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

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

Cumbria County Council v KW 2016

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

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

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

 

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

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

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

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

 

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

 

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

 

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

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

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

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

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

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

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

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

 

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

 

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

 

 

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

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

33 responses

  1. ashamedtobebritish

    I hate this … “specifically for mother to have the chance to reflect and potentially make admissions that would reduce the risks to a manageable level”

    So many parents admit to things they haven’t done just to keep their children, what sort of society do we live in?

    • The TIP of the ICEBERG
      Children of UMARRIED Parents have their name changed from birth certified name, to Christian name, followed by fathers surname, followed by mothers surname throughout the court and used on court orders for evidence to be submitted to court, this is obviously refused by all stating they have no evidence of a child in that name whilst they have evidence in the childs birth certified name, the order has no legality for them to allow it for court proceedings
      Answer to your second paragraph, That is exactly the option, only alternative allowed in court, but wrong in assuming they keep their children, they deem themselves as proven speakers of untruths, for them to admit just ups the fact the court and proceedings were correct, in the first place

      • “The TIP of the ICEBERG
        Children of UMARRIED Parents have their name changed from birth certified name, to Christian name, followed by fathers surname, followed by mothers surname throughout the court and used on court orders for evidence to be submitted to court, this is obviously refused by all stating they have no evidence of a child in that name whilst they have evidence in the childs birth certified name, the order has no legality for them to allow it for court proceedings”

        I must be missing something, what relevance is this to the post?

  2. ashamedtobebritish

    Here’s an interesting read, I’d like to know who the British doctors are

    http://innocenceproject.olemiss.edu/new-research-has-doctors-doubting-shaken-baby-syndrome-science/

    • I could probably name them. It is quite a long-running debate as to just how much trauma is required to cause these injuries, and in particular whether the existence of one bleed makes it easier for a second (more serious one) to occur.

      Always have to be slightly careful with American Court experts, on either side of a debate. Unlike the UK, the American legal system actively supports and encourages the hired gun approach, so there can be an issue over a Court expert who plants themselves firmly on one side of the debate as to whether they really hold those views or whether they have established that there’s money in being “The Guy for the Prosecution/defence to use on X type of case”

      Particularly when they start giving press interviews.

      (American academic research, I’m less nervous about)

  3. @helensparkles2015
    When these cases are made in the name of a child that does not exist/never existed where is the justice for the child, how can parents get justice when the true facts are covered-up when orders in the wrong childs name are not worth the paper they are written on, how can possibility and probability accussations made on a ficticous child over-rule the hidden/refused evidence held by organisations due to a false childs name allowing them to keep it covered-up

    • Still not sure that has any relevance to this post? So must be something you think happens that you are not happy about. The big name change scandal has been mentioned as a conspiracy to conceal elsewhere on this blog. In my experience, name changes are nearly always for safety so not used that often, or because a relationship has ended and it is in the interests of the children as in Poppi W’s siblings by way of an example.

      I can only say that i have been able to secure all documents in relation to a very high risk case where an alias was used, as were all those who were party to the proceedings, except the person who was the risk (they were in prison having been convicted if that helps you). I see no reason why this would be a problem for other professionals. I would need a lawyer to comment on orders and how this works in the course of justice.

      Name changes are not routine, they are in the interests of children, and usually agreed with the court. Therefore, should a document be in another name, the court will know both, and that both names exist as does the child.

      • Orders can only be executed in the NAME of child stated on them, a childs name is not open to either,possibly or close name to

      • My Grandson was 6weeks old with a legal right to a birth certified name, the contempt of court letter was sent prior to any court case, had they had evidence to support, it would have been the first point brought to the judges attention, but then the judge would have brought up the circumstances, which was his Cerebral Atrophy damage at birth, that they wanted to keep covered-up and managed to do with threats of you will never see your baby again

      • I was just saying I didn’t think it had much to do with this post. But if you think it does, that’s fine.

      • ashamedtobebritish

        That was really patronising and condescending

      • Not sure why you would think that, just wanted you to explain what it had to do with the post?

    • I think unless this case gets published, with a bailii link, it is virtually impossible for those who weren’t involved in the case to really follow what is said to have happened in it.

      • I am the grandmother of birth registered child initials RJB, I and grandfather attended birth hospital within 20-30 minutes of birth, informed, birth had not gone well, transferred to 2nd hospital within 1/2hr (sat morning) discharged Monday morning (no information) 1. He had no sucking reflex 2) Cat like Cry 3) Constant wringing of fists 4) Constant sticky eyes condition Referred to family Child Clinic for head measurement, Head circumference small, head not growing to be referred back to hospital of birth 5) Skin eczema 6) head jerking back spasms
        It was the awaiting hospital appointment and head jerking spasms getting worse and more dangerous, he was referred back to the hospital (local GP) to be met by a neuro radiologist to be examined, then his transfer after being informed a condition Cerebral Atrophy (Frontal Brain too far back from front of skull (CT Scan) and MRI would be better confirm
        No MRI taken discharged 24hrs later after interview (parents with hospital social workers) who hoped to be involved with R’s Cerebral Atrophy case, 4days later after handing family GP unopened dis-charge letter R called back to hospital, later to receive solicitors letter with R was admitted to first hospital with accident detail mother went to fridge to get babies bottle, hit babies head on fridge door, obviously a different childs admission details, from first hospital wrongly following him to the second hospital, all covered-up by change of Rs name, and paid for reports (which is evidenced in QC Focke’s court file, which he handed to me R’s grandmother) All this evidence was never aired in any court, even though we were represented by the same solicitors firm throughout the case, they knew my grandson was never admitted to the hospital with fall to the kitchen floor or any accident whatsoever only investigation for brain damage

    • This is true, we have said before there is not enough in the public domain, would be helpful for this judgement to be published to identify mistakes made or disabuse conspiracy.

      • The above is exactly as it was investigated by Cleveland Police and my grandson presented to the police officers to confirm all above, their investigation ended parents under arrest only, released UNCONDITIONALLY, verbally to us, they did not know what RCLA would get up to?????????

  4. The case stands in the court of appeal to date, split case joined, in the False Name of child no further appeal allowed to change childs name
    http://www.bailli.org/ew/cases/EWCA/CIV/1997/2190.html
    After Judge Cazalats case RCLA even though we were self representative would not discuss the case unless there was admittance by either parents or grandparents to injuring R
    May 03rd 2000 we Grandparents and father were taken before Judge Cazalat to investigate how we had found out the whereabouts of R’s adoption placement and new doctor, and put a
    injunction on us, it was in this court Judge Cazalat realised the case and who we were, he stopped the case for approx. 2hrs, On return he stated he remembered us the family from appearing before him earlier and stated he wanted the court to know, we the family including the mother by name that we were one of the most honest families to ever come before him and asked What could he now do? to which I grandmother what can you do? and answered my own question, All we can now do is sue RCLA to which he nodded in agreement and asked us not to upset R’s adoption placement
    This is were we are at trapped within legal back at the court of appeal

    • The link doesn’t work and when I read the judgement that the link did work for, it was very clear that judge thought the parents were responsible for an injury. Apart from that, it isn’t possible to comment on your case because not all the details are in the public domain. Your post above sounds like mistaken identity rather than a cover up and one would hope that wasn’t possible. I shall look forward to hearing the outcome.

  5. The suing case has been aired in Middlesbrough Open Court the Barrister representing RCLA
    relied on when the parents of a child are not married they are allowed to use both surnames for child for identification that the parents of the child were not married, I presented the (supposed 8 MAN DOCTORS REPORT SIGNED BY 2 DOCTORS)

  6. The dilemma presented by this case is not that unusual and I support the non-judgemental approach. It is usually better to understand and learn from events than to point the finger of blame.

    Social workers have developed some interesting ideas about how to work with cases where professionals have every reason to suspect abuse but there is parental denial. Much depends on whether it is possible to engage the parents in constructive work. I have been very impressed with the approach described in the book: Working with ‘Denied’ Child Abuse: the Resolutions Approach by Andrew Turnell and Susie Essex.

    • Yes, it is a real shame that the pioneering Resolution approach which can be so useful and effective was not recognised and valued by the Legal Aid Agency, who slashed the amount that they would pay for this sort of assessment to a point where it would not be economically viable. I’ve had some really excellent reports from Resolution – reports that changed the course of cases and kept families together who would otherwise have been separated permanently.

      • I thought that the Resolutions approach had evolved into something that social workers now call the Signs of Safety model and local authorities are investing considerable resources into this way of working. Perhaps the money for the training and support to social workers should come from a charity such as the NSPCC? I find it difficult to understand why the Legal Aid Agency was asked to support Resolutions – as it was far more than a mediation service.

      • Yes, Signs of Safety is built on that model.

      • NOTINMYNAME you are doing yourself no favours in your ongoing case if you continue to post about ignoring a contempt of court notice and going against medical advice, particularly if you are trying to sue others for poor decision making.

      • Hilary, not sure why LAs would need NSPCC to run training? In house training means on-going practice support and universal adoption in all branches of children’s services which with which is v effective in my LA.

      • Helen, it’s just an idea. Cumbria children’s services is a failing service undergoing DfE intervention and Nicky Morgan is looking to charities such as the NSPCC for help with raising standards of social work practice.

        I made this suggestion because the NSPCC have knowledge and experience – they pioneered Resolutions in Bristol and have researched Signs of Safety. The comments by the judge about the handling of this case suggest that Cumbria jumped the gun by applying for a Special Guardianship Order for the two children to live with their grandparents instead of ‘a full exploration of the potential for them to live with their parents’. It does not seem like an authority that uses the Signs of Safety model. The NSPCC might be able to offer assistance to this and any other authority that is struggling to raise standards.

    • ashamedtobebritish

      That would be ideal if it worked, how many times do we hear “Lessons will be learned” only for it to happen over and over, yes those making life changing decisions do deserve the finger to be pointed at them, it’s out of control and no one is stopping them.

      I’d really like to see courses in abuse denial, having come across it many times, it makes things very difficult when one has to consider the child rather than the parent, who has a voice, however, I am definitely coming across more and more parents who have definitely done nothing wrong, their children either in LTFC or adopted, yet when it is proved categorically that they are innocent, they still can’t have their children home, that is gross unfairness to the entire family, who’s lives are shattered forever.

      I often find parents who had no mental health issues, develop them once the local authority have finished with them, hardly surprising considering some of the accusations, twisting of the truth and blatant lies, but that is then used against the parent to keep the child anyway. Social Engineering.

      Then we have the crystal ball predictions of ‘risk of future harm’ how can abuse denial come into play there? Especially in first time parents, they cannot possibly know if they will be abusers or not, the general consensus that the abused will become an abuser or they got caught shoplifting, or doing drugs 20 years ago is out dated and frankly ridiculous.

      Everyone has skeletons in their closet and it’s time we were tolerant to diverse parenting, forgetting the past and focusing on the person in front of us now, instead of digging around trying to find something because they have nothing.

      • The Legal representation in my Grandsons case lacked impartiality
        The local authority had an outside firm of solicitors representing their family court cases Askew & Askew Mr Peter Medd (Redcar) the guardian had a solicitor
        Kathy Webb Askew & Askew (Guisbrough)
        I still have a threatening letter (contempt of court) if I did not cease to find outside help for my Grandson. I had to underhandedly approach a Charity that supplied us with a massaging video which they recommended for children with Cerebral Atrophy/Palsey instead of having watch him stiffen daily in the foetal position, with the support of carers brother/sister in law, knowing time was short 24/7 massaging, the difference daily was amazing. his jerking spasms slowed, it was amazing

      • Can’t continue to talk about the case here if you have been warned about contempt of Court. Sorry.

  7. Thank you for at least allowing our story to be aired, to at least try to put your mind at rest, our legal case having now been heard in ‘Open Court, is now in the public domain, Thanks again

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