responsibility of the police and local authority to ensure that the police evidence is either disclosed to the other parties or that the court has the opportunity to determine any issue as to its relevance and/or PII application, sufficiently in advance of any fixture so as to enable the fact-finding or main hearing to proceed effectively.”

 

 

Knowles J gives some further guidance

 

  1. An additional step which should take place 5 days prior to any IRH or directions hearing before a fact-finding hearing is for a meeting to take place between the local authority solicitor (with preferably the advocate conducting the local authority’s case) and the police disclosure team. The purpose of that meeting should be to check that the police disclosure is complete and to provide an update to the family court as to the progress of the criminal investigation and the prospect of charge and/or criminal trial. It is not primarily a meeting to provide to the police information about the family proceedings and I suggest that the parties must agree prior to this meeting what the police are to know about the family proceedings. This meeting should be authorised by the court as part of the directions at the case management hearing. If that meeting is unnecessary because full police disclosure has taken place, it can be cancelled with the agreement of the other parties to the proceedings. The meeting should be recorded in the interests of transparency.
  2. Ideally, such a meeting should involve all the parties to the proceedings, but I recognise that those advocates who are publicly funded will be unable to claim payment to attend. In those circumstances, the safeguards I have proposed – such as agreement as to what can be said to the police about the family proceedings and recording the meeting so as not to compromise the advocates acting for the local authority – should be adequate to ensure that the process of police disclosure remains fair and transparent. It follows that, in preparing for this meeting, the local authority should be mindful of its duties to ensure that full disclosure of relevant material takes place even if it considers that a particular piece of evidence requested on behalf of a parent is of little evidential value. It should come to the meeting having read and considered what has already been disclosed and having identified any anomalies or problems in the police disclosure.
  3. At the IRH or directions hearing before a fact-finding hearing, the police – via the suitable senior officer – should provide to the court a signed declaration that the court’s order for disclosure has been complied with.

Extension of the proceedings for 6 months

 

I have to say that when I first read Re P (A child) 2018  I thought it was of limited interest and value and incredibly fact-specific, but I am aware that this is not how it is being viewed by some, and therefore felt it might warrant a blog post.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2018/1483.html

 

This is a Court of Appeal decision from an original decision from Her Honour Judge Probyn (who used to sit in my local area, and whom I like)

 

At the time of the final hearing, the child was 7 months old.  There were two older children who had been removed as a result of mother’s alcoholism and findings that the mother had told significant lies during those proceedings.

 

The mother, who had been a long-standing alcoholic, was seeking an extension of the proceedings for six months.  HHJ Probyn refused that and made a Placement Order,  mother appealed.  It is a very unusual set of facts, in that by the time of the final hearing, the mother had been abstinent for 13 months  (i.e she had got dry when she learned of the pregnancy and was still dry at the time of the final hearing.  The expert in the case had spoken about having a reasonable degree of confidence that abstinence could endure after an 18 month period (which is not that uncommon, and hence why mother was seeking a further 6 months to show that she could continue to maintain abstinence)

 

My immediate ball-park feeling is that the right outcome in the care proceedings would have been to make a Supervision Order, with further testing, and the case to be brought back to Court if mother relapsed, rather than continue with ICOs for a further 6 months.  I can’t think of a case I’ve ever had where a parent had 13 months of abstinence where a plan of adoption would have been granted.

 

(Hence my original view that the case was so fact-specific that it would be of no wider value)

 

By the time the appeal was heard, the 6 months had passed (of course) and mother had maintained her abstinence, so the appeal was always likely to succeed (and appealing on ‘give me more time’ became rather nugatory).

In terms of the adjournment

  1. For the purposes of considering whether or not the mother could make the necessary changes within the child’s timescale, the period in question is a delay of six months in relation to a baby of seven months of age.
  2. The courts are often faced with cases where the judge is told that some sort of therapy may result in a mother being able to parent her child, which therapy has not yet begun and will take an indeterminate period, often 18 months to 3 years. I accept that in such a case a plea for ‘more time’ by a mother serves no purpose but to put off the inevitable, to the detriment of the child in question.
  3. This court was faced with a very different situation. Not only had the mother been abstinent for 13 months but, in contrast to her earlier period of abstinence, she was, even on the local authority’s own case, now energetically cooperating with the follow-up. More importantly, there was an a new, and genuine, acceptance by her and insight on her part into both her alcoholism and its impact upon her child’s welfare.
  4. This proposed adjournment therefore not only tests out the mother’s ability to remain sober for the further six months, but also to judge her continued commitment to AA and the specialist rehabilitation service and to see whether the personality stability which had come with sobriety would be maintained. Most importantly from the local authority’s point of view, the adjournment would give the local authority and Dr Hallstrom an opportunity to see if the developing insight shown by the mother was capable of developing into an honest working relationship with the local authority such that, in the event that the mother has a “setback”, (which is by no means to be ruled out) she could be trusted to seek help in the interests of L.
  5. In my judgment there was a clear purpose in the adjournment, namely whether, within L’s reasonable timescales, the mother could capitalise on the considerable progress she had made such as to allow L to live with her mother. The outcome at the end of a further six months was not as the judge believed, inevitable and I am satisfied that, on the evidence before the court, there was a sufficient prospect of the court being in a position to decide that L could be safely placed with her mother to justify the adjournment.

 

The Court of Appeal considered that given the progress mother had made, a Placement Order was not the right order.

 

  1. That therefore leaves the question (Question 3) as to whether there was a “solid” evidence based reason to believe that the parent would be able to make the necessary changes within L’s timescale. It goes without saying that one “necessary change” would be the ability of the mother to satisfy the court that the combination of sobriety and further insight would allow the court to be satisfied that the risk to L, in the event that the mother has a relapse is manageable, and that the mother would be honest with the local authority and in such circumstances seek help at the earliest possible opportunity. In my judgment there is indeed ‘some solid evidence based reason to believe that the mother will be able to make the necessary changes within the child’s time scale”.
  1. In my judgment, had the judge, even in a couple of paragraphs, once she had rejected the application for an adjournment, gone on to consider all circumstances of the case by reference to the law in relation to placement orders that she had so carefully set out earlier in her judgment, she may well have hesitated again before concluding that L’s welfare “required” the severing of her relationship with her mother without more ado.
  2. I for my part, whilst fully accepting the legitimate concerns and doubts expressed by the local authority and the Children’s Guardian, cannot see how at that stage, L’s welfare required the breaking off of all L’s ties to her mother and full sister and in my judgment, the making of a placement order was a disproportionate outcome in all the circumstances of the case.

 

The wider point is made by the Court of Appeal at the end, being critical that the LA went ahead and reduced contact from four times per week to once per month and ended their support and assessment – the Court of Appeal suggest that once permission to appeal had been granted, the LA would have been wiser to have been active in the case and engaged with the mother.

 

  1. In conclusion, I note that by the time the appeal came on last week, the six month period sought by the mother had been and gone. The mother has remained sober throughout. The local authority, as already noted, has provided no support to the mother in the interim period and more particularly has not carried out any form of updating assessment of her because, Ms Connell told the court, their case remains that the mother cannot be trusted to be open and honest and the risk to L in the event of a relapse is therefore too great to allow them to reconsider their position, even now. They have, they said, shown good faith in reducing contact from four times a week to once a week rather than once a month which had been their original plan pending placement.
  2. I hope that the local authority may, on reflection, regret that approach and on reviewing the case conclude that in the interests of L, once Moylan LJ had granted permission to appeal, the better way would have been once again to have become active in the case, and to have engaged with the mother in order to see whether, their worst fears about the mother continued to be justified such that in the best interests of L the last resort of adoption remained the only option.

 

 

Now, I shall come to the passages which are attracting some attention beyond the very fact-specific elements of this case. It is obviously unusual to seek a 6 month extension to care proceedings, particularly post the Children and Families Act 2014   (I still think making a Supervision Order was the right approach, rather than adjourning for 6 months), but there are passages here dealing with that, and which some might suggest have broad applicabililty.   (I think not, but we shall watch and see)

 

  1. It is undoubtedly the case that all this was very recent, but it is important to note that the judge did not find that the mother was simply saying what the judge wanted to hear. The judge [107] accepted that the mother was showing insight and that there were ‘green shoots’. One can quite see that had the only options facing the judge been immediate rehabilitation or a placement order, then she may well have been driven to conclude that it was too little too late. It is however hard to see how, given that sobriety and honesty are inevitably intrinsically woven in together, a period of six months would have done other than to allow the local authority and Dr Hallstrom not only to see if she remained sober, but also whether the “green shoots “and developing insight could now lead to the sort of working relationship, co-operation, and therefore trust, that the local authority rightly regard as essential if the risk of a future relapse is properly to be managed.
  2. In my judgment the appellant is correct in her submission that whilst the history is of considerable importance, too much emphasis was placed on the historic lies to the extent that the judge seemed to regard this feature alone as determinative of the case. There was, as a consequence, a failure properly to set those undoubted and serious concerns against the genuine and significant progress made by the mother. If this progress was maintained the mother’s likely future level of honesty could be assessed in the context of sobriety and with a developing understanding and insight as against her historic drunkenness and lack of insight.
  3. Similarly in [111] the judge factored in, without more:
  4. (i) the “risk of serious emotional and physical harm to L,” but the risk of emotional and physical harm would only arise in the event that L was rehabilitated to the mother. It was therefore not a factor at this stage, namely the consideration of the application to adjourn, but would become important only at final care order and placement order stage.

(ii) the “risk of further damage to her attachment needs” The evidence in relation to attachment is recorded by the judge in her judgment at [91] namely that:

“…L is a baby of some six months and who over the coming months will be at a crucial stage in terms of her attachment development”

  1. Contrary to the judge’s judgment, there was no evidence that L had suffered attachment damage. On the contrary, the Children’s Guardian had observed L to be well attached to the foster carer and therefore able to make secure attachments in the future. Whilst delay is always inimical to a child’s interests, there is nothing in L’s history or life experiences to date to suggest that her position is any different to any other child of 6 months. The sooner L (in common with all children in her position) is settled with a permanent primary carer the better. However, the generally accepted critical period for forming long term secure attachments would not have been be fatally compromised in L’s case to such that delay had, in her interests to be, to all intents and purposes, the determining factor. This was particularly so in circumstances where it was common ground that adopters could be identified quickly following the making of a placement order (and indeed following the making of the placement order now challenged, prospective adopters were identified within a matter of weeks).
  2. In weighing up the issue of attachment the judge in my judgment fell into error in that she did not mention the fact that the mother was having good quality contact 4 times a week, or to the high praise given to her by L’s very experienced foster carer, evidence in my judgment of considerable significance when considering L’s timescales and that the alternative was adoption

 

There is some school of thought that paragraph 47 opens the door wide for extensions of care proceedings beyond 26 weeks when dealing with an infant, because unless there is specific evidence of attachment problems, the crucial window of attachment development is not fatally compromised by extending proceedings.  And thus, delay arguments are greatly diminished.

 

I instead read that to be  that when balancing the two factors, in this fact specific case of a mother who had been abstinent for 13 months, a delay of 6 months was better for this child and a realistic option to be preferred to the most dramatic and permanent order of adoption. Delay in this case was not and should not have been the determining factor. I don’t think that Re P bears that weight that some might put upon it , that it is carte blanche for extensions of proceedings if the child is under 1 and showing no attachment damage. Both of the Acts still stand. Delay generally is harmful to children and must be justified and extensions beyond 26 weeks must only take place if to resolve the proceedings justly.

 

Expect, however, to see Re P wending its way into skeletons and position statements, and there being yet more boilerplate passages in judgments.

 

(I hope I’ve made it plain that my view is that Placement Order was not the right order in this case – I just don’t think paragraph 47 can be lifted wholesale into other cases where the facts are so different.  It clearly has very direct application to a case where a parent has a substantial period of abstinence under their belt pre-dating the proceedings and it is being argued that because more time is needed to be sure the abstinence will last the child should not wait.

 

 

 

Parents refusing to participate

 

 

This decision of the Family Division of His Honour Judge Bellamy, sitting as a Deputy High Court case has a lot of unusual features.

Ian, you’re going to love this one.

 

O (A Child : Fact Finding Hearing – Parents Refusing to Participate) [2018] EWFC 48 (29 June 2018)

http://www.bailii.org/ew/cases/EWFC/HCJ/2018/48.html

 

At risk of spoilers, I’ll give the conclusion of the case, because that sums up why this case has unusual elements

 

 I find that O’s injuries are non-accidental injuries caused by either the mother or the father. In making that finding I acknowledge that had the parents engaged with these proceedings, including giving evidence at this finding of fact hearing, and had they taken advantage of their entitlement to specialist legal representation provided at no cost to themselves, the outcome of this hearing could conceivably have been different. However, the court can only arrive at its conclusions on the basis of the evidence before it. I am satisfied that the decision I have arrived at is the correct decision on the basis of the totality of the evidence before me.

O was less than 6 months old when he was admitted to hospital in Derby. He was found to have suffered bilateral parietal skull fractures with associated swelling of his scalp. The doctors considered this to be a skull fracture caused non-accidentally. Care proceedings were issued and an Interim Care Order made, placing O in foster care.

 

The parents decided not to instruct solicitors, despite being told that they could have solicitors of their choice without paying a penny for them and the difficulties of representing themselves in hearings that would involve complex medical evidence – and of course because they didn’t have lawyers or legal aid, they were not able to seek their own second opinion of the medical evidence.

 

During the course of those hearings the parents have attended, for the most part the mother has remained silent. She has spoken when spoken to. She has been monosyllabic. I formed the view that the decision that both parents should be unrepresented was a decision taken by the father and that it was a decision the mother has felt obliged to accept. Although she may understand that her interests would be better served by being legally represented, the father’s domination of her has meant that she has been unable to act in her own best interests.

 

The parents also, unsuccessfully, issued judicial review proceedings against the Hospital and the Local Authority, naming the Court as an interested party.

 

They also sought an injunction quashing the interim care order, deploying the unusual argument that once the care proceedings went beyond 26 weeks (someone having forgotten to formally extend them), they were over and the interim care order would cease and there could be no final hearing. That was refused and they appealed that refusal.

 

 

 

  1.        Section 32 of the Children Act 1989 requires the court to draw up a timetable ‘with a view to disposing of the application…within 26 weeks’. The section also gives the court the power, in certain circumstances, to extend the 26 weeks. In this case, as a result of an oversight, notwithstanding that the case has exceed the statutory 26 weeks no order of the court was made authorising that extension. The parents contended that as a result of that oversight the proceedings automatically came to an end when the 26 weeks expired and that as a consequence the interim care order also came to an end. It followed, submitted the parents, that since the 26 weeks had ended the local authority had wrongfully and unlawfully continued to place O in local authority foster care. The sought O’s return to their care immediately.

 

  1. I heard the parents’ submissions on 13th March. I concluded that the failure to make an order extending the 26 weeks did not have the effect of bringing the proceedings to an end and that the interim care order therefore remained in force. The parents have not attended any hearing since 13th March.

 

  1. The parents applied to the Court of Appeal for permission to appeal against my decision of 13th March. On 18th May, on consideration of the papers, McFarlane LJ refused the parents’ application on the basis that it was ‘wholly misconceived and is based upon a fundamental misunderstanding of Children Act 1989, s 32’. He concluded that,

 

‘It follows that neither the fact that the proceedings have lasted well beyond the 26 week deadline nor the fact that, for a period, no advance extension order had been granted, invalidate the current interim care order or mean that the case can no longer proceed to a final hearing.’

 

 

There was then a curious interlude when O’s social worker, in visiting the family inadvertently left his notebook behind, said notebook including details of other families and having tucked within it a draft statement, heavily annotated, relating to another family. The father returned the notebook, having read it. He was asked to sign an agreement not to distribute the information he had received from reading it and refused to do so.

 

 

 

  1.    Ms Walker [Social work manager] contacted the father. He confirmed that he had read the documents. She sought to persuade him to sign a written undertaking not to breach the confidentiality of the material he had read. Ms Walker says that the father,

 

‘21. …informed us that he was not willing to sign a written undertaking. He confirmed that he had taken copies of the court report and refused to delete the images stating: “I am not condoning this. The information is of public interest. I am a victim of the same situations as that victim. A child is in the system for no reason. There is significant public interest here, it appears to be a pattern.”’

 

 

 

  1. On 21st May the local authority issued proceedings seeking an injunction against the father to restrain him from publishing the material he had wrongly copied. An injunction was granted by Her Honour Judge Coe QC on 29th May

 

The parents played a very limited role in the care proceedings

 

27…..I called on the care case. Although the father was still in the court building at that point, and was well aware that the court was about to hear evidence from Dr Keillor, he left the building. The mother was not present at court.

 

  1. The father did not attend either of the two hearings listed on 18th June. In the civil proceedings I made a final order. In the care proceedings I continued the hearing in the absence of both parents.

 

  1. Not only have the parents failed to attend hearings they have also refused to accept documents served upon them. In a statement dated 14th June 2018 a local authority solicitor sets out the difficulties she has encountered in her attempts to serve documents on the parents. For example, she says that on 5th June she sent letters to both parents enclosing copies of the hearing bundle for use at this finding of fact hearing. The letters were sent by special delivery, guaranteeing delivery the next day and requiring the recipient to sign to acknowledge receipt. The solicitor say that the letter sent to the mother was returned to the local authority with the words ‘return to sender’ written on the package. This is not an isolated occurrence. The father has been equally difficult.

 

  1. The parents have also engaged in public protests relating to the actions taken by the local authority. In a second statement the local authority solicitor records that on 14th May she,

 

‘observed the Respondent Mother standing outside the Council House at the bottom of the steps on Corporation Street holding a placard which read “The Derby City Council and Royal Derby Hospital tortured me and stole my baby for adoption”. She wandered quietly up and down the pavement…Later that day the Respondent Father joined the Respondent Mother.’

 

 

 

  1. The solicitor observed the mother walking up and down outside the Council House again on 23rd May. Following liaison between herself and staff at Derby Royal Hospital she believes that the parents have undertaken similar protests at the entrance to the hospital.

 

  1. The solicitor goes on to say that the parents’ protest was reported on the website of the Derby Telegraph. She exhibits a copy. The article appears under the headline ‘Protesters with placards vow to stay outside Derby City Council’s HQ all week’. The article names the parents but goes on to say that, ‘The Derby Telegraph has decided not to reveal the exact details of the complaint for legal reasons’.

 

  1. On Monday 18th June, effectively the second day of the finding of fact hearing, the father attended at the council offices and returned the hearing bundle for this hearing.

 

  1. The hearing on18th and 19th June was in Derby. The final two days of the hearing took place in Chesterfield. This was a late change of venue. The allocated social worker met with the parents on 20th June. He provided them both with travel warrants to enable them to attend the hearing in Chesterfield. Neither of them attended.

 

 

HOWEVER, within the care proceedings, there was not unanimity between the instructed experts as to whether the account given by the parents for the injury (O falling off a bed onto the floor from about 2 ½ feet whilst father was bending down to get a nappy) was inconsistent with the injuries, or potentially consistent with them if the Court was satisfied that the account was truthful.

 

The authorities are very plain that the Court is allowed to take account of the medical evidence and has to give reasons for disagreeing with it, but is not bound to follow the medical evidence slavishly and can take into account the broader factual matrix including the Court’s assessment of the parents and their evidence. That’s even more important where there is a disagreement between the experts as to the explanation given.

 

Dr Kalepu’s conclusion was unequivocal. In a written report dated 30th May she opines that,

 

‘The changing history from the father and the history of fall from a 2½ feet high bed onto a carpeted floor is not compatible with the swelling identified with an underlying bilateral parietal fractures…

 

The finding on the CT scan with bilateral parietal skull fractures and associated small subdural haemorrhage on the right is not compatible with the history of falling off a bed onto a carpeted floor. As the impact of such a fall from a small height would not be enough to sustain bilateral skull fractures in an immobile infant with normal bone density.

 

Though he has low vitamin D levels, this does not cause bilateral skull fractures in this child, because the bone density is normal. Hence it is consistent with non-accidental injury.’

 

 

 

  1. In a subsequent report dated 14th June 2017, Dr Kalepu remained equally unequivocal. She says,

 

‘I would like to clarify that I have not asserted that the injuries were caused by one event in my medical report. The history given by father of O falling off the bed on to carpeted floor was inconsistent with the bilateral parietal skull fractures. To sustain bilateral skull fractures it would need a significant amount of force. A fall on one side of the head would not cause skull fracture on the opposite side. Although a call would involve more than one impact, the force on the second impact during a fall would not be enough to cause a skull fracture.

 

The skeletal survey did not show any other bone injuries other than the bilateral parietal skull fractures.’

 

 

 

  1. The expert medical evidence does not support the robust and unequivocal conclusions arrived at by Dr Kalepu.

 

 

  1. Dr Stoodley said that in his view a fall from the bed as described is a possible cause for the fractures, ‘albeit unusual to see such injuries (particularly bilateral skull fractures) as a result of such domestic type trauma’. He agreed that it is possible for a single impact event to give rise to bilateral skull fractures. Though unusual, ‘such an outcome is a recognised outcome of a single impact event’. Dr Stoodley is unable to exclude the explanation given by the father as a reasonable, as opposed to a fanciful or merely theoretical, possible explanation.

 

  1. In his oral evidence Dr Stoodley said that the causative event is likely to have occurred during a window beginning 7 to 10 days prior to the date of the CT scan. In other words, the causative event did not necessarily occur on the day of O’s admission to hospital. It could have occurred earlier.

 

  1. Dr Stoodley considers the father’s explanation to be a reasonable explanation though in his opinion for that event to cause bilateral parietal fractures would be very unusual. He conceded that doctors do not know all the answers. He referred to an unpublished study undertaken by the biomechanical laboratory at Cardiff University. The study, undertaken using computer modelling, suggests that impact at certain points on the head can create forces within the skull which lead to bilateral parietal fractures.

 

 

Dr Ward

 

  1. Dr Ward’s report is thorough and detailed. Having reviewed the evidence, including Dr Stoodley’s report, and having referred extensively to relevant research literature, Dr Ward opines that,

 

‘A history of a fall is common in a child presenting with a skull fracture. In this case although there was some initial variation in the history offered (falling off the bed versus being dropped by the father) it was consistently stated that the child fell in the course of changing a nappy. The father stated on one occasion that he dropped the baby but at other times in his statement he said that the child who was on the edge of the bed fell to the floor when he bent down to get a nappy from the floor. The preponderance of literature on childhood falls indicate that short falls rarely result in serious or life-threatening head injuries despite their frequency. Each credible study supports the conclusion that severe head injuries reported to be accidental unless related to a moving vehicle accident or fall from a very significant height are very likely to be the result of abuse particularly if the injuries are ascribed to falls from short heights that occur at home unwitnessed by objective observers. However, fractures may rarely result from short falls onto carpeted floors.’

 

 

 

  1. Dr Ward later goes on to say that,

 

‘The clinical findings in O suggested impact more than one would expect as a result of a simple fall onto a carpeted floor. Nevertheless there are examples of fractures resulting from low level falls and the scenario of bilateral skull fractures has been described as a result of a single impact.’

 

 

 

  1. Research suggests only 1 to 2% of falls from a low height, such as falling off a bed, cause skull fractures. The figure is even lower for such an event causing bilateral parietal skull fractures. For the incident described by the father to have caused these injuries would, therefore, be a highly unusual occurrence. However, as the research indicates, such events do occur. The father’s explanation is, therefore, plausible.

 

  1. As I have noted, Dr Stoodley’s opinion is that the window within which these fractures were sustained is during the period between the date of the CT scan and a date between 7 and 10 days before that scan was undertaken. Dr Ward’s evidence on timing is that,

 

‘It is not possible to accurately date skull fractures on the basis of the radiological appearance of the fractures; skull fractures do not go through the changes associated with callus formation seen in long bone and rib fractures. If one accepts that the soft tissue swelling to the scalp was associated with the fractures this would suggest that the fractures are recent. Soft tissue scalp swelling associated with fractures usually occurs over a period of hours or days after the injury and resolves within around 7-10 days. Therefore in this case it is likely that the fractures occurred no more than around 10 days before presentation. However there is no scientific basis for dating fractures on the basis of scalp swelling and it is not possible to use this as an indicator as to whether the two fractures occurred simultaneously or at different times within the timeframe.’

 

 

 

  1. Dr Ward highlighted a number of positive ‘red flags’ that support the father’s explanation. O had no other injuries. On admission to hospital he appeared to be a healthy, well-cared for baby who was developmentally normal. There were no intra-cranial injuries. There were no retinal haemorrhages. There was no evidence of a shaking injury. There were no rib fractures and no metaphyseal fractures. To Dr Ward’s list it would also be appropriate to add that if the father’s account is true then he sought medical advice promptly and acted immediately on the advice received, taking O to hospital straight away.

 

  1. Dr Ward sets out the results of the various tests carried out when O was in hospital. She notes that at the relevant time O had a biochemical deficiency of vitamin D. She says:

 

‘Biochemical vitamin D deficiency or insufficiency in the absence of radiological features of rickets has not been found to be associated with increased risk of fractures. However biochemical vitamin D deficiency in the presence of radiological changes of rickets is considered to be associated with an increased risk of fracture therefore I would recommend expert paediatric radiological review of O’s skeletal survey.’

 

Vitamin D deficiency does raise a red flag in a case of suspected non accidental injury, and an expert was instructed to look at that.

As I have just noted, O was found to have a Vitamin D deficiency. That raises a question about the possibility of him suffering from an underlying condition leading to easy fracture. Having examined the imaging, Dr Landes says that, the bone density appears radiographically normal and there are no features to suggest an underlying bone fragility disorder. In particular, Dr Landes is clear that there are no radiological features of rickets or of osteogenesis imperfecta.

 

  1. Agreeing with Dr Stoodley, Dr Landes goes on to say that,

 

‘these fractures may have occurred as a result of a fall from the height of a bed. I agree that it is also possible that these fractures may have occurred as a result of one or more than one other event.

 

It is not possible to determine, from the imaging alone, which of these possible scenarios is the more likely.

 

In the absence of a clear and satisfactory account of the mechanism of trauma or a medical explanation for the fracture, the most likely explanation for the presence of bilateral skull fractures in an infant of this age is non accidental injury,

 

My quick and dirty analysis of the medical evidence is that a fall from a bed is an UNLIKELY but POSSIBLE cause for the skull fracture.

 

Of course, the parents not being represented (so that the experts could be challenged and perhaps increase the level of possibility of it being an accidental injury, or consider the clinical features that could support that or diminish the counter proposition of it being inflicted) and not giving evidence (so that the Court could assess their credibility and whether they were consistent and honest) makes the Courts task harder.

 

What we end up with here is the Court making findings that the child on the balance of probabilities suffered non-accidental injury BUT accepting that the outcome might have been different if the parents approach to the care proceedings had been different. That’s very hard to swallow, but I think it is a realistic appraisal. Had these parents been represented by Paul Storey QC or Jo Delahunty QC or John Vater QC or a handful of other top NAI family law experts, I don’t think the findings would have been made.

 

 

 

 

  1.        Before I consider each of those proposed findings, it is necessary to say something about the way the parents have approached these proceedings. At the hearing on 2nd June 2017, at which the court made an interim care order, the parents, were legally represented. Since that hearing (and, as it would appear, as a result of the outcome of that hearing) the parents have represented themselves. That was an unwise decision. Worse was to come. At the end of the hearing on 13th March 2018 the father indicated that the parents did not intend to take any further part in the court proceedings. The justification for that decision is unclear though according to the ‘Grounds of Claim’ prepared in support of the parents’ application for judicial review it would seem probable that their decision is based upon their conviction that these proceedings (including my oversight of the proceedings as the allocated case management judge) have been unfair and that O has been unlawfully removed from their care.

 

  1. Notwithstanding my own efforts and those of O’s social worker, the parents now steadfastly refuse to engage in these proceedings. I echo the sentiment of the social worker, Gideon Zeti, who in his statement dated 30th April 2018 said,

 

‘While I can see such lovely parent to child interaction via contact, it makes me sad and frustrated that I cannot support these parents to engage with me, so that we can work together to ensure O’s needs are met’

 

 

 

  1. The parents’ failure to engage defies all logic. The effect of their failure to engage could prove to be catastrophic for them and for the son whom they clearly love very much indeed. I share Mr Zeti’s sense of sadness.

 

  1. I turn now to the findings sought by the local authority. It is appropriate to deal with the first and second findings together:

 

‘1. O suffered a single impact event or alternative mechanism such as separate impact events on both sides of the head or a crush injury, by an application of force which would suggest that trivial head trauma is unlikely, in the care of the Mother and/or Father.

 

  1. As a result of the assault(s) at 1 above, O suffered serious inflicted injury including:

 

  1. Soft tissue scalp swelling in both parietal regions which is more extensive on the right.

 

  1. Bilateral parietal lucencies consistent with linear fractures in both parietal bones.

 

  1. Very small collection of extra-axial acute blood on the right-side swelling.’

 

 

 

  1. These two paragraphs require the court to answer two questions, First, has O sustained any injuries? Second, if he has sustained injuries, are those injuries accidental or non-accidental in origin? In using the expression ‘non-accidental injury’ I have well in mind the cautionary words of Ryder LJ in Re S (A Child) [2014] EWCA Civ 25 at §19 concerning the use of that expression, to which I referred earlier.

 

  1. Has O suffered an injury? More particularly, has he sustained bilateral parietal fractures? In light of the medical evidence referred to earlier in this judgment the answer may seem to be obvious. However, it appears to be the parents’ primary position that O has not sustained any skull fractures.

 

  1. Two of the treating clinicians and two of the medical experts have given oral evidence at this hearing. Notwithstanding the absence of the parents, that evidence has been appropriately tested in cross-examination by the solicitor for the child. In my judgment, the medical evidence makes it plain that O has indeed sustained bilateral parietal skull fractures with associated swelling to his scalp and a very small collection of extra-axial acute blood beneath the right-side swelling. I am satisfied on the simple balance of probabilities that that is indeed the case.

 

  1. The parents’ secondary position is that the skull fractures are birth-related. Once again, there is nothing in the medical evidence before me to support a finding that these injuries are birth-related. On the contrary, Dr Stoodley is very clear that they are not birth-related. I am satisfied on the simple balance of probabilities that these injuries are not birth-related.

 

  1. Either O’s injuries have been caused accidentally or they are non-accidental. The parents’ position appears to be that if the court does not accept their primary and secondary positions (i.e. that O has not sustained bilateral skull fractures or if he has then they are birth-related) then the only other explanation is that they were caused when he accidentally fell onto the floor on 27th May 2017. The mother says that she was downstairs when this incident occurred. She did not witness it. The only witness is the father.

 

  1. Were the injuries caused as a result of an accident? There are a number of factors that support the parents’ contention that O’s injuries are the result of the low-level fall described by the father. The positive factors which appear to make the parents’ explanation credible are that,

 

(i)                There is research evidence that between 1% and 2% of falls from a low height cause skull fractures. That evidence also suggests that low-level falls have on occasion caused bilateral skull fractures, though the incidence of bilateral fractures is lower than the figure for single fractures. Dr Stoodley and Dr Ward are both agreed that although the parents’ explanation is an unlikely mechanism for the causation of O’s injuries, their explanation provides a possible and not merely a fanciful explanation.

 

(ii)               A skeletal survey did not disclose any other fractures.

 

(iii)             At the time of O’s admission to hospital he was noted to be well-cared for, well-nourished, putting on weight at an adequate rate (he was on the 25th to 50th centile) and developmentally normal. Save in respect of the head injuries, there was nothing in O’s presentation that gave cause for concern.

 

(iv)             Both in hospital and subsequently during contact, both parents have been observed to be loving, caring and capable of meeting O’s needs. It is clear that O is the apple of his parents’ eyes.

 

(v)               Whatever may have happened on 27th May and whether or not they did, in fact, call 999, it is clear that the parents contacted the hospital for advice, that they did so promptly and that they acted on the advice they were given by taking O to hospital immediately.

 

  1. Against those points, there are other issues which raise concerns about the parents’ explanation and their reliability as witnesses.

 

(i)                 The father’s account of O falling onto the floor is not consistent. When he telephoned the hospital he told Staff Nurse Young that he had dropped O. When he gave a history to Dr Keillor, initially he said that O had fallen off the bed. Given that O was a wholly immobile child, that would appear to be an unlikely explanation. Later in that same interview the father said to Dr Keillor ‘actually I dropped him’. Later, when giving a history to Dr Kalepu, he said that O had fallen from the bed onto the floor.

 

(ii)               The parents say that they called 999 but the East Midlands Ambulance Service has no record of the call. Production of the parents’ mobile phone records may have confirmed their account. Despite being ordered to do so the parents have failed to produce those records.

 

(iii)             The parents were not wholly cooperative at the hospital. They were asked to give their consent to a skeletal survey being undertaken. Initially they refused. They later consented.

 

(iv)             The father was not open with the police when interviewed. During his interview the father repeatedly said, ‘I choose not to answer that question at the moment’.

 

(v)               Notwithstanding their entitlement to non—means and non-merits tested legal aid (i.e. they were entitled to free legal aid) the parents chose to act as litigants in person, a decision that was irrational and counter-productive in equal measure.

 

(vi)             I have earlier expressed concern that the mother’s decision to act as a litigant in person was a decision imposed upon her by the father and not a decision that was freely made.

 

(vii)           In issuing proceedings for judicial review and in taking, copying and threatening to publish confidential information which he had obtained in circumstances which bordered on the dishonest, the father demonstrated that he is not focussed on the needs of his child. This impacts on my assessment of his credibility.

 

(viii)         The expert medical evidence is to the effect that there is a window of time within which these injuries may have occurred and that window began 7 to 10 days before the CT scan was carried out on 27th May. Dr Ward’s evidence is that the swelling to the scalp ‘usually occurs over a period of hours or days after the injury’. The parents have not provided any account of the events of the days leading up to O’s admission to hospital.

 

  1. In addition to all of the factors outlined in the last two paragraphs is the fact that the parents’ have chosen not to give oral evidence at this hearing. Although the burden of proof rests upon the local authority and although the parents do not have to prove (whether on the simple balance of probability or otherwise) that their account of a low-level fall is the causative event, their failure to give evidence means that their credibility simply cannot be tested.

 

  1. As Baker J aid in Re L and M (Children) [2013] EWHC 1569 (Fam), the evidence of the parents and any other carers is of the utmost importance. It is essential that the court forms a clear assessment of their credibility and reliability. In this case the court has been denied that opportunity. What is the consequence of that failure?

 

  1. In Re O (Care Proceedings: Evidence) [2003] EWHC 2011 (Fam). Johnson J was very clear. He said, that ‘As a general rule, and clearly every case will depend on its own particular facts, where a parent declines to answer questions or, as here, give evidence, the court ought usually to draw the inference that the allegations are true.’

 

  1. I have come to the conclusion that I am satisfied on the simple balance of probabilities that O’s injuries are non-accidental injuries. The expression non-accidental injuries covers a spectrum from the negligence to the deliberate infliction of injuries. Although the parents have not given evidence at this hearing, the totality of the evidence before me leads me to the conclusion that I am satisfied that these injuries are the result of an incident that falls at the lower end of that spectrum.

 

  1. I turn next to the third finding sought by the local authority:

 

‘3. The assaults and injuries were inflicted by:

 

  1. The Mother, or

 

  1. The Father, or

 

  1. The Mother and the Father, or

 

  1. The Mother and/or the Father’

 

 

 

  1. The window of time within which these injuries were sustained commences 7 to 10 days before the CT scan. The parents do not live together. The mother is O’s primary carer. For most of the time during that window O was in her sole care. The father only had care of the child on the days when he visited the mother from his home in Liverpool. Much of that care will have been in the presence of the mother, though it is clear that during those short contact periods there were times when O was in the father’s sole care. The father describes such an occasion on 27th May 2017.

 

  1. I have come to the conclusion that it is not possible, on the simple balance of probabilities, to identify the perpetrator. The perpetrator is the mother or the father. The evidence, and not least the parents’ failure to give oral evidence, does not enable me to go further.

 

I think it is very likely that there will be an appeal of this decision, and it will be very interesting to see how the Court of Appeal approach it. To borrow from criminal law, it seems that this has the hallmarks of an ‘unsafe conviction’ yet the reason for that is the parents unwillingness to participate in the process. That poses a massive and difficult question for the Court of Appeal – do they approach it on the basis that the parents made their bed and must lie in it – which runs the risk of unfairness and the incorrect conclusion OR overturn the decision and send it for re-hearing, which opens the door for any parent to have a second bite of the cherry by stymieing the process by non-engagement, which surely the Court of Appeal would be wary of doing.

 

It’s a very tricky one. If I knew these parents, I’d be telling them to get lawyered up as soon as possible.

Rapidly crumbling – Bruzas v Saxton

 

 

This is an ancillary relief case, but one that (when it is finally decided) could have massive implications for lawyers in all fields.

 

Bruzas v Saxton 2018

http://www.bailii.org/ew/cases/EWHC/Fam/2018/1619.html

 

I’ll try to give a quick and dirty explanation of the key concept – legal professional privilege. (I’m doing this because not all of my beloved readers are lawyers). Basically, what you say to your lawyer is secret, and the lawyer can only share it with other people with your permission. Whilst you can be asked by a Judge to produce documents, you can’t be asked to provide copies of your legal advice (generally, there are some very very unusual exceptions – one particular one is where what has gone on between you and your lawyer is fraudulent or malpractice – what normally gets bundled together as the concept of ‘iniquity’ https://www.lawgazette.co.uk/practice-points/exception-to-the-privilege-rule/5046185.article ) and you can’t be asked questions about the legal advice that you’ve been given. The only time that the legal advice that you’ve been given comes before the Court is when you agree – that’s called waiving privilege.

 

This is a really important principle of law – it allows the client to be really honest and frank with their lawyer and in turn allows the lawyer to give very honest and robust advice without worrying that the other side will see it and turn it to their advantage.

In this case, a husband and wife were divorcing and arguing about their financial affairs. A paralegal at the law firm instructed by the husband was working on the case (a paralegal means someone doing some form of law work, but is not a qualified solicitor or legal executive – it can mean doing very complex and involved work, or it can be being a photocopying monkey or anything in between. Paralegals, as in all professions, can include incredibly able and talented people, or people who are less so)

The paralegal took it upon themselves to send lots of documents from the lawyer’s file (which were secret) to the Court (who should not have had them).

 

 

 

 

 

 

4.During January 2018, Parker J received through the post a quantity of documents or “material” from a person who was employed during 2017 as a paralegal in the firm of solicitors who had been acting, both in 2013/2014 and still in 2017, on behalf of the husband. I stress that I have not personally seen any of those documents or material at all. I understand, however, that they contain, or include, some account of things allegedly said between the husband, as client, and his solicitor (by whose firm the informant was employed) and junior counsel during the course of 2017. It provisionally appears, as I understand it, that the paralegal was acting in some way as what is colloquially known as a “whistle blower”. The wife herself has said several times today that she does not know that person and has never met her and has never communicated directly with her.

 

Sadly we don’t have any details as to whether there was a covering letter, or post-it note, or anything from the paralegal that explained why he or she was sending the material, but there appears to have been something to show that it was a ‘whistleblowing’ activity, rather than say a mistake (copying those documents to send to the husband who was the client, but wrongly sending them to the Court)

 

Parker J did something curious here, in that the Court being in possession of documents which appeared to be covered by legal professional privilege did not do what I would recommend (recuse yourself from the case, send the documents back to the husband’s firm saying that they had not been read or copied but that Parker J wouldn’t do the case any more) but instead sent them to the wife’s team.

At that point, the cat is out of the bag. The wife has those documents, and has not come by them by any underhand or duplicitious means – she was sent them by the Court. It is hard for her, or those advising her not to give them any thought.

 

(We don’t know what was in the documents, and it would be wrong to speculate – particularly since that might be accusing the husband or his legal firm of sharp practice. I have my own ideas on what they might be, but it would be a guess, not an informed view)

 

 

5.This clearly created a most unusual and difficult situation for Parker J, who decided of her own motion to set up a further hearing, which took place on 22 February 2018, to consider what should happen in relation to these documents and material. Parker J had, however, already supplied copies of all the documents and material to both parties, who then had and still do have them in their possession. At the further hearing, the wife again appeared in person and Mr Philip Marshall QC, who had appeared on behalf of the husband at the hearing in December 2017, again appeared on behalf of the husband. In advance of that hearing, the wife had sent to the solicitors then acting on behalf of the husband (who were not the solicitors who had previously acted on his behalf, and are not the solicitors acting for him now) a formal but unissued application notice in Form N244. That application notice is dated 16 February 2018 and an unissued and unsealed copy of it is indeed already on the court file. Under paragraph 3 of the application notice, in answer to the question, “What order are you asking the court to make and why?” the wife wrote, “To overturn judgment made on 11 December 2017 that dismissed application for setting aside consent order. Grounds are perjury and perverting the course of justice committed by respondent and his legal team.” After the hearing on 11 December 2017, the wife had expressly indicated that she did not have any intention to seek to appeal from the decision and order of Parker J of that date. It does seem that her unissued application in Form N244 and its reference to “perjury and perverting the course of justice” was triggered by the contents of the documents and material that the paralegal had sent to Parker J and Parker J had, in turn, sent to both parties.

 

 

 

 

6.At the hearing on 22 February 2018, there was an application that Parker J should now recuse herself from further involvement in this case, effectively on the grounds that she had already seen the material sent by the paralegal which, in the submission on behalf of the husband, is protected by legal professional privilege. Accordingly, she made an order on 22 February 2018, the gist of which was, and is, that this case should now be allocated to a different judge and that there should be a further hearing (in the event, today’s hearing) at which the new judge would “consider the future conduct of this matter, to include the process by which the court shall determine the admissibility or inadmissibility of the information provided by [the paralegal]”. All that was done on an assurance recited in the order of 22 February 2018 by the wife that she would issue the application to set aside the order of 11 December 2017, of which she had already sent an unissued copy to the husband’s then solicitors under cover of a letter dated 16 February 2018.

 

 

 

 

7.So, we come to today. There is a number of reasons why I feel quite unable in any substantive way to begin to resolve any of these issues of admissibility today. They are, in no particular order, first that, unfortunately, the official transcripts of judgments given by Parker J on each of 11 December 2017 and 22 February 2018 are not yet available, so I do not know at all what her reasons were for dismissing the application to set aside the underlying consent order made in March 2014, nor do I know any reasons or observations made by her during the course of the hearing of 22 February 2018. Second, and I do not intend the least reproach or disrespect by this comment, I do not feel today sufficiently informed as to the relevant legal framework. The law in relation to legal professional privilege is complex and still developing and evolving, and quite intense consideration may require to be given to it. Third, very provisionally, I feel today that sooner or later a judge is likely to have to read these documents and information and material before ruling on their admissibility, unless Mr Marshall is able to persuade the court that the rules in relation to legal professional privilege are so impregnable that, on the facts and in the circumstances of this case, the material simply cannot be seen by the court, even if (as to which I could only speculate) they were to reveal blatant fraud or other malpractice. Fourth, although somewhat technically, the fact is that despite the assurance which she gave to Parker J on 22 February 2018 the wife, in fact, has still not issued her application and so, at least formally, there is simply no application or matter before me at all today. So, for a combination of those reasons, I limit my consideration of this case today to the giving of directions only.

 

 

 

8.Clearly, this matter can and should only proceed further at all if the wife does now formally issue her application in Form N244, which she prepared in the correct form and dated 16 February 2018, but has simply failed, or neglected, or overlooked issuing. She gives me, after due explanation by me, a solemn undertaking and promise to the court that she will, by 4.00 p.m. on Friday, 29 June 2018 (just over a week), formally issue that application with the court and pay any required court fee and thereafter serve it forthwith upon the husband’s current new solicitors. The order will make crystal clear that the whole of the order which follows will only come into effect if and when the wife has so issued that application and served a sealed copy of the issued application upon the husband’s solicitors. There will then be some directions as to obtaining as soon as possible the outstanding transcripts of the judgments of Parker J, and also a full verbatim official transcript of the whole of the hearing of 22 February 2018. That hearing was apparently short, but an issue has already arisen today as to things which the judge is alleged by one side and denied by the other side to have said during the course of it.

 

 

 

 

9.Provided that the wife does issue her formal application as described, then I propose to list this matter before the President of the Family Division himself during the Michaelmas Term 2018 for a ruling as to whether or not the information and material supplied by the paralegal should be admitted into evidence. I will require Mr Marshall QC to file and serve in good time before that hearing a detailed skeleton argument, and bundle of all relevant authorities, dealing with the circumstances, if any, in which legal professional privilege can be breached and his submission as to whether in any circumstances, and if so what, the court should look at the disputed documents in this case.

 

 

 

 

10.It seems to me that the particular facts and circumstances of this case raise a novel and very serious point. The law is already familiar with situations such as the inadvertent or accidental supplying to another party to litigation of some privileged document. There is either a decided case, or, at any rate, a much discussed example, of a solicitor inadvertently enclosing with a letter to the other side some document such as his client’s own proof or an attendance note. The law in relation to such circumstances as between two firms of solicitors is probably now fairly clear. Then there are circumstances in which accidentally a document may actually come into the hands of the litigant himself or herself on the other side, and that situation is already the subject of some consideration and rulings.

 

 

 

 

11.In the present case, however, there does not appear to have been any accident. Rather, an employee (but not, apparently, a qualified solicitor or legal executive) of a firm of solicitors has, with deliberation, disclosed what, as I understand it, is prima facie privileged information. She did not, in fact, disclose it directly to the party on the other side. She disclosed it to the court itself. It was then the judge herself who, also with deliberation, disclosed it actually to the parties. The wife does not now possess this material as a result of an accident or mistake, or any underhand action by herself. She possesses it because the judge deliberately sent it to her. Further, we live in an era in which so-called “whistle blowing” is less frowned upon than it once was and in which, indeed, in many circumstances whistle blowing is now encouraged. But it is not difficult to see that if some employee of a firm of a solicitors can disclose what is otherwise prima facie privileged material, whether to the court or to the other side, the whole edifice of legal professional privilege might rapidly crumble. On the other hand, fraud is fraud, and my current understanding is that legal professional privilege cannot, in the end, withstand the unravelling of fraud or similar malpractices if (I stress if) they have taken place.

 

 

 

 

12.So, on my brief encounter with this case today, it provisionally seems to me that it raises new and grave issues in relation to one of the most cardinal areas of our law, namely legal professional privilege. For that reason, it seems to me, since, in any event, I cannot rule upon these issues today but must adjourn for the reasons which I have already given, that I should now direct that this difficult and interesting case is now considered at the highest possible level, namely that of the President of the Family Division.

 

Whilst, as referred to earlier, a Court can explore whether the legal professional privilege does not protect documents or information where there has been iniquity, if that’s something that can merely be taken into the hands of a whistle-blower, rather than following a judicial determination with argument and if need be evidence, then the issue of legal professional privilege becomes only as strong as the confidence a client has in those employees of the law firm working on the case.

Social worker on the naughty step


 

 

 

This is a decision of a Circuit Judge, so not binding, but illuminating as heck.

M and N (Children : Local authority gathering, preserving and disclosing evidence) [2018] EWFC 40 (1 June 2018)

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2018/40.html

 

It revolves around an investigation into a child who was two months old and how they sustained bruising to the neck and a fracture to the clavicle.

The social worker interviewed the parents, took handwritten notes and later produced a typed note. The LA case was that neither of the explanations for the injury offered by a parent (a trip and fall whilst carrying the child, or a bump in a car) accounted for the injuries, and the experts agreed.

 

On later enquiry within the care proceedings it emerged that the handwritten notes were used to produce that typed note two weeks later

 

 

  1. Social worker, (SW1), was charged with investigating the matter on behalf of the local authority. SW1 spoke with the mother on 22nd September when she was given the seatbelt explanation. On 25th September, the Monday, SW1 visited the parents’ home and met with the mother and the maternal grandmother. At this meeting, she was given specific details of the fall explanation. On 26th September, the following day, SW1 visited M at her school. Each of these meetings need further expansion but before doing so, I must comment on the way the meetings were recorded.

 

  1. During her evidence SW1 referred to her formal recording of the meetings which was set out in case notes and notes prepared for the purpose of the local authority section 47 report. Both sets are very similar as there was clearly a lot of copying and pasting from one to the other. Significantly, the formal notes were largely made up on 9th October, some two weeks after the meetings took place. When questioned by Miss Mallon about the potential for these notes being inaccurate because of the delay, the social worker was adamant that they were accurate as she relied on her memory, supported by her handwritten notes taken at the time. The cross-examination was highly relevant as there was a material dispute as to what was said during the meeting on the 25th.

 

The handwritten notes were duly requested and produced. Were they good? My good friends, they were not. Did they show an accurate record mapping clearly onto the typed version? My good friends, they did not.

 

 

  1. The handwritten notes had not previously been disclosed by the local authority and did not form part of the bundle. At the conclusion of SW1’s evidence, the court asked her if the notes existed and if they could be produced. It transpired the notes did exist and they were produced the following day and circulated. The contemporaneous notes comprised seven pages of handwritten material. It is difficult to overstate how unprofessionally prepared these notes were. They were largely undated, they failed accurately to recall who was present, much of the handwriting is illegible, they were in large part disjointed and had to be translated by SW1 who gave further evidence but despite their unsatisfactory condition, the notes were illuminating.

 

  1. Until the notes appeared, no plan of the living room of the family home had been prepared. The notes, however, contained a sketch plan of the room with a faint line which the social worker confirmed denoted the path M was taking when it was alleged that she had tripped falling on to N. The path is clearly towards N’s head and right shoulder. It is entirely consistent with the evidence given by the mother and the grandmother and suggests a graphic explanation for how M could have placed her knee on N’s right shoulder causing bruising to her neck but not to the remainder of her torso.

 

  1. The significance of this is twofold. Firstly, the fact that the mother was denied this crucial contemporaneous recording of what she said four days after the event was to deny her the opportunity of supporting her version of events with crucial evidence and left her to rely on her memory many weeks after the event. Secondly, it deprived the experts of corroborative evidence to explain how the neck could have been bruised but not the body.

 

  1. 16.             The handwritten notes contained a record of SW1’s meeting with M. They are as illegible and disjointed as the other notes but start with the words, “Naughty step”. SW1 was unable to explain why these words appear and could only speculate. The note contains a record of the child saying something and then correcting herself and concludes with the words, “Said never tripped/fell on to N/mat”.

 

  1. 17.             As a result of this meeting, it is claimed there is formal record supporting the local authority’s case that M has denied falling on to N. This has been taken up by the experts who have used this in support of their opinion that the event did not happen. This is not a criticism of the experts as they are entitled to assume M was interviewed in a professional manner. Unfortunately, she was not. During the social worker’s evidence she said that she had been ABE trained. If this is the case, I have grave reservations as to the quality and effectiveness of that training.

 

Ticket for one to the Burns unit please. Oh, that’s a deep burn.

 

 

Two tickets to the gun show

 

 

 

  1. On the third day of the five day hearing the local authority took stock of the evidence and, quite rightly, concluded that there was an unrealistic prospect of establishing threshold and asked the court for permission to withdraw its application. The court ordered the local authority to make its application formally by way of C2, supported by a child-in-need care plan. These have been filed and the children’s guardian has had the opportunity to consider the way forward.

 

 

 

  1. My analysis is as follows. If N had been injured by her seatbelt, she would have woken up and cried. She did not. It is medically implausible that this event caused the injury and, in my judgment, it did not.

 

  1. There is unanimity between the experts who attended court that N could have been injured in the way she was by M’s knee landing on her clavicle. I accept the evidence of the mother and the grandmother that this event occurred precisely as they say it did, that M was walking back to N who was lying on her changing mat, that M tripped, that M’s knee was the first part of her body to make contact with N and it did so directly on to her right clavicle. The break was caused by this mechanism. I am entirely satisfied that this was an unfortunate accident and that neither parent was in any way responsible for its occurrence.

 

  1. The local authority was right to apply for leave to withdraw its application but we now have a dreadful situation where both children have been separated from their mother and in N’s case her father’s unsupervised care for over six months. The parents have separated and it is unknown how much the stress of these proceedings has contributed to that. M, who we are told cannot understand why she has to live with her great grandmother, must now be told at some point and in the most sensitive way possible that the reason was because her parents had been accused of harming her sister when, in fact, the injury was actually caused by M herself. There is a significant amount of work to do to put this family back together again.

 

  1. The local authority has prepared a care plan and I am content that the care plan meets the children’s needs. Having considered the children’s welfare and in doing so having had regard to the welfare checklist, I am satisfied that it is in the best interests of both children for the proceedings to be withdrawn and give leave accordingly.

 

That’s all desperately sad – what a cost this family has paid for the failure of the social worker to properly record her notes, transcribe them accurately and grasp the importance of what was in them.

 

Judicial comment on gathering, preserving and disclosing evidence

 

  1. I cannot leave this case without making comment on the manner in which the local authority has conducted itself. I have three main areas of concern. Firstly, the gathering and recording of evidence by the social worker was, in my view, wholly inappropriate. The local authority was investigating an allegation of serious child abuse where it was thought possible that an 8-week-old baby had been seriously injured by one or other of the parents.

 

  1. 34.             In discharging its duties, the local authority could and should, in my view, have kept proper notes in a professional way which would have served as a coherent, contemporaneous record and this did not happen. To compound the problem, the notes were not made up into formal case notes until several weeks after the event, leaving much room for error caused by the inadequate contemporaneous notes and failing memory. If the local authority thought it appropriate to obtain evidence from a 4-year-old child, and it clearly did, it should have followed the ABE guidelines. Failure to do so renders any evidence obtained from the child to be of no value.

 

  1. Secondly, I have concerns over the failure of the local authority to present a full picture to the experts. If Dr. Elias-Jones had known the explanation given by the parents days after the event in the manner that it was given to the social worker, this would have changed his opinion. This is clear because when he did understand it, his opinion changed but unfortunately this was four and a half months after he filed his report. Dr. De Soysa in his report dated 27th September, which will have been read by the other experts, reports:

 

“SW1 had interviewed M with regard to this incident. SW1 informed me that M had no recollection of this event.”

 

  1. There is reasonable scepticism as to whether a 4-year-old should have been interviewed at all. However, if she had been interviewed appropriately, and by that I mean in accordance with the ABE guidelines, the outcome may have been very different. It may be that she would have given an accurate account of events which would have meant this whole case could have lasted days rather than six months. One can only speculate. In any event, to have given an account of events of what M said was, in my judgment, irresponsible as the experts could not be expected to question the basis upon which this information had been obtained.

 

  1. My third and final area of concern is on the matter as to whether the parents and the children have had the benefit of natural justice in this case and thereby whether their Article 6 rights have been breached by a local authority which is, of course, an instrument of the State. These proceedings are borne out of a serious allegation of child abuse which, if found, would have had a profound effect upon the parents and the way they would be able to care for their children in the future.

 

  1. 38.             I have already given my comment upon my interpretation of the local authority’s duty of care on gathering evidence but I feel obliged to comment on the local authority’s failure to disclose material evidence in advance of being required to do so during the final hearing. It is clear that the content of the social worker’s contemporaneous notes was material in securing the sea‑change in the professional opinion of Dr. Elias-Jones. The parents should not be expected to have to go on a search to obtain such important evidence which supports their case.

 

  1. 39.             The local authority should have made this evidence available to the parents and their advisors at the earliest opportunity. It is again speculation as to what effect this would have had on the length these proceedings have taken but it is, in my judgment, worth speculating. For the future, the comments I have made highlight, in my view, that there may be significant areas for improvement in the training the local authority gives to its social workers, particularly in the areas of gathering, preserving and disclosing evidence in care proceedings

 

If you’re a social worker, now would be a very good time to find your handwritten notes, and have a serious hard look at whether the typed ones capture everything.  If you’re a local authority lawyer, ask your social worker on any NAI/CSA case to let you have their handwritten notes. If you’re a parent solicitor or representing a Guardian, ask for those notes.

 

Making Special Guardianship Order before child has lived with prospective carers

This Court of Appeal decision raises a number of interesting and important issues.

(It doesn’t have anything amusing in it or any 80s references, but you can’t have it all.  If you want, you can momentarily imagine that this is some litigation involving Barry Chuckle and Jimmy Krankie having a dispute as to who gets custody of a tiny hedgehog in a hat and that the key pieces of evidence involve (i) Jean Claude Van Damme doing the splits in the witness box (ii) how many ferrets Fred Dineage can pop down his trousers and (iii) the enduring mystery of exactly how much smack Zammo Maguire hoped to obtain by stealing and pawning Roland Browning’s alarm clock, thus making Roland late for an exam.  It  has none of this.  I remain on the lookout for such a case)

 

P-S (Children) [2018] EWCA Civ 1407 (18 June 2018)

http://www.bailii.org/ew/cases/EWCA/Civ/2018/1407.html

 

Essentially, the Court at first instance, was invited by the LA and the Guardian to make Special Guardianship Orders to grandparents for two children – S aged 2 and P aged 5. The parents were seeking the return of the children to their care – it had been a FDAC (Family Drug and Alcohol Court) case and the parents had withdrawn from that process – the judgment does not deal much with the parents case, as it was not the subject of the appeal.

 

[The parents had withdrawn from the Court process, thus at final hearing it was only the Local Authority and the Guardian playing an active part, both of whom supported the making of SGOs]

 

The Court declined to make Special Guardianship Orders, in part relying on a letter circulated by Keehan J to Judges on the Midlands Circuit to the effect that

“a special guardianship order should not be made, absent compelling and cogent reasons, until the child has lived for an appreciable period with the prospective special guardians.”

 

The Court instead made a full Care Order – in effect deciding that the Local Authority, in consultation with the grandparents, should decide the point at which the case should come back before the Court with an application for a Special Guardianship Order. That also, in effect, envisaged the Care Order being a short-term order, rather than the permanent or long-term order that it is commonly viewed as.

 

The Court of Appeal judgment deals with a number of issues :-

 

  1. The need for solid evidence-based research about whether SGOs being made before a trial placement are a beneficial or adverse approach
  2. The status of the guidance given by Keehan J – and the representations made to the effect that it was being followed by the Courts in the Midlands circuit as though it were binding upon them
  3. What role prospective Special Guardians should play in the Court process
  4. What approach the Court should take, where potential suitable carers come forward late in the process.

 

All of this is useful.

 

 

 

  1. There are three strands to the errors that all represented parties before this court identify in the family court’s decision: a) the lack of any adequate reasoning for making care orders rather than interim care orders or special guardianship orders, b) the reliance of the judge on informal guidance that was neither approved guidance nor peer reviewed research capable of being scrutinised or challenged by the parties and c) procedural unfairness. I shall take each in turn. The court is mindful of the fact that each of the represented parties before it (except S’s father) have taken the same position in respect of each issue and accordingly the court has tested with the interveners each of the propositions in respect of which they would otherwise have reached a consensus.

 

 

 

  1. The propositions about which there is a large measure of agreement are as follows:

 

 

 

 

  1. The judge was wrong to make care orders: no party who was present supported the making of the same and on the merits and in particular having regard to the un-contradicted special guardianship assessments, the care orders were disproportionate;

 

  1. b. The judge’s characterisation of the care orders that were made as ‘short term care orders’ was wrong in principle given that there is no statutory mechanism for the making of time limited care orders or orders that will be discharged on the happening of an event, including the expiration of time;

 

  1. The judge was wrong to rely upon the extra-judicial guidance of Keehan J to the effect that children should live with proposed special guardians for a period of time before a court entertains an application for an SGO;

 

  1. The judge was wrong not to make provision for effective access to justice for the grandparents by their joinder, the disclosure of documents to them, time for advice to be taken by them, the facility for them to take a proper part in the proceedings, an adjournment or otherwise.

 

  1. It is helpful to trace the judge’s reasoning by setting out how he came to his conclusion in his judgment. The following extracts are sufficient:

 

 

 

 

 

“1….It is not a case in which I must consider rival realistic options in terms of the children’s future placements. Instead, the main question for me to resolve is the appropriate legal order which should govern a placement with the children’s respective paternal grandparents……

 

 

7.…the local authority and the Guardian contend that the children’s placements should take place under special guardianship orders………During the trial it has largely been left to me to raise concerns as to whether special guardianship orders in favour of the two sets of grandparents would be premature…….

 

 

  1. In this case the children might be placed with the paternal grandparents under either a care order, a special guardianship order, or a child arrangements order. These are very different orders. A care order creates parental responsibility in the local authority which, under section 33(4) of the Act may be exercised by the local authority if they are “satisfied that it is necessary to do so in order to safeguard or promote the child’s welfare”…….

 

 

  1. Section 14A provides for those who may make an application for a special guardianship order…….the grandparents come within the definition of those who may apply for a special guardianship order.

 

 

  1. There is also a power for a court to make a special guardianship order of the court’s own motion. That power is found at section 14A(6)(b).

 

 

  1. ……It suffices to say that during my time as designated family judge here at the Central Family Court I must have made upwards of 30 special guardianship orders. I have, however, yet to encounter an application for such an order. On every occasion I have been invited by the local authority, whether opposed by another party or unopposed, to make the order of my own motion. That is not just the default position, but it appears to be the universal practice amongst authorities who use this court centre. This is the largest family court centre in England…….My purely personal impression is that the practice has changed in recent times.

 

 

  1. Whilst I do not suggest that these children should be the subject of care orders for their minority, the real balance in the case is in my judgment between special guardianship orders now and care orders (although not interim orders). The care plan under such care orders would be that if all goes well, then applications for special guardianship orders should follow in due course. By the expression ‘in due course’ I mean ‘when the new placements are regarded as settled and working well for the children’. In this case that might perhaps be in about a year from now…….

 

 

  1. ……both sets of grandparents have been assessed in accordance with the Statute and the accompanying Regulations. The assessments are positive……

 

 

  1. My first concern is, however, that neither child is currently living with the proposed special guardians. During the course of argument, I mentioned that, last year, a letter had been written to interested parties by Keehan J, the Family Division Liaison Judge for the Midlands Circuit. It discussed the use of special guardianship orders. The view promulgated by Keehan J, as a result of a meeting with the chairs of the Circuit’s Local Family Justice Boards, was that “a special guardianship order should not be made, absent compelling and cogent reasons, until the child has lived for an appreciable period with the prospective special guardians.” Such guidance is not, of course, binding upon me but in passing I observe, with some deference, that it appears to amount to sound common sense……

 

 

  1. All this leads me to believe that someone has to be in charge of a process which oversees not just the move of the children to a new home, and their settling in, but also the implementation and progression of a closely controlled contact regime in circumstances where it is unclear what the parents’ reaction will be to the children’s move and equally unclear as to how they will handle time with the children in the very different circumstances which would apply……

 

 

  1. 30. The next matter which concerns me is the position of the grandparents – within these proceedings as well as towards the children. As I listened to the case being developed, I did so in the complete absence of the grandparents – of the proposed special guardians. They were not parties. They were not represented. They were not present. They were not intended to be witnesses. Had an application been made – properly sponsored by the local authority which after all is the prime mover in this change to the children’s lives – then the grandparents would have been parties, represented, present and witnesses……

 

 

31 ….I have had the conduct of this case since the IRH on 3 February 2017. I could then have (i) made the grandparents parties (although that would not necessarily have secured representation for them); (ii) asked them to file a statement; (iii) invited them to give evidence; (iv) encouraged a special guardianship application at that stage. I did not take any of these steps, nor was I invited to do so……In truth, however, with the exception of my concerns surrounding their lack of participation in the process, the grounds on which I propose to reject the local authority case for special guardianship orders would have remained whatever step had been taken at the IRH. I know a great deal about the grandparents. I am not making special guardianship orders, but it is not because I lack information about the proposed special guardians.

 

 

  1. I invited the grandparents into court before they spoke to the professionals (all of whom were of course advocating special guardianship) so that at least they could hear the guardian, the representatives and myself debating the issues as the guardian gave evidence. They spoke with professionals afterwards. The result of this exercise was that they confirmed their wish to be special guardians immediately and for the children not to be subject to care orders…….I remain concerned, however, as to the process here. I am not convinced that the grandparents have been sufficiently involved. It is stating the obvious to observe that the effect of making an application to a court is to involve the applicants closely in the process.

 

 

  1. A short-term care order meets many of the concerns expressed in the previous paragraphs…..It is common ground that the transfer of the children to the grandparents, which is happening as I write this judgment, will not be delayed for want of special guardianship orders, or by any further assessment process.

 

 

  1. ……There would remain untested placements.

 

 

  1. ……the Guardian…….emphasised that “there was enough of a relationship that it is not an impediment to a special guardianship order…….”

 

 

The Court of Appeal considered this carefully

 

 

 

16.It is evident that the judge recognised that the only realistic placement options that he had were with the paternal grandparents. His concern was the viability of those placements: not because they were unassessed but because they were untested in the specific context of the possible interference with them by the children’s mother and the father of S. It was in that context that on the merits the judge wanted to be assured that the control and parental responsibility which vests in special guardians would be sufficient to manage the relationship with the parents. The alternative was control and parental responsibility being vested in the local authority through care orders. The problem to be solved was whether the relationships and capabilities of the grandparents were strong enough or needed to be supported and tested before SGOs were made.

 

 

 

  1. The solution to the problem was in the choice of order: SGO, care order or interim care order and an adjournment. The route to the solution lay in an evaluation of the evidence including oral evidence from professional witnesses, the parents and the proposed carers i.e. the paternal grandparents. It is clear from the judgment and from a transcript of the judge’s discussions with the advocates during the hearing that the judge had the problem and the solutions in mind. What was missing was a route to the preferred solution. Having identified the problem and the range of solutions the judge did not go on to evaluate that evidence. That necessarily meant that the propositions advanced in the discussion and the conclusions reached in the judgment take the form of assumptions that were not reasoned and which are now challenged.

 

 

 

 

 

 

  1. As I remarked at [16] and [17] it was the absence of any testing of the assumptions raised in discussion which created the problem with which this court now has to grapple. The judge was concerned about the relationship between the grandparents and each of the children in the context of continuing discord with the mother and the father of S. It is also right to note that it was not until the commencement of the appeal before this court that the special guardianship support plans were agreed between the local authority and the grandparents. The judge identified what were potentially adverse factors to balance against the positive factors in the special guardianship assessments which might lead to the conclusion that a trial placement of the children was required before vesting parental responsibility and control in the grandparents. That deserved more than a cursory analysis not least because the local authority and the children’s guardian had come to a clear and agreed contrary opinion on the basis of rigorous assessment material that apparently demonstrated that the positives outweighed the negatives.

 

 

 

  1. In order to test the assumptions the judge had described in his discussion with the advocates, he could have heard evidence about them and from that drawn conclusions. The judge records in his judgment that he heard some oral evidence but it is plain from his judgment that such evidence as there was either did not touch on the issues that he was raising or was unhelpful. That may be unsurprising given that the local authority and the children’s guardian disagreed with the judge and were agreed among themselves and also that no advocate was pursuing the issues the judge wanted to pursue. In that circumstance, as inquisitorial tribunals know, there must be an enhanced caution in a judge not to ‘simply’ rely on his or her own pre-conceptions or opinions and to ensure that as provisional conclusions are formed in judgment they are adequately tested so that they are soundly based on evidential conclusions.

 

 

 

  1. It would also have been legitimate, if properly reasoned, for the judge to conclude that he needed more evidence with the consequence that the time for the proceedings might need to have been extended. In order to come to either conclusion the judge needed to identify the risk that he sought to protect the children against and reason the options that were open to him on the evidence. He ought to have tested his own assumptions and the opinions of the professional witnesses in oral evidence and by hearing evidence from the paternal grandparents. He would have been assisted by evidence from the mother and the father of S but, as has sadly been the case more than once in these proceedings, they had absented themselves and the judge was left with a history from which only inferences could be drawn. Had the judge reasoned his concerns on the evidence he would have had a proper basis for conducting an evaluation of the benefits and detriments of each order that was available to him.

 

 

 

  1. In that context, it is not surprising that the judge’s evaluation of the merits of each option and the available orders was incomplete. The judge agreed with the parties that a child arrangements order was not in the interests of either child and he was right to do so on the merits. No-one pursues that option before this court. That left SGOs, full care orders and interim care orders with an adjournment.

 

 

 

  1. I agree with the paternal grandparents of S that if and in so far as the judge needed more time to ensure that the relationship of the grandparents with the child and the parents was such that it was in the interests of each child to make an SGO, that could, if reasoned, have been an appropriate basis upon which to adjourn the proceedings