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You would think this would go without saying… but it has been said

 

Section 91 of the Children Act 1989 says this

(1)The making of a child arrangements order with respect to the living arrangements of a child who is the subject of a care order discharges the care order.

 

and

 

(2)The making of a care order with respect to a child who is the subject of any section 8 order discharges that order.

 

(A child arrangements order with respect to living arrangements – residence in old money, ‘custody’ in Daily Mail/Eastenders parlance is a section 8 order)

 

So in plain language – if you have a residence order and you then make a care order, the residence order is discharged. If you have a care order and you make a residence order, the care order is discharged.  If one exists, the other dissolves into nothingness.  You can either have your cake, or you can eat it – you can’t both eat it and have it.

There is no Schroedinger’s Cat scenario where the child arrangements order and care order simultaneously exist *

 

(*theoretically this is POSSIBLE, but only in a universe where it is possible for a Judge to announce that there is a care order at exactly the same pico second as announcing there is a child arrangements order so they are both birthed at exactly the same instant and thus neither one of them predates the other or succeeds the other and thus neither one cancels the other out.  It will not astound you to know that the Court in this case did not manage to achieve pico second delivery of a decision. )

 

It’s therefore

(a) surprising that the Magistrates in this case made both a Care Order AND a child arrangements order

(b) not surprising that they were appealed

(c) blindingly obvious that the appeal was successful

 

This is such an obvious interpretation of section 91 that it is more than a little surprising that anyone even tried to defend the position, but such is sometimes the role of a lawyer instructed to oppose an appeal.

It was an attempt, based on the wording of section 9

 

9(1)No court shall make any section 8 order, other than a child arrangements order to which subsection (6B) applies, with respect to a child who is in the care of a local authority.

 

(section 6B being a live with order, or residence in old money)

 

Aha, argues dad’s lawyer, section 9 says that the Court CAN make a lives with child arrangements order whilst there’s a care order.

And indeed it can, and this is something that does happen.

You just then go to section 91 to see what the effect of that is, that the care order then dissolves. You can’t have both at the same time.  Can’t eat your cake and have it. One or the other.

 

A large part of me just thinks that this appeal is blindingly obvious and that nobody needed to know the answer to this question, because the Act is so clear, but obviously I’m wrong because the error was made. Hopefully nobody will do it again.

 

Re X and Y (appeal against care order) 2018

http://www.bailii.org/ew/cases/EWFC/OJ/2018/B55.html

(I note also that whichever Judge heard this appeal from the Magistrates and published it, they didn’t choose to identify themselves…)

 

  1. Mr Powell argues that s 9 of the Children Act 1989 including the explanatory notes, makes no reference to s 91 impacting on its operation, and that s 9 does not say it is subject to s 91. He argues that s 9 (1) permits the two orders to sit alongside each other, as its terms are unambiguous and it carves out an exception to s 91. He points out that there is no explanatory note in the Family Court Practice 2018 that deals with this matter. He argues that the context of where s 9 sits in the scheme of the Children Act 1989 is important, as it is that it appears under the heading ‘Restrictions on making section 8 orders.’  Mr Powell argues: why have that if it is not to carve out an exception? He argues that this was a deliberate attempt by the legislature to carve out an exception to the general rule under the Children Act.

 

  1. Mr Laing supports the appeal. In his written submissions, he sets out the legal framework. I agree with his reasoning, both as to the correct statutory interpretation and its effect. It is a reading that is supported by the authors of Hershman and McFarlane and Clarke, Hall & Morrison . Mr Laing correctly sets out that: the only form of child arrangements order that can be made where a care order is in force is a “lives with” child arrangements order (s 9 (1) and (6B) of the Children Act 1989); the making of a “lives with” child arrangements order discharges a care order (s 91 (1)); and, the making of a care order discharges a “lives with” child arrangements order (s 91 (2)).

 

  1. Mr Laing also draws my attention to the ruling of in Booth J Hounslow Borough Council v A [1993] 1 FLR 702, where it was held,

 

A care order itself automatically discharges any residence order that might be existing in respect of the child at the time the order is made. As Miss Hudson submitted before me, a residence order and a care order are two orders which are incompatible. They cannot both stand together. A residence order is clearly inconsistent with a care order and vice versa” , at 706 .

 

  1. Mr Laing argues that the position has been the same since s 91 of the Children Act 1989 first came into force on 14 October 1991, and has remained the case throughout the eight iterations of section 91 since then.

 

  1. Mr Laing submits that there are good public policy reasons for that. [Generally], no order under s 8 of the Children Act 1989 can stand alongside a care order for a simple reason: once a care order is made, it is not for a court to interfere with a local authority’s exercise of parental responsibility, save for as permitted within the framework of public law proceedings.

 

  1. I agree. I find that, in error, the lay justices conflated the jurisdiction they had to make a “lives with” child arrangements order with the effect of the making of that order. Whilst they had jurisdiction to make the order, the effect is to discharge the care order, which they clearly did not intend.

 

  1. Their decision was therefore wrong. I allow the appeal and set aside para 16.2, i.e. the “lives with” component of the order d. 22 June 2018.
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Tense – nervous, headache

 

This is a case in which the Court of Appeal unpicked a decision of a Circuit Judge, where the tenses that were applicable to the threshold criteria became confused.

 

I don’t myself much care for the way that the constructors of section 31 brought tenses into the definition, particularly because they involve some semantic dancing on the head of a pin to the way that people actually consider the threshold in practice. I wrote earlier this year about the Court of Appeal decision that largely turned on the common conflation of ‘is suffering’ (which is what the statute says) and ‘has suffered’ (which is what everyone in Court always says, largely because you are talking about something that inevitably happened in the past but having to do so in the present tense) . In that case, having lectured everyone on the need to stick to the language of the statute ‘is suffering’, the Court of Appeal forgot its own advice and talked frequently about ‘has suffered’

 

Hence the title, and by now, you could probably do with an Anadin yourself

 

 

 

Re K (A child : Threshold findings) 2018

 

http://www.bailii.org/ew/cases/EWCA/Civ/2018/2044.html

 

  1. On 18 May 2018 HHJ Tolson QC sitting at the Central Family Court dismissed an application for a care order and instead made a private law order that a little girl, then aged six months, to whom I shall refer as K, should live with her mother. The basis for this outcome was that the judge found that the threshold for intervention under section 31 of the Children Act 1989 had not been made out. This appeal by K’s children’s guardian, for which I gave permission on 17 July, is supported by the local authority but opposed by the mother.
  2. Events since the making of the judge’s order have led to this appeal becoming historic. The local authority issued further proceedings on 14 August, and on 23 August K was removed from her mother’s care and placed in foster care under an interim care order. The outcome of these earlier proceedings is nevertheless of some significance as providing a baseline for future decisions. In the circumstances I describe the background in only the broadest detail and avoid making any observations that might bear on welfare decisions yet to be taken by the Family Court.

 

One might well think that a Judge who had decided that there was no likelihood of future harm for a child is on thin ice before the Court of Appeal when the appeal arrives and the likelihood of future harm has developed into actual harm leading the child to have to be removed.  That could just be bad luck, of course.

 

  1. The evidence that the judge heard showed that the mother had done reasonably well in the foster placement and that no harm had come to K since her birth. Nonetheless, when the matter came before the court for final hearing on 23 April, all parties invited the judge to adjourn to allow for further expert evidence and the assessment of other potential carers. The judge refused this application as well as other adjournment applications made during the hearing. He said in effect that he would “see where we go”. His approach led to uncertainty in the minds of the parties as to what was and what was not within the scope of the hearing. That approach is challenged in the grounds of appeal, but the parties are agreed, rightly in my view, that it is no longer necessary to investigate that aspect of the matter.
  2. In the course of his judgment the judge described the mother as having been a deeply troubled teenager. He considered the report of an independent social worker who had acknowledged the mother’s ability to look after K’s basic care in a highly supported environment but gave the opinion that her volatility would prevent her from giving safe, consistent and nurturing care in the community. That was also the opinion of the allocated social worker and of the guardian, who advised that K would not be safe if placed in her mother’s independent care. The psychiatric expert initially expressed cautious optimism but tempered this when she received the other professional opinions. The judge however did not accept this evidence, essentially on the basis of the mother’s performance since K was born. He emphasised that the language of “risks” and “concerns” was not good enough. He was impressed by the mother’s presentation in court. The judge found and was entitled to find that the mother had not been volatile around or towards K. He posed this question to himself:
    1. “Accordingly in my judgment the question whether, when the mother was first placed in the mother and baby foster placement, she was likely to be volatile around her own child has to be judged in large manner by her actual behaviour around [K]. There is no evidence that she is anything other than calm when around [K]. There have been no incidents with the foster carer despite the latter’s, as the professionals say, too-intrusive approach.”

He concluded that while there was reason to believe that the threshold was crossed at an interim stage when the proceedings began, “My judgment on this evidence is that there neither is nor was a likelihood of significant harm to this child”. He continued:

“The possibility, which I acknowledge exists, that the mother will be so volatile in future that he daughter suffers significant emotional harm is one in my judgment which can sensibly be ignored in the context of the threshold justifying state intervention. This, I emphasise, is not to say that the professionals are wrong. I can of course acknowledge that we may be back in court in months’ or even years’ time with the professionals telling me that I was the one who got it wrong. I hope I can profoundly respect their opinion. It is simply the case that on this evidence I cannot be satisfied that the ‘risks’ and ‘ concerns’ which they identify establish the necessary likelihood.”

 

 

The judicial conclusion that the case did not warrant or justify adoption or separation was not the subject of the appeal. The appeal focussed on whether the Judge was wrong in law to conclude that threshold was not crossed and whether he made two separate errors – the first, in considering the likelihood of significant harm to be based on the facts as they were at the time of the final hearing rather than at the date of issue/intervention, and second in tying together the issue of whether threshold was crossed and what the welfare decisions for the child should be.  (In effect, whilst a Judge HAS to take the harm into account when deciding the right order, he or she ought not to take into account what the plans for the child might be when making the factual decision as to whether threshold is met)

 

The first of these is interesting. It does seem to fly in the face of common sense – if a Court is deciding whether to make an order on the basis of future harm, surely they look at the facts as they present at the time of making the order? Well, yes and no.  That’s massively relevant when deciding whether to MAKE the order, but not at all relevant in deciding whether the threshold criteria were met at the time of issue.  The threshold issue is a purely factual analysis, and the welfare issue is balancing up all of the facts and deciding whether an order is proportionate, necessary and better for the child than making no order.

 

In bald terms – if a mother is misusing heroin before the baby is born, then that is a fact which can satisfy the threshold at the time of issue and meet the threshold criteria for making a final order. But the mother being abstinent for six months of the proceedings, having insight into the problems heroin caused her and working hard with support groups is a massive factor in whether an order is needed at all, and if so, what sort of order should be made.

 

(Think of threshold as being whether you get into a nightclub at all, and welfare as being the range of options available to you once you are in there – you can get drunk, dance, flirt with people, get into a quarrel, or leave having had an uneventful evening)

 

  1. On behalf of K’s guardian, Ms Porter argues that the judge was wrong to limit his consideration of the threshold to the mother’s direct behaviour towards K. Instead he should have looked at the wider context, as required by section 31. She next argues that he paid insufficient attention to the relevant date for consideration of the threshold, namely the time when protective action was taken. Lastly, he allowed the issues of threshold and welfare outcome to become entangled, repeatedly referring while considering the issue of threshold to the need for rigorous scrutiny of the option of what he described as “state-sponsored adoption”. These submissions are echoed by Ms Rahman for the local authority. In response, Ms Hibbard, who appeared below for the mother also, argues that the judge did not misdirect himself in any way. She points out that he gave reasons for disagreeing with the professional assessments of risk based upon the mother’s actual care for K.
  2. We are grateful for the clear and precise way in which the arguments have been presented. Having considered them, I am in no doubt that the judge’s decision that the threshold for the making of a public law order was not met in this case was wrong for the following reasons.
  3. Firstly, the case put by the local authority and the guardian was based on the whole of the history, which covered not only events during K’s short lifetime but all the evidence, including incontrovertible evidence concerning events that took place before she was born and while her mother was pregnant with her. By limiting his consideration to the way in which the mother had behaved with K, the judge excluded from his consideration the solid wall of evidence relating to the mother and father’s personal histories. Had he taken a full overview of the matter, it would have been overwhelmingly apparent that at the time proceedings were taken in November 2017, there was a likelihood of harm to K as a result of her being born to two very young and volatile parents. The professional evidence did not consist of expressions of “risks” and “concerns” with no basis in fact. Here the facts were plain, and the likelihood of harm arose from them. Those facts undoubtedly disclosed risks of significant harm that could not sensibly be ignored. In this case the threshold under section 31(2) of the Children Act 1989 was not only met, it was obviously met.
  4. Secondly, the judge misdirected himself by failing to focus on the relevant date of his assessment, namely whether, at the time when protective measures were put in place and using the statutory tense, K “is likely” to suffer significant harm. Instead he became distracted by the mother’s performance in the mother and baby foster placement. That evidence could only influence the assessment of whether the threshold had been crossed insofar as it might shed light on the significance of the evidence as it stood at the relevant date: see G (Children) [2001] EWCA Civ 968 at paragraph 23. Here, however, there was no suggestion that the later evidence cast new light on the earlier evidence in a way that lessened its significance, and that is certainly not how the judge approached the matter. Had he asked himself the right question – was the threshold satisfied at the date proceedings were issued? – there could only have been one answer.
  5. Thirdly, the judge entangled questions relating to the welfare outcome with the question of whether the threshold had been met. The judge’s role is to find the facts, apply the threshold test to them and, where appropriate, make welfare and proportionality evaluations. These are separate exercises, one leading to the next. It is quite possible to reason that the threshold has been crossed but that welfare does not require separation of parent and child. It is not possible to reason that, because the child and parent should not be separated, the threshold has not been crossed.
  6. For these reasons, if my Lord agrees, this appeal must be allowed to the extent that the judge’s finding that the threshold of likelihood of significant harm had not been crossed must be set aside

 

You’ll find us all, doing the Lambeth Walk (oy!)

 

Gosh, it’s been ages.  Not been any juicy cases to write about, as the big beasts of the High Court are all on holiday, but this is an odd one.

 

It is a Court of Protection case, involving a woman who lacked capacity and whether she should be transported back to her home country of Colombia, interminable wrangling about the costs of transporting a wheelchair, a Court hearing where nobody shows up much to the Judge’s chagrin, and an eventual description of the approach of the public bodies as ‘verging on petulant’  with costs orders following.

London Borough of Lambeth v MCS & Anor [2018] EWCOP 14 (31 August 2018)    

http://www.bailii.org/ew/cases/EWCOP/2018/14.html

 

  1. The documents do not reveal a clear picture, but it appears at least likely that P may have been ready for discharge in 2014; self evidently by the date of P’s assessment on 9 January 2017 P was clinically stable and ready for discharge. In fact I am certain that those conditions arose much, much earlier. It should be recalled that the original application to the Court (made by P’s RPR) was itself an application dated 20 December 2016, challenging P’s deprivation of liberty, pursuant to section 21A of the Mental Capacity Act 2005, made out of frustration because, despite the local authority and the Lambeth CCG supporting P’s wish and desire to return to Columbia, they had simply failed to progress it. “Support” has always been offered, and is still, but when something concrete had to be done, they have been found wanting. Even with the institution of proceedings, it has taken a year to achieve what should have been organised much, much earlier, and significantly, proceedings should have been, and were, unnecessary; all of this could and should have been achieved outside any application.

 

Bear in mind that this woman was ready for discharge in 2014 and the unit she was in was costing £2,000 per week, there ought to have been at the very least a financial incentive to move this along and get her back to Colombia where she wanted to be.   It has cost nearly a third of a million pounds to keep someone in a place where she didn’t want to be, when she could have gone back to her home country.

(Having been rebuked on Twitter during the World Cup for conflating Columbia – the city, with Colombia the country, I am spelling it correctly during this piece, although the judgment does not)

 

The Judge captures the human misery of this awful situation very well.

 

  1. There has never been any formal provision supporting P’s need for Spanish speaking staff, which at best has been provided on an ad hoc basis. P is distressed by receiving care from people who cannot speak Spanish, this has happened almost every day, several times a day, for over 3 years. It takes very little imagination to consider how additionally miserable and isolated she must have felt. Reports describe her as distressed, feeling like she is drowning, feeling scared, complaining of pain, each impacting severely on her everyday wellbeing.

 

  1. Having now had several hearings (in an application that itself was, or should have been, as I have said, unnecessary), I can only begin to imagine P’s sense of frustration and loss at being kept here for years against her wishes, and for no good reason. As even the proceedings have demonstrated so fully, the arrangements could and should have been established and implemented long ago, years ago, but because of disorganised, muddled and unfocused decision making, and what has at times verged on an arrogance, P has just had to wait. It should be remembered that P had been kept here against her wishes, at a cost to the taxpayer of over £2,000 per week. If the authority had done what it should have done in a timely professional manner, not only could they have saved themselves over £100,000 a year, and saved the cost to the taxpayer of these protracted High Court proceedings, they could have avoided P the years of misery from being kept a prisoner here, against her will.

 

Some of the hearings in this case were just a debacle

 

 

  1. At the hearing on 16 November 2017, very distinct progress towards repatriation had finally been achieved. Frustratingly, there were however, still significant details missing, not just an interim plan if there was a delay, but there was no detailed transition plan. I have seen some of the documents in relation to this and they are depressingly scant; frankly, they are unedifying. I entertained the hope, since the remaining matters seemed really very straightforward, that it might even have been possible to agree a draft order encompassing the transfer to Columbia and the deprivation of liberty involved in that move. Accordingly I felt able to make qualified declarations (including being transported to Columbia). But a detailed and realistic transfer plan was obviously still necessary. A proposed draft transfer schedule was provided for that hearing, but it was a poor document lacking any detail, proposing transfer on 20 December 2017.
  2. In view of the history, the shocking history, I made provision for a “long stop” hearing on 13 December 2017 whilst sitting on circuit (hoping still to retain the transfer date of 20 December 2017). I do not think I ever received a position statement from the applicants, who attended by new counsel, who had been inadequately instructed. No one from the applicants, CCG or solicitors had the courtesy to attend. To say this was unfortunate (leaving aside any other issues) is an understatement. No transfer plan had been filed, and important missing detail prevented any progress being achieved. No one appeared to be qualified to make what in some instances were trifling decisions involving a few hundred pounds, e.g. innumerable communications occurred over the provision of, cost of, source of, import duty on, or who should pay for the transport of a wheelchair so urgently required by P, far, far exceeding the cost of the chair itself. Information was given to the Court in relation to, for example, the air ambulance, which subsequently appeared to be wholly misleading and totally without foundation. The approach taken was unhelpful and, at times, verging on petulant. Despite my best efforts it appeared to reflect a deeper, most unfortunate perspective that has, from time to time, permeated these proceedings. In any event, as I say, no one had the courtesy to turn up, so nothing constructive could be achieved at all. Yet again the case was listed for hearing on 19 December 2017, making detailed and contingent directions.
  3. At that hearing, absolutely astonishingly, I was told that, whilst the CCG had approved funding for P’s flight to Columbia, it had arranged its meeting inter alia in relation to the cost of transporting the wheelchair and any import duty in Columbia (see above) for 20 December 2017, the following day – apparently those concerned were rather busy with other meetings. An additional issue concerned the provision for the cost of any care if P was taken ill on the flight; who would pay, was it possible to obtain insurance? The authority, in common with its actions before and since the institution of proceedings, conducted itself without regard to anything else, certainly not the welfare of P, and yet further evidence that the institution of proceedings had had no effect. They have had no regard to Court orders, or the involvement of the Court. This hearing occurred just a day short of the first anniversary of the issue of proceedings, and still the simple goal seemed a mile away.

 

Bear in mind that the unit was costing £2000 per week, and that the hold-up was the cost of flying a wheelchair that she needed out with her, this is just crazy.  Even if you paid for the wheelchair to go first class, that’s just 2-3 weeks of the unit. And as the Judge rightly noted, it would surely have been cheaper (even ignoring legal costs) to have just bought a wheelchair in Colombia and avoided the flight costs.

 

  1. Finally, on 15 January 2018, it was possible to approve a final order. Contrary to previous occasions when either no one attended, or those present had not obtained delegated financial responsibility, on this occasion, what should have occurred much, much earlier, probably years ago, was obtainable, and significant assurances and undertakings were forthcoming for the provision of care in the unlikely event P was taken ill in transit and required hospitalisation en route. All that should have occurred several months earlier and it is entirely symptomatic of the malaise which has beset these proceedings from the outset. For which P has been the unhappy victim, and the Applicant entirely responsible.
  2. P left the UK on 25 January 2018 by air ambulance. Her move is described thus:
    1. “The move went very well. There were no health concerns en route. P remained calm, restful and slept during the journey. The ambulance crew were extremely impressive and efficient. The doctor could speak Spanish. Upon arrival P “recognised many of her relatives and smiled all over her face.””

Finally, a happy ending to a tragic story.

  1. I set out a summary of these unhappy proceedings, not just because they should not have been necessary, but to highlight the very deeply frustrating and disorganised thinking, planning and management within the authority. As a result a vulnerable adult has been kept unnecessarily miserable against her will, confined in an environment for much longer than was necessary. In my best estimate, for 3 years.

 

 

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.

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.