Category Archives: case law

More on Vitamin D and rickets

Posted on November 22, 2012 by suesspiciousminds

 

A discussion of the Court of Appeal decision in Re C (A child) 2012  

 

The case can be found here – thank goodness for Bailii.

 http://www.bailii.org/ew/cases/EWCA/Civ/2012/1477.html

This was a case in which the parents sought to overturn findings made by Her Honour Judge Carr in relation to twelve fractures to a four month old infant, which she found to be non-accidental in nature and a result of trauma.  

 

  1. C was next presented at the hospital some four days later on 30th October 2009 at 22.14 hours with a swollen right leg. A subsequent skeletal X ray disclosed multiple fractures of ribs, fractures to his tibia and fibula which were metaphyseal in nature together with a transverse fracture of his right femur. There were twelve fractures in all which had been sustained by this four week old baby who was obviously not self-mobile.
  1. The fact finding judgment of 5th July 2010 records that the parents were given full rein by the court to identify and instruct whatever relevant medical experts they considered might be able to assist the court in understanding how baby C came to manifest the injuries and symptoms that I have described. In particular Professor Bishop, who holds the chair of Paediatric Bone Disease at Sheffield Hospital, and who is regarded internationally as an expert in paediatric bone conditions, was jointly instructed by all parties to the proceedings. It is a feature of this case that at the fact finding hearing each of the respective experts were unanimous in their conclusion that the probable cause for the groin symptoms and the fractures was trauma inflicted on baby C at some time after his birth. On the basis of that expert opinion, but also on the basis that the judge, for reasons given in the judgment, found that the parents’ evidence indicated fault lines in their relationship and in their credibility when giving evidence to the court, HH Judge Carr made a very clear finding that baby C had indeed been injured in the period between birth and final presentation at the hospital and that the only possible perpetrators of the injuries were the mother and/or the father.
  1. The parents’ application to the learned judge in June of this year was to re-open the whole fact finding process. The application was widely based and the skeleton argument on the parents’ behalf identified no fewer than twenty six factors which, it was submitted, now fell to be reconsidered in the light of suggested developments in medical understanding or which had not been given sufficient prominence at the original hearing. In a reserved judgment delivered on 18th June 2012 the judge reviews each of the points made to her on behalf of the parents and, in turn, rejects each one. Before doing so the judge noted that at the previous hearing “the court allowed the instruction of every expert/test requested by the parents, including, in particular – and contrary to medical opinion – genetic testing for possible bone disorder” and “even during the course of the hearing the court checked with those representing the parents whether there was any other expert evidence they sought – and was told ‘no'”.
  1. During the course of the June hearing the judge was taken to two recent decisions, London Borough of Islington v Al Alas and Wray [2012] EWHC 865 (Fam) and A County Council v M and F [2011] EWHC 1804 (Fam). The first of these cases, which I will refer to as “Wray”, achieved national publicity. In the Wray case, Mrs Justice Theis held that bone injuries seen on a young child were the result of rickets rather than inflicted injury. HHJ Carr, in the present case, considered that neither of these two new authorities involved any new point of law, and did not necessarily assist her evaluation of Baby C’s case. She drew particular attention to the following caveat given by Theis J in the Wray judgment:

“It is important to remember that my conclusions set out below are entirely related to this case. Despite their differences of opinion, all the medical experts agree this case is extremely complex. By their very nature, cases such as this are very fact specific and great caution should be adopted in using any conclusions I reach to support any wider view outside the very specific facts of this case…”

  1. Despite the fact that it is possible to summarise the June 2012 judgment in short terms, concluding as it did that each of the points raised on behalf of the parents took matters no further, it is right to record that the judgment itself indicates a significant amount of time and consideration given by the learned judge in which she traces each of the factors relied upon back to the evidence and conclusions that were current in the 2010 process.

 

 

The challenge in the Court of Appeal was interesting.  It is quite precise, so I won’t try to paraphrase it before you have read the judicial summary

 

  1. 12.   “6. What is the point that the parents seek to make? It can be put in very short lay terms. They contemplate, understanding as they and their advisors now do on the basis of medical knowledge, that it is possible for an unborn child to develop a deficiency in vitamin D to the extent that their bones are unduly soft, or otherwise be symptomatic of congenital rickets. The baby is born, and this was a difficult birth which may have been beyond term, although as I understand it the dates were not precise; and it is possible, say the parents, for the birth process, without any negligence or rough handling on the part of the medical team involved, to have caused the fractures in this case. The child is then born, no doubt it is postulated as at that moment deficient in vitamin D, but the child is then fed either entirely upon prepared milk or a mixture of breast and prepared milk, the prepared milk having vitamin D supplement within it.

7. Baby C was born on 3 October 2009, and his vitamin D was not measured at all until tests were undertaken in November, a month or more later. Those tests were normal. The argument on behalf of the parents is that it is not remarkable that the child’s vitamin D levels, once he ceased to be dependent upon the mother’s system, were up at normal levels because of the supplement he had been obtaining in the milk, and it does not prove one way or the other what his vitamin D level will have been at the moment of birth. I use the phrase “once he has ceased to be dependent upon the mother’s system” because it is a fact established on the medical evidence in the case that the mother herself has a modest — and I think it is modest — vitamin D insufficiency, and that therefore she may have been compromised in her ability to provide through the placenta an adequate supply of vitamin D to her unborn child. That is the synopsis of the parents’ case.

 

 

 

In terms, what is suggested is that it would be possible for an infant to have Vitamin D deficiency, which could lead to rickets, which could lead to susceptibility to fractures without trauma  – but that a test of Vitamin D at a later stage would not necessarily show a deficiency, because the Vitamin D levels can recover quite swiftly once the baby starts feeding.

 

The Court of Appeal immediately hit upon the problem with that:-

 

  1. 12.   8. My concern on reading the papers was that, whilst it is possible to understand that process, it would be impossible now, three years after C’s birth, to have any firm clinical readings or tests which could prove one way or the other, or even indicate one way or the other, that what is put forward by the parents was anything more than an intellectual possibility. The way the case was put before the judge indicates that she was not given any firm clinical hook upon which to see that the parents’ case might hang.

 

 The Judge also touches on the very interesting dynamic of a group of lawyers trying to persuade a Judge of the clinical and medical significance of some liver function tests, when none of them truly understand them.

The submission is made by lawyers to a judge, therefore between people who have no medical background, that the liver function is important in the sequence of production of vitamin D, and these abnormal liver readings may provide some base of clinical evidence to give support to the process that the parents now contemplate may have been involved.

 

What happened thereafter was that the Court of Appeal allowed the parents to instruct an expert of their choosing  (Professor Nussey) to look at the totality of the clinical features and medical records, to see whether there was anything that pointed clinically to this child having – firstly a Vitamin D deficiency and secondly that this might have led to Rickets, and finally, that the rickets might have led to the fractures being caused non-accidentally.

 

Those representing the child simultaneously instructed Jo Delahunty QC to represent the child, knowing that she had at her fingertips, the wealth of information from Al Alas Wray about Vitamin D deficiency and fractures; to look at the case and advise on whether there was a problem here that needed resolution.

 

 

The conclusions of the expert are set out here

 

  1. The following would seem to be the important highlights from Professor Nussey’s reports.

a) Blood results for baby C’s mother during the period of pregnancy demonstrate vitamin D deficiency in her system. Professor Nussey therefore states:

“thus, it is likely that C was subject to vitamin D deficiency for the majority of his inter-uterine life”;

b) Haematology results for baby C’s mother indicate that:

“she became progressively iron deficient during pregnancy though this was not confirmed by formal iron studies and it seemed to improve without iron supplements between August and October 2009.”

Professor Nussey explains that iron plays a role in collagen (the protein affected in osteogenesis imperfecta) synthesis and is an essential part of the enzyme that converts inactive vitamin D to its active form in the kidney. The professor knows of no studies examining the effects of combined vitamin D and iron deficiency during pregnancy and infancy;

c) Whilst it is likely that C was born with vitamin D deficiency and low iron stores, it is clear that C was bottle fed with vitamin D and iron supplemented proprietary feed. By 6th November 2009 all readings relating to baby C reflected a normal serum vitamin D concentration.

d) Professor Nussey concludes:

“Thus, whilst it is recognised that the quantities of vitamin D in formula feeds are calculated to prevent rickets rather than to optimise bone mineralization it is, on the balance of probabilities, unlikely that vitamin D deficiency played a significant role in bone fragility predisposing the fractures which C presented”;

e) Later Professor Nussey also concludes:

“There appears to be no medical condition linking the presentations due to fracture and its sequelae on 2nd November and 4th December 2009 to that on 26th October 2009.” (The latter date being the day that C was taken to A&E with symptoms around his genitals).

f) The final question asked of Professor Nussey was “having considered the medical evidence available to you, please indicate whether or not you have sufficient material to conclude whether or not the child has a medical condition to account for his injuries and if not, what further evidence you would require to draw a conclusion”. To which Professor Nussey replies:

“From the material available, within my expertise in endocrinology, I do not think there is a medical condition to account for C’s injuries. “

 

 

None of which is probably what the parents were hoping for, and it seems to get worse and worse as you go down the list.

 

The Court of Appeal were greatly helped by the involvement of Jo Delahunty QC, and set out her useful interventions here

 

  1. Miss Delahunty is rightly critical of the way in which this matter was presented to me in September. The 2010 fact finding judgment and bundle of expert opinion was not then made available to the Court of Appeal. In view of the need for urgency in resolving this issue I was persuaded to grant the adjournment sought rather than take further time seeking additional paperwork. However, Miss Delahunty argues that the fact finding judgment, which was plainly in the possession of the solicitors acting for the parents, would have demonstrated that HH Judge Carr had before her experts who had a particular expertise in bone disorders and vitamin D deficiency. These experts had been particularly asked to consider the very points now being made relating to the mother’s vitamin D deficiency and the possibility that the baby may have had vitamin D deficiency at birth and that that in turn may explain some or all of the fractures. The experts were also asked to consider if the birth itself could cause fractures and a neonatologist was specifically instructed to address the birth process.
  1. Miss Delahunty took the court to the report of Dr Takon, a consultant paediatrician with expertise in rickets who confirmed (page E128) that “rickets does not resolve without treatment”. She also referred to the evidence of Professor Bishop (page E108) where he stated that “it would be difficult to see how C could have been severely deficient at birth, have normal-looking X rays and normal blood tests four weeks later without treatment-level intervention.”
  1. Having looked at this matter in depth Miss Delahunty summarises the position as follows:

“From different specialism the same answers were given: birth could not account for the fractures. Neither could vit D or bone density disorders. The experts gave clear answers to clear questions. Vit D deficiency, even had it existed at birth, could not account for the type and age of the fractures identified upon admission.”

  1. In dealing with the oral submission now made by Mr Shrimpton, Miss Delahunty challenges counsel’s assertion that the clinical consequence of vitamin D deficiency is rickets. She accepts that vitamin D deficiency at birth may progress to rickets, but it does not equate to rickets. Miss Delahunty challenges Mr Shrimpton’s approach of cherry picking small parts of the expert evidence from the fact finding process when the total picture presented by all of the experts was entirely contrary to the argument now made.
  1. Miss Delahunty characterises the mother’s vitamin D deficiency as “very minor” and therefore the potential for this factor affecting the child’s bones is remote. She describes the parent’s argument as “without hope” and the application for a further adjournment to disclose papers to experts as being totally unjustified.
  1. The point made is that vitamin D could go from being down at birth but normal at four weeks, but weakened bones could not go back to normal in that time. It is submitted that Mr Shrimpton seeks to conflate the former, which is established by Professor Nussey, with the latter, which was the position of the experts at the fact finding hearing. The experts’ position is therefore unaffected by Professor Nussey’s insight into the intra-uterine vitamin D levels and that is confirmed by Professor Nussey’s own opinion that the vitamin D is, on a balance of probability, not related to the fractures.
  1. I have been impressed by, and grateful for, the thorough process that Miss Delahunty QC and Miss Denise Marson, her junior, have undertaken. I propose to extract section E and F from their skeleton (pages 13 – 19) and publish them as an addendum to this judgment in order that both the thoroughness of the exercise and its clear conclusions can be understood.

 

 

My reading of this is that there’s a risk in assuming that a possibility of vitamin D deficiency amounts to There was a vitamin D deficiency, the Vitamin D deficiency caused rickets, rickets caused the fractures; and one has to be careful in establishing that there is a clinical and medical case for advancing from each stage to the next.  Even establishing a Vitamin D deficiency does not establish that the fractures were caused by rickets, merely that this needs to be explored.

 

 

The totality of the conclusions, and the decision of the Court of Appeal was therefore that the findings made by Her Honour Judge Carr were not only robust and properly formulated, but not overtaken by medical developments that were more widely disseminated by Al Alas Wray.

 

[My broader conclusion is that you want to get on the phone to Jo Delahunty’s clerks at 4 Paper Buildings as soon as you can if you have a case where there’s a suggestion of Vitamin D deficiency, before anyone else beats you to it. It might be a stretch to suggest that she is the Perry Mason of family law – as he never ever ever lost a case, but I’d certainly suggest that having her on your team is rather like picking Lionel Messi to be in your five-a-side football team – you certainly would come to regret the other side having them instead of you.   If  Ms Delahunty wishes to use  “She is the Lionel Messi of the family bar” as a quote for Chambers Directory or the Legal 500, she would do so with my blessing]

 

 

The Court of Appeal felt that there were portions of her skeleton which warranted broader circulation, and annexed them to the judgment. I would agree, so here they are:-

 

 

 

  1. EXTRACT FROM SKELETON ARGUMENT ON BEHALF OF THE CHILD FOR THE ‘PERMISSION TO APPEAL’ HEARING LISTED BEFORE McFarlane LJ ON THE 1ST NOVEMBER 2012

E THE MAIN ARGUMENT? VIT D DEFICIENCY AS A BENIGN CAUSE FOR THE INJURIES

This submission made on behalf the parents lacks a fundamental understanding of the interplay between Vit D Deficiency and rickets and ignores the following:

  1. The skull is one of the first bones to lose bone density as its supply of Vit D and the formulation of calcium is sacrificed to the brain, blood and nerves. Vit D deficiency affecting the bones can manifest itself by wormian holes or craniotabes (softening or thinning of the skull). Baby C was delivered by Forceps. Dr Takon (Consultant Paediatrician with specific expertise in Vit D deficiency) advised that ‘rickets result from deficiency in Vit D which affects adequate bone formation. This is a disease of the growing bone and does not occur in utero. It can be caused by nutritional causes such as when there is a diet deficient in Vit D. Rickets does not resolve without treatment. Children with malabsorbtion and abnormal renal function which affects Vit D can present with rickets. C’s kidney functions, liver function and blood results were all normal. C had normal Vit D levels. The classic clinical signs of rickets are bone deformity. In infants the skull, the upper limbs and the ribs are the most affected due to the rapid growth of these bones during this period (Kruse). Deformity of the skull bones and bulging of the ribs are some of the bony changes that can be seen in addition to abnormal laboratory results. C had none of these biochemical or clinical features. He had normal Vit D levels’.
  1. If baby C was born with congenital rickets derived from Vitamin D deficiency in utero, Vit D supply would have been its lowest at birth and from that point on would have robbed the bones of their supply before the Vit D supplements provided by the formula milk had taken effect.
  1. The dating of the fractures, in any event, takes the point of infliction of them from after birth: the oldest was the 6th rib. Even if we reject the expert opinion that this was not birth related and assume it may be ( because of problems with dating the healing rate of calcium deficient bones ) that leaves the

a. Posterior fractures of the right 10th and 11th ribs;

b. 8 metaphyseal fractures of both distal and both proximal tibiae, left proximal fibula; both distal tibiae and right distal fibula;

c. Transverse fracture of the right femur.

  1. These were all dated at less than 11 days as at 2.11.09 i.e.: sustained on or after the 22nd October 2009, Baby C’s date of birth being 3.10.09 (Dr Halliday Page E39 (paragraph 5.4).
  1. It is significant

a. that they were thus most proximate to the normal Vit D reading obtained from Baby C on 6.11.09. and

b. That they showed signs of healing (see the well formed callus on the Right femur between 30.10.09 and 4.12.09 and the signs of healing on other fractures between the X rays of 2.11.09 and 12.11.09). The healing process demonstrates that Baby C’s bones were capable of utilising calcium to regenerate and form new bone.

  1. This point was emphasised and addressed further by Professor Bishop (whose evidence was accepted by HH Judge Carr QC) at no. 7 page E108 “It would be difficult to see how he could have been severely deficient at birth, have normal-looking x-rays and normal blood tests 4 weeks later without treatment-level intervention (3000 IU vitamin D/day; milk formula contains 40IU/100ml)”;[1]
  1. Dr Takon agreed ‘calcium metabolism in the foetus usually involves transfer of calcium from the mother to the infant. The growing foetus does require increasing calcium requirements which continue to be derived from maternal supply through the placenta. During delivery , when the baby is born, there is an abrupt drop in the supply of calcium which then stimulates the baby’s calcium regulating hormones kicking in and gradual stabilization of the calcium levels in the new born. The calcium levels can therefore be low at birth and then trigger secretions of Vit D in the infant to help stabilize the levels’ … E 128)
  1. Prof Nussey agrees on this critical issue (@ CoA bundle 100) ‘whilst it is likely that (baby C) was born with vitamin D deficiency and low iron stores, it is clear that C was bottle fed with Vit D and iron supplemented proprietary feed. In a population study in Canada a small number of bottle fed children with rickets have been reported (Ward et al Ref 5). However, the serum 25 hydroxyvitamin D on 6.11.09 was 76.7nmol/l and the serum calcium, phosphate and parathyroid hormone were all normal reflecting this serum Vitamin Concentrate. This, whilst it is recognised that the quantities of Vit D in formula feeds are calculated to prevent rickets rather than to optimise bone mineralisation it is ,on the balance of probabilities unlikely that vitamin d deficiency played a significant role in bone fragility pre disposing to the fractures with which C presented’
  1. It is highly relevant that all bar one of the bony fractures were

a. of the same age ( less than 11 days old)

b. of which 8 were metaphyseal

c. posterior re ribs

The fractures (in position and type) were considered to be highly indicative of NAI

It is not just that those fractures which were present were characteristic of inflicted injuries but the absence of others which might tend to suggest rickets that is relevant

•    No multiple fractures of multiple ages;

•    No fractures where the majority were the oldest and most proximate to birth (before the fortified milk had ameliorated any deficiency);

•    No fractures to the skull or the shoulders during the birth process and applied forces within it ;

•    No fractures thereafter to those parts of the body most commonly handled in bathing, changing nappies and dressing / undressing.

We suggest that not only were the type of fractures sustained by Baby C most commonly associated with inflicted injury but he did not have those fractures which are suggestive of early onset of, and gradually resolving, bone fragility.

  1. Not only were the fractures not those of the type, distribution and multiple ages suggestive of rickets but there were also no radiologically evident signs of rickets

For example see Dr Halliday @ E 119 just as an example: who had looked at the x rays for signs of oesteopenia (where the bones appear less white on an x ray) and wormian holes (small bones within the sutures of the skull). Nor were there visible signs of widening and splaying of the growth plates or widened periosteal reactions.

By itself, it may be that this was not conclusive evidence of the absence of rickets, BUT it is to be seen in conjunction with the point above and the points below.

10 Bone Density/ Appearance. Baby C’s scans and x rays were examined by treating medics and experts for signs of any bone abnormality. This included the skeletal X rays and CT skull imaging.

None were found. Again, by itself it may be argued that this does not conclusively rule out rickets but it is highly relevant when considered in conjunction with the other matters in this section.

Dr West (Const Paed): ‘no radiological of any underlying bone abnormality’ (E3)

Dr Halliday (Neuro Rad) ‘there is no evidence of abnormality of C’s bones on the radiograph which make him particularly susceptible to fracture. In particular there is no evidence of osteogenesis imperfecta or brittle bone disease (E38) and again @ E119 ‘rickets is also associated with osteopenia. Together with widening and splaying of the growth plates (cartilaginous strips at the end of the bone) and some times a wide spread perisosteal reaction. These features were not present on C’s films’

Prof Bishop (Prof Paed Bone Disease) ‘the size and architecture of the bones looks normal to me. There is no evidence of loss of bone mass’. and then @ E108 ‘there is no evidence of any bone abnormality or bone fragility. The pattern of fractures is characteristic of non accidental injury rather than bone disease. In my opinion C’s bones are normal and he has been the victim of non accidental injury.

11 Vitamin D deficiency affects the whole of the central nervous system of a baby’s body, it is essential to feed the nerves and brain cells, it follows ( as Al Alas explored at length) that its absence makes the baby –

1. vulnerable to seizures ( prone to hypocalcaemic fits)

2. with an increased susceptibility to infection and

3. with a decreased ability to recover from infection

These are the clinical signs of Vit D deficiency. (see Dr Takon @ E47)

Baby C exhibited none of them either at the time of his admissions or on report of the parents between them. He did not have an infection. (see Dr Takon @ E48/ E 50/ E 55/ E 126)) If he did have an infection he had been able to fight it off.

Clinically Baby C did not show signs of Vit D deficiency

Conclusion: In Baby C’s case all the multiple ways of detecting rickets and Vit D deficiency pointed in one direction and away from it being a causal factor in the fractures he sustained:

•    The absence of the type, number and age of fractures more likely attributable to rickets

    • The presence of fresher fractures close to the normal Vit D testing and their type
    • the lack of radiological evidence of rickets
    • the lack of biochemistry results indicative of Vit D deficiency
    • the lack of clinical indicators of Vit D deficiency

These factors, individually and collectively demonstrate that whatever condition Baby C may have been born with, rickets and on going Vit D deficiency does not provide a benign cause for the fractures he sustained.

This is not news . Dr Takon in her report @ E 60 considered and pulled together the significance of the mothers Vit D levels, her bone density scan and concluded that baby ‘C does not show any physical, biochemical or radiological features of Vit D deficiency’ . As did Prof Wyatt @ E 100 and Prof Bishop @ E 107.

Moreover, Baby C did not only suffer from fractures found to have been inflicted, he also sustained genital injuries which were found to have been inflicted. There is no link identified by Prof Nussey between the genital presentations and the fracture related presentations.

F THE GENITAL INJURIES

Whilst baby C’s genital symptoms (injuries) seen by Mr Roberts on the 26.10.2009 were initially diagnosed and treated by him as an infection for which he prescribed antibiotics, there is in fact, no objective evidence of infection. There were no clinical signs of infection, C’s temperature was normal, C’s blood test results were normal[2]. (see Dr Takon @ E56) . Baby C had no other treatment or diagnosis for infection in the first four weeks of his life. The conclusion of those experts who considered Baby C’s genital injuries were that they were ‘unusual and worrying’ and the result of traumatic injury where no accidental explanation had been given by the parents (e.g.: see Prof Wyatt @ E 93)

With no evidential base for rickets/vitamin D deficiency and no evidential base for infection, there is no underlying reason why C should present with injuries to his genitalia.

Prof Nussey agrees and can see no linking cause between the presentations.

Ms Jo Delahunty QC
Mrs Denise Marson

Note 1   The jointly instructed expert , Prof Bishop , and his conclusions at E107: ‘ C underwent a number of blood tests including two bone profiles, and had his serum PTH measured twice and his serum Vit D level measured once. His levels of calcium and phosphate were at the upper end of normal range for age as is frequently observed following fracture. His serum alkaline phosphates was not elevated (272 and 260 IU/I) and his PTH was suppressed (&) probably because his calcium level was higher than average. His Hydroxyvitamin D level was very good (76.7 n/mol/l on 6.11.09: higher than is seen in infants at that age. These are normal responses following fracture in a Vit D replete individual; prior vitamin D depletion would be unlikely given the formula feeds he had been on ( which contain Vit D and his normal serum PTH and alkaline phosphates. His platelets were slightly elevated and on of the clotting test times were reduced, neither of these are associated with bone fragility. Maternal 25 Hydroxyvitamin D has also been measured and is sub optimal at 39 n/mol/l on 13.11.09 in association with a PTH is close to the upper limit of the normal range at 6.25 pmol/l; however this is not a particularly low level of Vit D for a pregnant mother and one would not expect it to impact on the Vit D status of the new born on transplancental calcium transfer (which is not dependent on Vit D).     [Back]

Note 2   It is of significance that the blood was taken from C whilst at Rotherham District Hospital (RDH) this was prior to antibiotics being prescribed at Sheffield Children’s Hospital (SCH), see F23 from the original care proceedings bundle re discharge from RDH, and F173 – F174 re admission to SCH. See also further reference at page 98 of Prof Nussey’s report. The lack of infection ‘markers’ was NOT as a consequence of antibiotics having been prescribed.    [Back]

 

 

 

 

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Lies and the Lying Liars who tell them

Posted on November 16, 2012 by suesspiciousminds

 

A discussion of Re B (A Child) 2012

 

 

The case can be found here

 

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1475.html

 

 

I think this case is of interest, and it certainly interested two of the Appeal Judges, because it looks in quite a lot of detail at the intersection between odd, unusual and peculiar parenting and significant harm where the State has to intervene.

 

 

The case is rather neatly summed up by these two passages, firstly from Lewison LJ’s  judgment :-

 

  1. I have found this a very worrying case. In a long, detailed and careful judgment HHJ Cryan found that:

“I am satisfied that the threshold has been crossed, not perhaps in the most extreme way that is seen in some cases, but crossed it has been.”

  1. Yet when he came to make his ultimate order he made an order with a view to placing A for adoption; in other words to remove her from her parents forever. As I understand it that is, for practical purposes, the most extreme order that he could have made. How is that to be reconciled with his finding?

 

And then from Rix LJ’s judgment

 

However, standing back, I also wonder whether this case illustrates a powerful but also troubling example of the state exercising its precautionary responsibilities for a much loved child in the face of parenting whose unsatisfactory nature lies not so much in the area of physical abuse but in the more subjective area of moral and emotional risk

 

 

I know, from the comments I get on this blog, that emotional risk  or emotional harm is the area that concerns many of them the most. It feels nebulous and vague and tenuous, and rather as though it could catch anyone in the net and snare them, if they just happened to fall foul of the State.  And of course, it is the one area of child abuse that couldn’t  result in criminal proceedings being brought – what the parents are alleged to have done is not treat their child in an illegal way, but just an improper one.

 

 

Let’s have a look at the harm that the LA alleged was posed by these parents

 

 

  1. The local authority’s case was that each of the parents posed a significant risk to A. The cornerstone of their threshold case was as follows:

“[M] and [F] have innate psychological and/or personality issues and/or anger management issues (in relation to the father) which are likely to impair their ability to provide good enough physical and emotional care of their daughter. [M] has been assessed as suffering from a significant disturbance of psychological functioning, being best described as somatisation disorder and has a long standing history of engaging in deceptive behaviour.

There is a real risk that A’s emotional, education and social development will be impaired as a result of the parenting and emotional nurturing she is likely to receive by her parents due to their own innate issues; this leading to a real risk of significant harm.

[F] does not accept the fact that [M] can be untruthful nor that she is a risk to A. He is not therefore a protective adult for A.

[F] is unable to communicate in an open and honest way with professionals and accordingly exacerbates the risks to A.”

  1. As the foundation for this, the local authority relied upon findings made by Judge Cryan in the proceedings relating to AE about M’s relationship with Mr E and about M’s untruthfulness, demonstrated inter alia by her criminal convictions. They also relied upon a number of other features including:

i) M having continued to live with Mr E despite his abusive behaviour and, when she left, having left AE behind with him;

ii) The apparent difficulties in M’s relationship with AE;

iii) The risk to A of unnecessary medical investigations and treatment flowing from the somatisation disorder that two psychiatrists had diagnosed in M;

iv) The risk that M may impair A’s moral, emotional and social development by involving A in her deceptions and exaggerations, termed in the threshold document a “tendency to pathological lying”;

v) The problem created by social services and other professionals being unable to rely on the truth of what M says;

vi) F’s long history of criminality and drug use;

vii) F’s refusal to engage with the local authority’s attempts to find out about him and to assess him, his failure to be open and honest with professionals and his deep hostility to social services including his threatening and aggressive behaviour towards them;

viii) F’s unwillingness to accept that M poses any risk to A and therefore inability to protect A from her.

 

 

 

Apart from the issue of father’s drug abuse, of which not much seems to be made, the rest of this seems to boil down to  ‘the mother is a pathological liar’ and that might bring about harm to the child.

 

Whilst the totality of the case makes it pretty clear to me that there were sound reasons for believing the mother to be a pathological liar, and the Court of Appeal were very complimentary to the way that the trial judge had carefully sifted and weighed all of the evidence,  I have to confess that I am struggling for concrete risks that having a pathological liar as a parent causes to the child.  Some of the lies she is reported to have told are bizarre, odd and strange, and it is not a massive leap to suggest that a child exposed to them might find it bizarre, odd and strange that such lies were routinely told by a parent. But, I’m not sure that amounts to significant harm, or risk thereof.

 

There’s a hint at it in this line :-

iii) The risk to A of unnecessary medical investigations and treatment flowing from the somatisation disorder that two psychiatrists had diagnosed in M;

 

which implies that mother’s pathological lying might extend to making up illnesses or need for treatment of the child.  In part because some of her pathological lying has manifested in her lying about her own medical situation to get attention. So it might transpose to the child (back at Munchausen by proxy again).

 

Well, it might.  They don’t say that it HAD done this, and if it HAD, the LA would surely have been relying on it, and I think that’s a bit of a stretch.

 

It seems to me that this risk could be pretty comprehensively managed by the GP and local paediatric department being alerted to mother’s somatisation disorder, which presumably they had on the files about her anyway, so they would know not to take everything she said about A’s health at face value.

 

 

 

There is an interesting criticism of the Guardian by the original trial judge, which I think flows from working practices rather than any poor work on her part as an individual  (yes, I am back on my Homeopathic Guardians hobbyhorse)  – although the fact that in the previous paragraph she had not understood the limitations of an Interim Supervision Order was pretty troubling.

 

 

Judge Cryan’s judgment set out the limited role that the guardian had played during the care proceedings and the judge’s concern that in a case of this complexity she had not been able to engage more closely so that she could help the court from a more personally informed position. Her assessment of the family support network was described by the judge as “virtually useless”. His overall conclusion about the guardian was that she was “an unimpressive witness whose input to this complex case was little short of superficial”.

 

 

 

On threshold, this was the passage where the Judge decided whether it had been crossed

 

  1. Judge Cryan said [189]:

“I am satisfied that the threshold has been crossed, not perhaps in the most extreme way that is seen in some cases, but crossed it has been. I am satisfied from the evidence of Drs Bass and Taylor that when A was taken into the care of the local authority some two years ago now she would have been at risk of significant harm from the care likely to be given to her by her parents. I am satisfied that the mother suffered from each of the disorders which the doctors have diagnosed and following on from that I accept their evidence that in the way described by them there was a risk of significant harm being caused to A. In addition, though for the purpose of the section 31 threshold such considerations are otiose, I am satisfied that the matters identified by Ms Summer, whose evidence I accept, cause me considerable concerns. In particular, curious as it may seem in light of the parents’ obvious commitment to contact, I would be seriously concerned about the parents’ capacity adequately to promote her emotional welfare if she was in their full-time care.”

 

 

The parents appealed, relying in large part on the doubt that the behaviour alleged by the LA, could (even if proven) constitute a risk of significant harm.

 

I liked this passage from their submissions

 

  1. Counsel invited our attention to a number of authorities, domestic and European, in order to provide a framework for the consideration of their factual submissions, whilst rightly identifying that there is relatively little authority on the meaning of “significant harm”; I will consider some of this jurisprudence a little later. Counsel submitted that the section 31 threshold is not a low threshold and that the requirement that the harm should be “significant” should not be diluted but interpreted in the light of the fact that any interference with family life must be “necessary”.
  1. They argued that the risk at its highest is that A “may develop unacceptable or unusual behaviour” but that it is not said how that would harm her or others.
  1. In a passage of their skeleton argument which brings to mind some often-quoted words from Hedley J’s judgment in Re L (Threshold Conditions) [2007] 1 FLR 2050 (see below), they said:

“Many parents are hypochondriacs, many parents are criminals or benefit cheats, many parents discriminate against ethnic or sexual minorities, many parents support vile political parties or belong to unusual or militant religions. All of these follies are visited upon their children, who may well adopt or ‘model’ them in their own lives but those children could not be removed for those reasons.”

  1. They submitted that to justify interference in family life, the harm which is foreseen must have some element of immediacy or at least reasonable proximity which is lacking here given the number of contingencies upon which it depended and given that the general practitioner would act as a safeguard against problems developing.

 

 

And I have to say, I don’t really disagree with any of that.  To this point in the judgment, I am still struggling to see what transforms this from being a child who will be brought up in an odd, unusual and possibly downright peculiar environment to one who would be significantly harmed by the parenting she received.

 

 

 

 

 

 

 

 

 

 

This is how Black LJ squared that particular circle

 

 

  1. Although a significant focus of the argument before us was upon M’s medical behaviour and particularly upon whether her somatisation was sufficient to justify the orders the judge made given that there was no evidence of inappropriate consultation since she left Mr E, and whether she could additionally be said to suffer from factitious illness disorder, in fact the judge’s consideration of the case was rightly considerably wider than this. All the professionals involved in the case, whether or not advising that A should be united with her parents, accepted that there were risks. The focus of each individual witness varied depending on their point of view but the field was not limited to the acknowledged risk that M’s distorted behaviour in relation to illness (whatever it may be termed) may not be historical only and may revive. It included also wider risks to A’s emotional welfare posed by M’s personality problems and her non-medical behaviour, as well as F’s conduct separately and in conjunction with her.
  1. Given the focus of the hearing before us, I will deal in some detail with the type of harm that I consider the judge was entitled to find was a real possibility here. I do not accept that he erred either in the harm that he identified or in treating it as of significance. Furthermore I do not accept that the judge’s reasoning about harm and risk is confined to the latter parts of his judgment; he refers to both issues repeatedly throughout it as I hope can be seen from my earlier summary of the judgment.
  1. The judge was clearly aware of the need to look critically at what harm there actually was and in particular to separate that issue from the question of whether the parents would cooperate sufficiently with social services. This was evident not only from the judgment but also from a passage to which we were taken in the cross-examination of the social worker where at one point the judge intervened to explain to her that it did not matter how uncooperative parents were with social services if there was no risk against which social services needed to guard. He isolated for her the questions, “What is the risk to A that is actually being guarded against?” and “Why is it necessary [for social services] to engage with M?” (transcript 7/35).
  1. The corollary of the risk of M’s medical behaviour reasserting itself was the risk that A would be harmed by the “intergenerational transmission of abnormal health behaviour” and “excessive medicalisation”, which terms are self-explanatory even if not part of everyday language. This harm would not necessarily be physical but the judge did not discount the risk of physical harm. He is criticised for his acceptance of such a risk. The criticism is misplaced in my view. He found only that there was a risk of over-treatment or inappropriate medical treatment. He was undoubtedly entitled to find that there was a risk that M’s illness related difficulties, if they reappeared, would lead her to present A inappropriately to doctors and unnecessary treatment was a logical potential consequence of that. His finding about the parents’ approach to A’s health whilst she has been in foster care added substance to this risk as did M’s exaggerated description of A’s condition on her hospital admission to which both Dr Taylor and Dr Bass attached significance and which might, if repeated or made to those not in possession of the facts, influence her medical care as the judge said.
  1. Ms Summers dealt with the harm flowing from M’s chronic lying and F’s active tendency to dishonesty [192] in her report at paragraph 6.5. She considered that as A got older and reached more sophisticated levels of understanding, she would become aware that her mother’s version of the truth differed from her own which would be confusing for her and force upon her difficult decisions about whether or not to collude with her mother against the outside world such as friends, school and professional agencies. She said that exposure to persistent and longstanding patterns of lying would present a moral risk to A, potentially making it difficult to differentiate right from wrong which could lead to problems with her social and emotional development affecting school life, friendships and other relationships. Continued exposure to deceptive behaviour was likely, she thought, to result in A adopting similar styles of behaviour which would potentially have serious consequences in later life, such as delinquent/criminal behaviour.
  1. The judge said he shared Ms Summers’ view but he had plainly also made his own assessment of the likely emotional risk/harm to A from features of the case other than M’s illness related behaviour. He had the evidence of Dr Bass and Dr Taylor that M had personality problems and he had found a catalogue of ongoing deception which Dr Bass had indicated he would find very concerning. The catalogue can be found in full in the judge’s judgment and I have referred to it above so I will only briefly draw together a few of the features here.
  1. I would attach particular importance to the findings that the judge made about M’s position in the E household. M had plainly suffered very considerably in that household and she deserves sympathy for the abuse inflicted upon her there but the judge’s findings disentitle her from arguing that she was solely a passive victim and that her problematic behaviour will not recur. There was, to borrow phraseology from the guardian’s skeleton argument, a problem about learned or ingrained behaviour. The judge did not see M’s role in the E household as entirely inert [22]. In the April 2011 judgment, he described her as “a habitual and purposeful liar and accomplished fraudster” and said he could not see that there had been any very marked improvement in her truthfulness despite her nearly two year separation from Mr E. Her use of complaining tactics since she separated from Mr E, as detailed in the judge’s current judgment, led him to describe her as “an accomplished pupil of Mr E” [131]. The incident when M behaved vindictively with CN was redolent of the E household and worrying. It will be remembered that the judge also found that her dishonesty was pervasive and not merely reactive to a given situation such as the proposal that A should be adopted [165], giving examples which substantiated this assessment.
  1. F could not be relied on to curb the excesses as he had known of M’s inappropriate activities and furthermore had not been entirely candid himself in ways which the judge described. The judge also found him to have very poor impulse control and to have an assertive wilfulness about him as well as a problematic way of approaching authority including social services. The wider context was that F had not played a full role in the upbringing of his other four children and had an extended history of criminal behaviour and of taking Class A drugs, albeit that in more recent times he had not been convicted of any offences and had confined himself to cannabis.
  1. The judge’s assessment of the couple’s relationship was that they were deeply loyal to each other against the world, viewing the world of authority with great suspicion and sharing a disregard for the truth and integrity of conduct [54]. It will be recalled that he referred to their “characteristically toxic reaction” when matters did not please them as they probably would not at times [177] and said that they were “controlling and wilful” when challenged on some of the distorted elements of their world view or faced with a refusal to be compliant [196]. Commenting that there was a high probability that F would not separate from M in any meaningful sense in order to bring up A alone, he said that “their mutual tendency to lie and deceive is so profound and effective that there would be no way in which the situation could be effectively monitored and A safeguarded” [199].

 

 

You may, like me, still be at the  ‘it is all pretty unsavoury, but am still not sure it crosses threshold and results in adoption, because it still boils down to being mum is a lying liar’ point

 

Black LJ presses on

 

  1. Counsel for M submitted that non-medical risks of the sort identified by the local authority and the judge were not what the Children Act was driving at. However, I agree with counsel for the local authority who submitted that it is a question of degree. The judge was best placed to assess the situation as a whole and to make the necessary value judgment about whether the threshold criteria were established and whether a care order was required. Somatisation might not have been an active problem for M in recent times but the same could not be said of her other maladapted behaviour and the judge was entitled to take the view that he would have to proceed upon the basis that there would continue to be problems. The emotionally harmful effects of maladjusted behaviour, albeit it may be said that they were in a more extreme form, had been amply demonstrated in the course of AE’s case. That the judge had made the link with this can be seen from his remark at [155] that the “highly undesirable isolation of the E household comes to mind”.
  1. It was argued on the parents’ behalf that the risk/harm was not sufficiently immediate. No doubt it could be said that A, at her present age, would not be old enough to appreciate the difficulties in her parents’ behaviour. However, a child’s emotional and social development begins from the earliest stages whether he is conscious of the influences upon him or not and, as the social worker said in her statement (C44), the actions and behaviours of parents can have a long lasting effect on children from an early age. Furthermore, this was not a case in which there appeared to be any realistic hope that things would change in future and a placement of A at home followed by a later removal into care would import a danger of more emotional damage plus even greater difficulties in finding a suitable permanent placement.
  1. In short, the catalogue of problems identified by the judge went beyond the routine; the problems were undoubtedly more than commonplace human failure or inadequacy. They were also of long standing and had not only manifested themselves in response to the intervention of this local authority. There is no doubt that the judge was entitled to take the view that any strategy to manage the risks would have to go beyond the safeguard of the watchful eye of the general practitioner and would need to involve social services. The parents needed to have the capacity to engage with professionals to ensure that A was safe from harm and there was ample evidence on which the judge was entitled to conclude that they would not be able to do this.

 

 

Nope, I’m still with the parents on this. The two other Judges basically came down to saying that the trial Judge could not be said to have been plainly wrong, though hinting that they might have reached a different conclusion, and the appeal was refused.

 

My gut feeling, and of course seeing the full case and hearing all of the evidence is an entirely different affair, is that on the headlines of what is alleged to have given rise to threshold, I don’t believe threshold is met. But I am wrong, because the Court of Appeal have decided otherwise.

 

I don’t think we have seen the last of risk of emotional harm as a topic ripe for litigation and clarification.

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Take my breath away

Posted on November 16, 2012 by suesspiciousminds

A discussion of A Local Authority v A mother and others 2012    (which has to be the most anonymous of anonymisations I have seen to date… I  almost wish they had called it  Some organisation versus Someone 2012  – or  Applicant versus Respondent 2012, you can’t get much more anonymous than that)   – let’s call it “the Asthma case” so that we can remember it.

 

 

The case can be found here

 

http://www.bailii.org/ew/cases/EWHC/Fam/2012/2969.html

 

 

It is a High Court case, dealt with by the Honourable Mr Justice Peter Jackson (of whom regular readers of this blog will know that I have something of a brain-crush on)

It is an interesting one  – the child in question is nine, and has had an extensive history of medical treatment and interventions arising from her asthma

 

  1. The circumstances relating to J are highly unusual. She suffers from asthma, which has since her removal from her parents been well controlled by common basic inhaled steroid medication (Seretide) and occasional use of an inhaled bronchodilator (Salbutomol). Her asthma does not currently impinge on her daily life to any significant extent, although she had one hospital admission for two days in March 2012 for exacerbation of asthma following an infection. She does not suffer from any other life-limiting conditions. Her regular clinical reviews are all clear. Her attendance at school has been excellent and her participation has been full, in the physical and social aspects of school life as well academically. She is currently a well child physically, and there are soundly-based professional hopes that her current medication can progressively be reduced. Asked how she was in July 2012 by the jointly-instructed medical expert Dr H, J said she was ‘much better now’.
  1. A year ago, before her removal from her parents, J’s apparent health status could hardly have been more different. Her asthma was uncontrolled, despite receiving the most extreme treatments available. She was on intensive treatment to combat reported nocturnal desaturations (reduction in blood-oxygen levels). She had also suffered a number of reported Apparent Life-Threatening Events (ALTEs) while in the care of her parents.
  1. J, aged just 8, then described herself as ‘a very poorly little girl’. This is not surprising, because since she was under a year old she had been under continuous medical care and her condition had baffled and defeated the efforts of the country’s leading specialists, despite every conceivable strategy to control her asthma and to diagnose the cause of desaturations and ALTEs. None of the three specialists who gave evidence had encountered a child who has had more varied or intensive treatment.
  1. J’s medical records spanning 8 years run to over 4500 pages (12 lever arch files). The history is set out in full and uncontested detail in the reports of Dr H, referred to above, and Dr C, referred to below. Any summary is bound to be incomplete, but it must include:

A Specialist care

J has had the following care:

  • Primary: her GP
  • Secondary: her local hospital, under Dr O, since September 2004
  • Tertiary: the leading regional hospital, under Dr C, since October 2006
  • Quaternary: the leading national hospital, under Professor B, since January 2007.

B Hospital admissions

Between 2005 and 2011, in addition to countless routine hospital appointments

  • J was admitted to hospital over 50 times, ranging from overnight to a three-month admission in April 2010.
  • these admissions included 22 by ambulance, frequently at night.

C Medical examinations

J has been assessed or examined during planned reviews or emergency admissions by

  • her GP
  • a Paediatric Dietician
  • a Consultant Paediatric Cardiologist
  • a Consultant Child & Adolescent Psychiatrist
  • a Consultant Paediatric Neurologist
  • a Consultant Community Paediatrician (Dr O)
  • a Clinical Psychologist
  • a Consultant Ear, Nose & Throat Surgeon
  • specialist Respiratory Nurses
  • a Consultant in Paediatric Respiratory Medicine (Dr C)
  • two further Consultants in Paediatric Respiratory Medicine at leading specialist hospitals
  • a Professor in Paediatric Respirology (Professor B)
  • a Consultant in Paediatric Intensive Care, Respiratory and Sleep Medicine (Dr H, providing an independent overview for these proceedings)
  • many specialist Registrars locally and across the country
  • numerous other doctors not listed above

D Intensive medical treatment

For her asthma, J’s treatment progressed rapidly through the recognised stages of asthma treatment, in accordance with the British Guidelines on the Management of Asthma, and then beyond those guidelines. The following are prominent among the many drugs that she has been given:

  • inhaled bronchodilators (Salbutomol)
  • inhaled steroids (Seretide)
  • oral steroids (Prednisolone)
  • eventually, unlicensed drug treatments for a child of her age:
    • Omalizumab (Xolair) by highly distressing monthly intramuscular injection
    • Triamcinoline, an intramuscular steroid
    • Methotrexate, an oral steroid to suppress her immune system
    • Terbutaline (Bricanyl), delivered subcutaneously via an infusion pump visibly attached to the body for four months prior to her removal from the parents

For her reported desaturations, J had since 2006

  • slept wearing a positive airway pressure face mask (BIPAP)
  • slept with an oximeter (blood/oxygen level monitor) attached to her toe
  • had a large oxygen concentrator at her bedside

E Tests

J has had

  • sleep studies at three hospitals
  • blood tests and sweat tests
  • an echocardiogram, an ECG and a CT scan (whilst sedated)
  • a barium swallow
  • a bronchoscopy (under general anaesthetic)
  • an ENT investigation, leading to removal of her adenoids

F Side effects

The physical risks from this escalating treatment were substantial. For example:

  • Steroids can cause weight gain and change in facial appearance, slowing of growth, adrenal suppression, and in the long term high blood pressure and diabetes
  • Methotraxate is used in chemotherapy. It carries the risk of nausea, severe infection, liver or renal damage, gastro-intestinal upset and suppression of bone marrow; it requires weekly hospital blood testing to check blood count
  • General anaesthetics carry their own risks

Fortunately there is no evidence that J has suffered lasting physical side-effects, but it cannot be known that she has not been affected in some way in the longer term.

G Pain and suffering

J’s overall treatment is described by Professor B as having been invasive and unpleasant. She was often extremely frightened and sometimes had to be held down. She developed needle phobia. The distress caused to J by the Xolair injections was such that the nursing staff became so concerned that they asked for the treatment to be discontinued, which it was.

H Emotional, psychological and social consequences

J has been profoundly affected by her experiences. Writing this year, an educational psychologist describes her as ‘a youngster who is the product of her life’s experiences which until very recently have been those of a child with a life threatening condition requiring considerable accommodation to her medical needs by J herself and all those in contact with her.’ During each of her three years at Infant School her attendance record was just 55-60%. A child with no apparent learning difficulty, her spelling and reading is delayed by two years or more. Her social development has also suffered severely. She adopts an adult style of conversation, speaking with knowledge and fluency about her medical condition, which until recently has been a fixation for her. She does not relate well to other children, and has had no friends. Dr H described the amount of medical intervention as being comparable to that with a child with leukaemia. He said that J has had ‘a very, very stressful life’.

  1. In the light of the above, it is sad and indeed shocking to record that there is now a firm medical consensus, ostensibly accepted by the parents during the course of this hearing, that most of the treatment that J has received down the years has been unnecessary.

 

 

 

What happened, eventually, is that one of the doctors in the case alerted the Local Authority and recommended that J be placed in foster care, because he was of the view that the extreme treatments this young girl was having were not required by her condition and that her being away from the parents might demonstrate that.

 

To an extent, they did – in foster care, her asthma condition was entirely controlled by the same twice-daily administration of steroids through an inhaler as the parents had been told to give the child.

 

On the face of it, this looked like it might be a factitious illness case (we don’t call them Munchausen’s Syndrome any more, that being rather tainted, and we never did call it the correct name which was Raspe’s Syndrome  – as Munchausen was invented by Raspe and is a fictional character, although actually there’s some doubt as to whether it is a syndrome at all, rather than just being a small subset of behaviour… end of sidetrack)

 

But the thrust of the case and the medical evidence  rather than being whether the girls symptoms were being faked, eventually turned on whether the parents were actually giving this very poorly young girl the twice a day inhaler that she needed. Straightforward, though particularly unusual, neglect

 

  1. The LA’s case, in reliance on unanimous medical opinion, is that the parents failed to administer J’s steroid medication (Seretide and possibly also Prednisolone) to her, either properly or at all, and that this explains why her asthma remained uncontrolled for so long. It also alleges that the parents have misrepresented and exaggerated descriptions of J’s desaturations and ALTEs.
  1. In their written evidence, the parents denied any shortcomings in the way they have managed J’s care. Faced with her statement about not having a purple inhaler, they said that they administered the Seretide to her morning and night while she was asleep. During the hearing, they then admitted that on a significant number of occasions (a quarter, M thought, though F thought fewer) they did not administer steroids and that there were other times when they did try but when J would not accept her medicine. They also stated on the first day of the hearing that they were giving half the prescribed dose of Seretide (i.e. one puff twice a day rather than two puffs), saying that this was as a result of a misunderstanding. They now say that they accept the medical opinion that their failure to administer the correct doses regularly was the cause of J’s uncontrolled asthma.
  1. As to the desaturations and ALTEs, the parents say that these were real and frightening events. Insofar as they may ever have mishandled them, they point to the huge stress of looking after such a sick child, latterly with a new baby in the household. M in particular is described as having been permanently exhausted.

 

 

 

On this key issue, the Judge determined that the parents had not been giving their daughter her medication and that this is what had led to her asthma being so uncontrolled and problematic

 

  1. The evidence in relation to J’s apparently intractable asthma is clear. Over 95% of sufferers have their asthma readily controlled by the use of common safe and effective remedies such as Salbutomol (a reliever of symptoms) and Seretide (a preventer of symptoms). In the remaining number, half are resolved by ensuring compliance with the drug regime and improving inhaler technique.
  1. The probable explanation for J’s uncontrolled asthma is simple. As Professor B put it, there is a strong argument that very little steroids of any kind were being given, in the light of the fact that her asthma has for the last year been controlled by two puffs of Seretide twice a day, and little else.
  1. Dr H considers that lack of adequate Seretide led to poor asthmatic control, and that it was tantamount to no anti-inflammatory drug being delivered to J. Had it been delivered, the escalation of treatment that took place over the years would not have been expected. There has been no change in environmental factors to explain the change in J’s health. The only other explanation for her presentation now is that she has severe asthma that is coincidentally in remission, a prospect that cannot absolutely be dismissed but is remote.
  1. Dr C considers that J cannot have been given her oral Prednisolone either, as this would in her view have delivered a substantial dose of steroid, which J cannot have been getting. In this she differs from Dr H. I do not find it possible or necessary to resolve this issue.
  1. The parents’ account is that they did their best to give J her Seretide (which she did not like) by giving it when asleep, and her Prednisolone by dissolving the tablet and administering it orally by syringe, rewarding J with chocolate for taking it. They missed some occasions, and J sometimes refused, but they honestly thought they were doing what was required and using the required doses.
  1. It was at first thought, including by Professor B, that evidence about prescription uptake strongly demonstrated a gross underuse of Seretide and Prednisolone. On closer inspection, it shows an overuse of Salbutomol and a somewhat lower uptake of the steroids than would be expected, but not such as might lead to any definite conclusion. Likewise, the amount of drugs discovered in the home after the children’s removal does not suggest hoarding.
  1. There are a number of possibilities in relation to the prescription evidence. It is on the face of it not inconsistent with the parents’ evidence that they were giving J the quantities that were dispensed, at the level they thought was being prescribed. Alternatively, the parents may have disposed of unused medication, something that they deny.
  1. Taking the evidence as a whole, I accept the unanimous medical evidence that J was not receiving any Seretide. My findings go further than the parents’ concessions:

(i) I reject their case that they were routinely giving J Seretide while J was asleep, a convoluted and inconvenient procedure.

(ii) I do not accept that they genuinely believed that administration of Seretide to a sleeping child would be effective. Any reasonably competent parent would realise that this could not possibly be so, and M, as a nurse, would know that it was absurd. I do not accept that the parents learned to do it by watching nurses administer a different drug (Salbutomol) during sleep, or that they were encouraged or allowed to do so themselves; if that happened, it can have been on no more than an insignificant handful of occasions.

(iii) The fact that the parents never spoke to anyone about a practice of administering drugs to J in her sleep, even remaining silent when J’s inhaler technique was being checked, makes it highly improbable that they were in fact doing it.

(iv) I accept the evidence of Dr C that both she and the nurses would repeatedly reinforce the need for good inhaler technique to M and that the parents knew that J needed a good dose of steroids every day.

(v) I do not accept that the parents genuinely thought J should be on one puff of Seretide twice a day, when she had been prescribed two puffs for more than two years. The fact that some letters and labels described the dosage in different ways did not in my view mislead the parents; they are now relying on it after the event. If there was any doubt about whether the parents know the correct dosage, it is firmly dispelled by Mrs H’s evidence about her conversation with M on 10 November 2011.

(vi) M is unlikely to make careless mistakes about J’s prescriptions. She was punctilious with the school about J’s medication, and took a zero tolerance approach to any stepping out of line on their part.

  1. My view of the parents’ evidence about Seretide causes me to doubt that they administered Prednisolone in the way that they described (orally by syringe, rather than simply dissolving it in J’s breakfast), but I can reach no clear conclusion about this. At all events, I find that she was probably receiving considerably less Prednisolone than was being prescribed:

(i) M understandably did not like the use of steroids.

(ii) J did not like taking her medication, and the parents are both notably ready to defer to her.

  1. Insofar as the prescription records show an inflow of steroidal medication into the home, I conclude that it cannot have been effectively administered to J. The medical opinion is to this effect, and I accept it.
  1. My assessment of the parents is therefore that they are not reliable witnesses in matters relating to J’s health, either in relation to the administration of medication, or in relation to the management of J’s acute episodes. Their evidence about asthma treatment has evolved in response to the case as it has developed. The concession that ‘only one puff’ of Seretide was being given was made on the opening day of the hearing. Their evidence about J’s supposed ALTEs is, I find, exaggerated and unreliable in its detail. They have both given unreliable descriptions of J’s condition to the school and to the emergency services.

 

 

The final part is what lifts the case from being very fact specific  (I’ve done an insane amount of care proceedings in twenty years of practice, but have never come across one that arose from parents not giving their child asthma medicine  – some that come close on children with naso-gastric tubes for feeding perhaps) to one of broader interest.   (the underlining is my own, for emphasis)

 

  1. My final observation is that each of the doctors recognised that there are lessons to be learned from J’s case. Paediatricians are conditioned to trust parents, particularly where a child has a genuine medical condition. That instinct was strong in this case, despite indications that it needed to be examined. Dr C had concerns about the reliability of these parents as long ago as 2008 but, having taken advice from her child protection lead, she did not pursue her doubts, a decision she regrets. The doctors will form their own conclusions, but those may include the following:

(1) Faced with a possible conflict of interest in circumstances involving serious consequences, the preservation of a working relationship with parents cannot take precedence over the interests of the child.

(2) The principle of diagnostic parsimony (c.f. Occam’s Razor) proposes that simple explanations for medical conditions are exhausted before complex and unusual treatments are attempted.

(3) Fragmentation of responsibility between different hospitals carries the risk that the whole picture is not seen and understood by anyone – in J’s case, no proper meeting was held until November 2011, and even that did not involve the LA.

(4) Where dilemmas of this kind arise, involving social as well as medical issues, doctors and schools should not be reluctant to call for a comprehensive assessment that can only be carried out by the ordinary child protection services.

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Rule 16.4 Guardians have a duty to take the initiative

Posted on November 9, 2012 by suesspiciousminds

A discussion of the Re G  Court of Appeal decision and what it means for Rule 16.4 Guardians and those representing them.

 

The case can be found here

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1434.html

Bit of explanatory background – in private law proceedings (i.e where a mother and father are in disagreement about the arrangements for their child and ask the Court to resolve things) sometimes the Court appoint a Guardian (effectively a social work qualified professional who is independent and doesn’t work for Social Services)  to represent the interests of the child. This is called a Rule 16.4 Guardian, or often just a 16.4 Guardian.  (To confuse things still further, a lot of people still call them 9.5 Guardians, as that was what they used to be called and people aren’t good at change)

 

It generally happens in really tricky cases where the Court is feeling that some independent presence would be helpful to defuse the situation.

 

 

Now, Rule 16.4 Guardians are employed by CAFCASS. Over recent years, CAFCASS have been more and more stretched by demand and have responded to this by directing their individual Guardians to do less and less on individual cases, so they can spread the larger number of cases across the same number of Guardians (by each taking on more cases, but doing less work on each)

 

At the same time, the solicitors representing Rule 16.4 Guardians are under increasing financial pressures to do less on the case too, because they get fixed fees, and the more time they spent on the case, the less profitable it becomes (often getting close to break-even or worse)

 

So, that’s the context.

 

The facts of this case are problematic – it is a case that has been plagued by litigation and appeals, and has already been up to the  Appeal Court twice and the House of Lords once. It relates to a father who provided gametes for a lesbian couple to have children, and there was then a falling out about whether he was supposed to play a part in the children’s lives (as he wished) or whether his work and involvement was over at the point the gametes were handed over (as the two mothers wished)

 

 

It is not terribly surprising given the massive conflict in this case that a Rule 16.4 Guardian was appointed.

 

What probably was surprising, both to the Rule 16.4 Guardian and those representing her was that they took a bit of a  kicking from the Court of Appeal. 

 

And the Court of Appeal set down, probably for the first time, what the expectations of a Rule 16.4 Guardian is, and it turns out that the Court expect them to ensure that the case is brought back before the Court if problems start to arise.  Indeed, the phrase “a clear duty to take the initiative” is used.

 

This case well illustrates the difficulties that courts presently face, and will more frequently face in the future, when the parties are unrepresented, particularly in a case as complex as the present. What is the duty of the rule 16.4 (formerly rule 9.5) guardian in such circumstances? There is no doubt that the burden on the judge to avoid legal misdirection and to ensure a fair outcome is magnified in such circumstances. At a minimum the children’s guardian, as the only party with the benefit of legal advice and representation must also be vigilant to avoid procedural or other unfairness to one or other of the unrepresented parties.

 

 

 

  1. The order of October 2010 created a common endeavour, the parties to which were the parents, the guardian, Dr Asen and the court. The duration of the joint endeavour was 12 months. If all went according to plan the parties would reassemble a year later to decide the future. If the joint endeavour did not run its intended course it was extremely important for the parties to decide swiftly the immediate future in the light of the unexpected development. The longer the delay the more difficult it would be to repair the breakdown. Absent agreement the court had to be re-engaged. CG had no incentive to return to court. CW who had every incentive failed to do so. In my judgment in the particular circumstances of this case, the guardian had a clear duty to take the initiative. He knew that CW had no advice or representation. He knew that she was appealing to him to act. Perhaps he did not know, but ought to have known from the history, that the maintenance of a relationship between the children and CW’s family had been declared both by the appellate courts and by Dr Asen to be of first importance. He also knew that Dr Asen was not a party, but an expert, whose continuing expertise was both crucial and available.
  1. It is not fanciful to speculate that had the guardian applied to the court for urgent directions in December 2010 there would have been options that were no longer there 16 months later. Had CW advanced her application as modified on the 19th April 2011, to the judge in December 2010 surely it would have succeeded. But was the delay such as to render it futile? The importance of restoring rather than abandoning relationships was obvious. The advice of Dr Asen was crucially required. Had CW been represented at the directions hearing in January 2012, surely the involvement of Dr Asen would have been canvassed. I do not understand why the guardian did not apply for a direction that would ensure that his advice would be available to the court at what was to be a final hearing.
  1. I emphasise that there can be no criticism of the court. As soon as the judge was made aware of the situation he acted decisively to bring about an early hearing.

 

One can see why the Courts want to put down such a marker, particularly as we move into a future where more and more of these intractable private law cases will have only one legally represented party (the rule 16.4 Guardian) who will understand the process and how to get hearings listed.

 

But unless this is accompanied by some change in the way CAFCASS ask 16.4 Guardians to run the cases, and the LSC funding the representation of 16.4 Guardians in such a way that it is open to the solicitor for the child to be proactively case managing the case rather than simply representing the child, I don’t see it working.

 

In fact, I think a telephone call asking a solicitor whether they will represent a 16.4 Guardian might now cause a mild shiver down the spine of whether this is a case that is economically worth taking at all. 

 

We already know, for example, that solicitors representing 16.4 Guardians come under huge pressure from the Courts to be the sole funder of expert assessments, when the LSC (who pay for them) won’t allow that, and leaving them arguing with a Judge or being stuck with huge expert bills to pay from the solicitors own pocket. 

And if you’re now going to have to run around after unrepresented and warring parties to make sure the case is on track and if not whip it back into Court or face blame, it becomes pretty unattractive to represent even the most charming and personable of Guardians.

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it cannot be right for the Court of Appeal to be asked to case manage cases retrospectively.

Posted on November 5, 2012 by suesspiciousminds

A discussion of Re G (A child) 2012 EWCA Civ 1377

This is a recent Court of Appeal decision (and in light of my recent grumblings about the delay between summaries of decisions and the full judgments being made available, I note that the decision was made on 31st October and the judgment was available by 5th November, so kudos to those involved. 

Mild grumble,  not aimed at this case specifically we seem to be getting a raft of  RE something (a child)  2012 decisions, and a more descriptive title might not go amiss. Otherwise we will have nine Re C (a child) 2012’s and no easy way of distinguishing them save the case number, which is slightly cumbersome.)

 

I tread carefully on this, because I know many, though not all of those involved on a professional level, and have a great deal of respect for all of them. As luck would have it, I don’t really have to criticise any of the people involved.

 

The title is taken from a quotation from the Judgment, but was coined by Mr Adam Smith of counsel, and is a phrase which I am as taken with as Munby LJ clearly was. At the risk of increasing his ego, Mr Smith is a splendid fellow.

 

It goes to the heart of this case, and is the important principle that lifts it from being a very case-specific decision. 

 

The judgment can be found at

 

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1377.html

 

 

The appeal essentially related to an aunt, who was putting herself forward to be a carer for a child. The aunt had certain disabilities and it was decided at an interlocutory hearing that the assessment of the aunt’s direct care of the child should take place at the mother’s home (that being where the child was living) with certain modifications taking place.

 

  1. By February 2012 the position had been reached that assessments were being awaited on the mother (who at that stage, subject to assessment, was supported by the children’s guardian as a potential carer for T) and the aunt. There was an issue as to where the aunt’s home assessment with T was to take place. It was resolved by Judge Coates at a hearing on 16 March 2012. I quote from her judgment of 9 October 2012:

“In March it was argued that [the aunt] needed to be assessed in a home environment of her ability to care for T – this court determined it should take place at [the mother’s] home and required the local authority to put in handrails to accommodate [the aunt’s] difficulties. [She] argued assessment at the maternal grandmother’s home and forcibly argued the position and I determined where the assessment should take place.”

The order made by Judge Coates was in the following terms:

“provided the appropriate handrails are fitted to [the mother’s] property the assessment of [the aunt] will take place only at [the mother’s] home and not the home of the maternal grandmother.”

The assessment never took place. Judge Coates explored the reasons why at the hearing in September 2012. As she explained in her judgment:

“I have heard evidence as to what happened thereafter … the evidence of what happened when builder came to do the adaptation that [the aunt] sabotaged the attempt to put in handrails and therefore her assessment could not be progressed.”

 

 

Certain findings were made, having heard the evidence as to whether the aunt had ‘sabotaged’ the assessment being able to take place in the mother’s home, and whether she was in a position to provide care to the child.  At final hearing a Care Order was made, the appeal immediately lodged, and a stay granted whilst the appeal was dealt with.

 

The Court of Appeal dismissed the majority of the appellant’s grounds, without difficulty. They were clearly matters which the Judge had heard evidence on, and that the Judge had assessed the evidence and made perfectly proper conclusions.

 

 

  1. That takes me on to the second of Ms Phil-Ebosie’s complaints, which goes to what are said to be various errors on the part of Judge Coates in relation to the aunt’s assessment. It is said, first, that Judge Coates failed to consider whether the assessment she directed on 16 March 2012 was compliant with the 2010 Act; second, that she was wrong to find that the aunt had sabotaged that assessment; third, that she failed to appreciate that, in the absence of such an assessment, she lacked sufficient evidence to reach a decision that the aunt could not care for T; and, fourth, that she was wrong to refuse to permit a risk assessment of the aunt in the light of the outcome of the fact-finding hearing. In short, it is said, Judge Coates should not have proceeded to a final determination of the care proceedings without first directing further assessment of the aunt. The aunt, says Ms Phil-Ebosie, has not been properly assessed.
  1. In my judgment there is no even arguable merit in any of these complaints.

 

….

 

  1. The two final parts of this complaint are linked, since both assert that Judge Coates’s determination of the care proceedings was premature, given the need, so it is said, for further assessment of the aunt. There is, in my judgment, no arguable basis of challenge on either point. It was for Judge Coates, as the judge managing the litigation and conducting the final hearing, to determine what assessments were going to be needed for that hearing and then, if the point arose again during the final hearing, to satisfy herself that she had all the evidence she needed – all the assessments she needed – to determine the issues fairly, justly and in accordance with the law. That is an evaluative task that the law imposes on the case management judge. Indeed, it is an absolutely central task of the case management judge, for it may well determine the shape of the final hearing. But this court can intervene only in limited and well recognised circumstances: only if (I put the matter generally) the judge has erred in law or in principle, has denied the applicant a fair trial or has come to a decision that is “plainly wrong”. In my judgment, there is simply no arguable basis for any such complaint here. This was the decision of a very experienced judge who had available to her, moreover, a mass of expert evidence, including evidence of various assessments of the aunt. I find it unsurprising that, in the circumstances she described in her judgment, Judge Coates should have concluded that further assessment was unnecessary as well as being inconsistent with T’s need for a settled placement without further delay.
  1. It is essential that appellate courts do not too readily interfere with seemingly sensible and appropriate case management decisions of judges who, in the nature of things, are likely to have a much better ‘feel’ for the case than an appellate court can ever have. Those seeking to appeal such decisions must heed not only the well-known decision of the House of Lords in G v G (Minors: Custody Appeal) [1985] 1 WLR 1 WLR 647 but also what ought to be, but I fear is not, the equally well-known decision of the House of Lords in Piglowska v Piglowski [1999] 1 WLR 1360, and in particular the speech of Lord Hoffmann.
  1. The third, and final complaint, is that Judge Coates failed to identify clearly in her judgment what the risks were of placing T in his aunt’s care and why those risks could not be managed without his removal from her care, just as she failed, it is said, to identify which of T’s emotional and other needs the aunt could not meet. For her part, Ms Lee submitted that Judge Coates also erred in giving insufficient consideration to the impact on T of separation from the birth family at this stage in his life and provided insufficient grounds to justify approving the plan for adoption. I do not agree. The judgment more than adequately explains Judge Coates’s concerns and the basis of her decision. There is, in my judgment, no arguable basis for any complaint that Judge Coates erred in her evaluation of the relevant factors or that she failed adequately to explain her reasoning. Were this court to interfere here it would be doing the very thing that Lord Hoffmann has emphasised it must not.

 

 

It is always pleasing to this writer to see the Court of Appeal honestly and rigorously applying the principles of Piglowska and G v G, which sometimes (in my humble opinion) are given lip-service before the appellant Court replace a Judge’s conclusions with their own.

 

The Court of Appeal were with the appellant on one point :-

 

  1. The first alleges breaches of various duties arising under the Equality Act 2010. It is common ground that the aunt is disabled within the meaning of section 6 of the Act. What is said is that the local authority was in breach of its duties under sections 20, 29 and 149 of the Act. The facts relied on are common to all three alleged breaches: the aunt’s complaint as spelt out by Ms Phil-Ebosie in her skeleton argument is that “the local authority refused to assess her capacity to care for T at her own home”, despite it being adapted for her needs, and “asked [her] to undertake a capability assessment at a venue” – the mother’s house – “that had not been adapted to her needs.” The proposed installation of handrails at the mother’s house was, she says, a “token gesture”, given that the aunt’s house is fully adapted with a range of equipment to assist her everyday life.
  1. This is, in my judgment, quite unarguable as a ground of challenge to Judge Coates’s order. I am not concerned with, as it were, a challenge by way of judicial review to some decision of the local authority. The matter before me is a challenge to the order made by Judge Coates on 9 October 2012. Moreover, the factual premise which underlies this ground of complaint is simply wrong. It was Judge Coates, exercising her judicial discretion in the context of the pending care proceedings, and not the local authority, who decided both where the assessment was to take place and what adaptations to the mother’s house were required. So the challenge, if there is to be one, must be to Judge Coates’s decision.

 

 

The Court of Appeal then looked at whether that case management decision was appropriate, and whether the challenge stood up to closer scrutiny.

 

 

  1. Judge Coates was plainly justified in finding that the necessary assessment was, from T’s point of view, better conducted away from the maternal grand-mother’s somewhat dysfunctional household and on territory that was more familiar to him. Judge Coates was aware of the need to accommodate the aunt’s disability and did so, in what seemed to her, having heard argument, to be the appropriate way, by directing the fitting of handrails. Even if more was sought by way of alteration to the mother’s house (and it is far from clear it was) there is, in my judgment, no sensible basis of challenge to the order which Judge Coates made on 16 March 2012 – an order which, it is to be noted, was neither challenged at the time nor subsequently. Moreover, it is apparent that the detailed arguments under the 2010 Act which the aunt now seeks to put forward were deployed for the first time at the hearing before me on 12 October 2012. I do not criticise Ms Phil-Ebosie but this is no way in which to conduct care proceedings. As Mr Smith put it, and I entirely agree, it cannot be right for the Court of Appeal to be asked to case manage cases retrospectively.
  1. The finding that the aunt had sabotaged the assessment was a finding on a matter of fact on which Judge Coates heard evidence. Judge Coates was ideally placed to evaluate the evidence, including in particular the evidence of the aunt, and was plainly entitled to find as she did. This finding of fact is unassailable.

 

 

The Appeal was therefore refused.

 

The key issues from the case for practitioners are therefore that arguments about Equality Act issues have to be deployed when the case is being argued and before the decision is made, if they are to give winnable grounds for an appeal. Second, that if a case management decision is made that fundamentally devastates your case, you need to consider the appeal at that point and not wait for the final hearing for orders to be made on the foundations laid down at that interlocutory hearing.   And more broadly, that you can’t reserve your best arguments for the Appeal process, you have to lay them out before the Judge determining the case.

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So tired, tired of waiting, tired of waiting for you

Posted on October 29, 2012 by suesspiciousminds

 

 (A quick look at four cases that have been decided, but that I’m still waiting for transcripts of judgments on , and one that I’ve been waiting for for ages, and which turns out to be crushingly disappointing)

 

 

Not worthy of full blogs, until I see the full transcripts, because as lovely as summaries are, they do lose the subtleties of having the entire judgment to rifle through for gems.

 

But anyway, here are four up-and-coming interesting cases.  (and I am aware that the section 37 case – is it an abuse of process to make multiple ICOs pegging them on s37 directions when the LA haven’t made an application, went to the Court of Appeal last week, and there will be a judgment on that in due course. I blogged about that one previously here :-

 

https://suesspiciousminds.com/2012/08/31/ive-got-section-thirty-seven-problems-but-a-aint-one/   )       [And where else in legal blogging do you get both the Kinks and Jay-Z?  Can I get an encore/do you want more/cookin raw / with the Brooklyn Boy]

 

 

The first, and most recent is RE H (A CHILD) (2012)

 

CA (Civ Div) (Thorpe LJ, Lewison LJ, Hedley J) 26/10/2012

 

In this case, the LA were seeking final orders, and the trial judge instead made an Interim Care Order, adjourned the proceedings for three months, and directed a placement at a parent and baby foster placement. The Court of Appeal refused the LA appeal, and determined that the Judge was entitled to make those decisions, having weighed the negative and detrimental impacts on the child of delay against the potential positives to the child.  

The interest for me on this one will be  (a) how much of a bulwark it might be against the  “26 weeks is our aspiration, finish things off quicker” philosophy that is currently so “popular” and (b) whether it is actually authority for the Court having power to compel a Local Authority to place in a parent and baby foster placement. 

I assume that this, if there is such a power, derives from s38(6) and the Munby LJ decision in Cardiff, where he determined that a s38(6) placement didn’t have to be in a residential assessment centre, but could be with a family member.  

 

There are two schools currently, one is that the Court CAN compel a Local Authority to place in a mother-and-baby foster placement (or parent-and-baby foster placement) using the Munby decision, and the other is that the Court CAN’T compel, but generally achieves it by rejecting a plan of ICO and separation, and making the LA decide on the ‘lesser of two evils’ between that and having the child at home under ISOs. 

[I have to confess, that I am not at all sure which of those is right. My reading of the Cardiff case is that the Judge was stretching s38(6) very creatively to get an outcome that everyone in the case desired, but that it might reach snapping point to try to do it in a case that is actively litigious. But, there are passages in Cardiff that would support s38(6) being used to place a child whereever a Judge thinks fit]

 

I will be interested to see if the Court of Appeal grapple with that issue at all.  And of course, Cardiff was only a High Court decision, so if so, it will be Court of Appeal backing for that authority.

 

Next up

 

RE M (A CHILD) (2012)

 

CA (Civ Div) (Ward LJ, Lloyd LJ, Rafferty LJ) 22/10/2012

 

This one may fall entirely on its own facts, or it might be incredibly important, which is why I am so keen to read the full judgment and find out.  It was an appeal against a finding of fact hearing. The child was a few weeks old and had 8 separate bruises, left forearm, right arm and right thigh.  No explanations for the bruises were provided. The medical opinion was that they were non-accidental, in the absence of an accidental explanation. The Judge also found the parents evidence to not be credible and found that the injuries had been caused by them.

 

The Court of Appeal considered, on the brief note I have available, that this amounted to a reversal of the burden of proof and that it was not for the parents to explain how the injuries were caused accidentally, but for the LA to prove that they were caused non-accidentally.

 

[This quote from the summary, on a well known law reporting website, not necessarily an extract from the judgment itself – my underlining, to illustrate what seems to be a current direction of travel on medical cases]

 

“The medical evidence was that the marks were imprints or pressure marks from an object, but it was not possible to say what object or even what kind of object or how the pressure was exerted. Nor was it possible to say whether there was a momentary infliction of pain or a sustained pressure. The instant case was not one of a broken limb, or a cigarette burn or finger pressure. The court simply did not know what had happened or how. The judge had accepted the evidence of one of the doctors that in the absence of a benign explanation from the parents it could be concluded that the injuries were not accidental, but that conclusion did not follow, unless the burden of proof, which lay on the local authority on the balance of probabilities, was wrongly reversed and the parents were required to satisfy the court that the injuries were non-accidental. The judge had erred in finding that the parents had deliberately caused the injuries”

 

It may be that the case is entirely case and original judgment specific, but it would not surprise me, given the movement of the Court of Appeal in recent months away from “listen to the doctors” towards “the Court should actively contemplate the possibility that medical opinion is not always right, even if there is consensus” if it contains some important principles.

 

 

Next

 

RE C (CHILDREN) (2012)

 

CA (Civ Div) (Thorpe LJ, Munby LJ) 12/10/2012

 

Which involves private law, and a finding of fact hearing / change of residence hearing. The trial judge stopped the father midway through his evidence [after he had finished in chief] and gave judgment about the allegations the father was making, essentially dismissing them and the application for a change of residence.  The father appealed, in essence saying that had the Court heard mother’s evidence and he had the opportunity to cross-examine mother, his allegations would/might have been proved.

 

The Court of Appeal determined  (again, the quote is from the summary of the case, and not the transcript itself)

 

 

Given that the judge had heard F’s evidence in chief, it was entirely appropriate for him to direct himself as he did, namely that F had to establish on the balance of probabilities that there were compelling reasons why the children should be moved. It was the correct exercise of his discretion for the judge to say F had failed to meet that test. There was no error of law or approach either in his determining the standard by which F’s evidence was to be evaluated or to say he was satisfied that F had failed to prove any of the matters to satisfy the court that the residence order should be changed. It was a matter for the judge to determine the form of procedure to satisfy the welfare needs of the children and he was not obliged to listen to evidence if it was not appropriate and the process would be of no advantage to the children. The judge’s view was robust, but he did not exceed the ambit of his discretion. There was no error of law or misdirection in what he had said about the burden of proof or in taking the course that he did. He had taken a decision that was plainly open to him in all the circumstances and it could not be said that he was plainly wrong.

 

 This may be a gratefully received judgment for all Judges dealing with private law cases faced with clearly threadbare evidence for serious allegations, as they may be able to cut them short when it is clear they are going nowhere.  [I shall not speculate as to whether the number of such cases will increase or decrease as a result of certain political decisions about funding of family legal aid]

 

And this one

 

RE P (A CHILD) (2012)

 

CA (Civ Div) (Thorpe LJ, Lloyd LJ, Black LJ) 05/10/2012

 

 

Where essentially, very serious allegations of sexual abuse was made against the parents. The parents indicated that they did not seek the return of the child or any contact, and that on that basis, embarking on a judicial determination of the allegations was unnecessary   (as they were content for the Court to make a Care Order and did not seek any orders in relation to contact)

 

This is interesting, because it throws up what the role of the Court is – is it to get to the truth, or is it to determine the applications that are placed before it? If having a fact finding hearing doesn’t materially affect the order to be made, how can it legitimately take place on the one hand.  On the other, isn’t it important for the child’s care and future to know whether he or she was the victim of sexual abuse?

 

The Court of Appeal remitted the decision back to the trial judge who had decided not to have a finding of fact hearing, for further consideration – notably of the expert report that having resolution of this issue would be beneficial for the child and that future uncertainty would be detrimental to the child.  They also considered that the parents stance on contact might shift (and may have already shifted) and that it was appropriate for all of these issues to be taken into account.

 

 

 

And oh, I see that another one I was waiting for is now up

 

RE (1) B (2) H (CHILDREN) (2012)

 

[2012] EWCA Civ 1359

CA (Civ Div) (Thorpe LJ, Kitchin LJ, Dame Janet Smith) 01/08/2012

 

This case goes to the issue of having a finding of fact hearing where the suspected perpetrator had considerable learning difficulties. It is pertinent for me because I had similar issues come up with a potential intervenor in a case and the law wasn’t entirely clear on how the Court should decide whether to compel them to give evidence, and how the balancing exercise should be conducted.

 The trial judge in this reported case  decided not to go ahead with the finding of fact hearing, and was appealed.

 

Sadly, the appeal was unopposed, so the judgment is very short.  In effect, the Court of Appeal were persuaded that the role of a finding of fact hearing is twofold  (and this may feed into the case above)

 

The outcome of a fact finding investigation is not only to determine whether the section 31 threshold has been crossed, but also to provide an essential foundation for the trial of the welfare issues that lead to the management decision for the future of the child.

 

 

I can therefore suggest nothing further than the tack I used in my case, which was that the Court should weigh the article 6 right to a fair trial against the rights of the vulnerable person and would have to give leeway to the witness when considering confusion about dates, times, details and sequence of events where their learning difficulty impacted considerably

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One of these nights you’re gonna get caught, It’ll give you a pregnant pause for thought

Posted on October 29, 2012 by suesspiciousminds

 

 (Always nice to sneak a bit of Billy Bragg into the blog.  My favourite Billy Bragg line is, of course, from Sexuality  “I had an uncle who once played / for Red Star Belgrade”)

This is a discussion of the extraordinary case of A Local Authority v S & O [2011] EWHC 3764 (Fam)

 

http://www.familylawweek.co.uk/site.aspx?i=ed102837

 

You know that something is peculiar when a High Court Judge begins with Even by the standards of the Family Court this is a strange tale.. 

 

And he is not wrong.

 

 

Mr and Mrs S were a Nigerian couple, living in England. They wanted to have a baby, and heard of a fertility clinic in Nigeria, Port Harcourt.  They paid a lot of money to this clinic, and the mother had treatment there. She returned to the UK and had tests and scans with her GP, which confirmed that she was not pregnant. She rang the Port Harcourt Clinic, who told her that this was not unusual with the process and that she should come over.  She visited Port Harcourt and was sedated and then presented with a baby.

 

Mr and Mrs S returned to the UK with the baby.  On visiting their GP, the GP considered that the care of the baby was very good, but having determined that Mrs S had not been pregnant, was deeply troubled by the story of the delivery and contacted the Local Authority.

 

A DNA test was done, showing that the child had no biological connection to either Mr or Mrs S.

 

Care proceedings were commenced, it being apparent to the Local Authority that this child had been removed from birth parents and brought into the country and was living with people who had no parental responsibility.

 

The issue that fell to be determined by the Court was whether Mr and Mrs S had been deceived and hoodwinked by the Port Harcourt clinic, or whether (as the LA asserted) it was inconceivable (pardon the accidental pun) that they had fallen for this and that they had either fully known or simply turned a blind eye to the obvious truth that this had never been their baby.

 

 

Here are the contentious findings sought

 

“(vii)  Mr. S knew or ought to have known that Mrs. S was not pregnant as asserted.

(viii)  Mr. S knew or ought to have known that O was not their biological child.

(ix)  On a balance of probabilities, Mrs. S and Mr. S were complicit in the removal of O from her biological mother at or shortly after the time of her birth.

(x)  At the relevant date, O’s care arrangements had been based upon a fundamental deception to which Mr. and Mrs. S were knowing parties.”

 

 

 

Now, this is the bit I find significant, and appalling. As the DNA test had shown that this was not their child, Mr and Mrs S had no PR, and received no public funding. So, they were fighting to defend themselves against these highly damaging allegations and also seeking to care for a child who they had formed an emotional connection though not a biological one.   Whilst my gut instinct view of the allegations was that the LA were probably right, it seems to me manifestly wrong that Mr and Mrs S had no legal representation to fight this case, and it is one of those bureaucratic idiocies which makes me slightly ashamed to be British.

 

As luck would have it, a pro bono barrister came forward, Mr Nicholas Paul, and he clearly did an admirable job for his clients.

 

 

I think it is worth setting out the history of the matter given by the mother, as it is important in trying to establish whether this was a nod and a wink  “Oh, I’ll pay for ‘fertility treatment’ but we both know I’m actually buying a baby”  or whether the clinic was actually seeking to deceive naïve and desperate couples.

 

“I have been married to Simon S since 2002.  On 8 January 2011 I gave birth to O at God’s Gift Clinic Maternity in Port Harcourt, Nigeria.  The treatment started in December 2009 under Dr. Chineri Emica Precious who gave me a number of injections and tablets and capsules.

4.  In April 2010 I started to feel the symptoms of being pregnant such as bloated stomach and gaining of weight.  I returned to Nigeria in April upon Dr. Chineri Emica Precious’s request for a medical check-up and she confirmed that I was pregnant. 

5.  I returned to the United Kingdom and visited my GP, Dr. H, who was not convinced that I was pregnant in May 2010.  I asked her to reduce my blood pressure medication as I was now pregnant, but she declined until there was confirmation that I was in fact pregnant.  At this stage, my symptoms of pregnancy persisted.  I had another appointment with Dr. H in September 2010 where a body examination was done and she referred me to Homerton Hospital for a scan.

6.  On 16 October 2010 I attended Homerton Hospital for a scan and it showed no pulse or heartbeat from the baby.  This came as a great shock to me, bearing in mind what I was told in Nigeria, that I was pregnant.  I kept up my line of communication with Dr. Chineri Emica Precious in Nigeria, who assured me that it was not unusual for the baby not to be seen on the scan.  Also, I was reassured by the testimonies of others who had had the treatment before (my sister and a friend).

7.  I returned to Nigeria in October 2010 to see Dr. Chineri Emica Precious who informed me, conversely to what I was told in England by my general practitioner and scan results, that I was pregnant and she continued to treat me with injections and one big medication.  I assumed that this continued treatment was in order to maintain the pregnancy.  I had no reason to doubt her sincerity or expertise in this regard.

8.  In November 2010, Pastor B at my church in London, like other people around me, including my husband, asked me if I was pregnant as he saw that my stomach was bloated as if I was pregnant and I had gained a substantial amount of weight.

23  She continued at paragraph 13:

“In December 2010 I went to Nigeria for the yearly crossing over programme at the headquarters of MFM and later went to Port Harcourt.

14.  Soon afterwards whilst in Nigeria, I noted that I was bleeding from my back passage.  I recalled that when I was carrying E my previous pregnancy, that the baby and I were bleeding.  However, in that prior instance, the bleeding was internal and this tragically led to E suffering her disability, as this was not detected on the scan.

15.  In January 2011 during what I perceived to be the birth of O, I recall a doctor inducing labour through intravenous drip and I experienced what was labour, a very traumatic delivery and a baby was presented to me covered in blood as would have been normal in a delivery room.  I felt all the natural manifestations of labour and delivery and my baby, O, was presented to me in the manner described.  Subsequently, when both the Metropolitan Police and the Applicant suggested a DNA test, I fully cooperated and was not in any way concerned as to the outcome as I knew I had given birth to O.  I had named her as was customary and obtained a birth certificate for her.”

24  Paragraph 19:

“Since 21 March when we were informed of the DNA results that suggested that we were not the biological parents of O and she was removed from us, my whole life has been shattered and it was as if we had suffered E’s bereavement all over again.  In short, I have been depressed and traumatised.  We have struggled to maintain any level of sanity as I am now convinced that I have been a victim of a very serious fraud by those who have exploited my vulnerability and infertility for their own financial gain.  I had paid a total of 1.3 million naira (just under £6,000) to this medical practitioner at this stage for the fertility treatment.  I enclose for the consideration of this court an article in The Vanguard, a Nigerian newspaper, that clearly sets out in detail the type of scam that I have been a victim of.

21.  I have cooperated fully with the police and the Applicant in the course of their investigations into this matter.  As a family, we coped fully with E’s serious disability and maintained our composure and dignity throughout.  The fact that we have been exploited in this way and the consequent investigation, albeit legitimate, has dragged on and has been devastating for us as a family.  I categorically deny that we have been involved in any child trafficking, except to say that this is a tragic case in which we have been a victim.”

25  That ends the quote from her statement. They obviously had in fact filed an earlier position statement, I think without any benefit of legal advice, on 11 April.  In that they said this.  It was a joint statement produced by both Mr. and Mrs. S.  I read from it because it is of crucial significance:

“O was not deliberately removed from her parents in Nigeria.  She was brought into this country as I was made to believe that I gave birth to her as a result of the fertility treatment that I embarked on from December 2009.  During the treatment I went through gradual stages of pregnancy and was made to believe in the delivery procedure, under which intravenous drip and drugs were used to induce labour, that I gave birth to O.  My experience of the treatment and the testimony of others who had previously undertook the treatment built a very strong belief in me that O was my biological daughter, until the DNA test results concluded otherwise.  The strong belief in the pregnancy and birth experience led to O’s birth registration.  All due processes were followed to obtain travel documents for her to be brought to the UK as our legitimate daughter without any doubt.

The above beliefs were also responsible for us being so adamant that O was our biological child before we had the DNA results.  We complied throughout with the investigation in good faith with every assurance that the DNA results would vindicate us.  However, it was the DNA results that caused us to see ourselves as victims of crime or error.”

26  They carry on in similar vein, concluding in this way at paragraph six:

“Regardless of the DNA results, we genuinely love O as we would love our own child.  S, our nephew, has lived with us for over 11 years and we care for him and love him as our own child.  We would be heartbroken if the court allowed O to be abandoned into the hands of the social services to navigate her way through the care system.”

 

 

If what she says is right, and the clinic sedated her and gave her medical treatment intended to make her believe that she was in labour, and then presented her with a baby, then her ‘crime’ is really to have believed the clinic rather than her GP who was saying that she wasn’t pregnant.  You may think that she was gullible, foolish, perhaps even stupid; but that’s a distance from deceit and complicity.

 

 

The story seems utterly fanciful, however. A fertility clinic that goes to all the trouble of trying to make women believe that they have given birth as a charade for what is actually a straightforward sale of a baby? However…

 

35  Could this be a true story or is it an elaborate piece of invention?  On the face of it, the court’s first obvious and natural reaction to this very far fetched tale is to be highly sceptical, but for one crucial piece of further evidence.  It is in the form of a lengthy cutting from a newspaper, the Port Harcourt Vanguard, for 11 September 2011.  This is also available in fact on the internet.  Under the headline, “Baby Factories: how pregnancies/deliveries are framed”: “Vanguard’s investigation reveals more baby factories.”  There  appears a two full page article carried out by an investigative journalist which describes in elaborate detail the process largely described to me by the mother.  I shall read two sections from the article.  I have already read the banner headlines about baby factories and it contains a number of black and white photographs.  These passages are to be found in the article:

“Our findings reveal that the unpublicised native maternity homes use illicit means to procure babies for childless couples on the payment of huge amounts of money ranging from N750,000 to N1 million, depending on the sex of the baby.  We gather that twins go for about N1.5 million or more.  The delivery date depends on the baby seekers.  While some opt for a nine month period, some go for a fast deal of one month or two, also depending on the availability of the baby from the sources.  Investigations reveal that for those who go for a nine month period a pregnancy would be framed and a delivery date given.  The delivery date can be postponed indiscriminately based on the availability of the baby.  Their patrons are desperate women ranging from high society women, clergymen and women who most times hide the arrangements from their husbands.  Most of these centres are found in …”

36  It mentions three towns including Port Harcourt.  Then under the heading, “How Pregnancy and Deliveries are Framed” it reads:

“Investigations reveal that these clinics administer certain substances on the patients that form a sort of tumour in the womb of the expectant mothers, making them believe they were pregnant.  Occasionally, a movement is caused in the belly making it look as if a baby is kicking.  The women are warned not to go to any hospital or undergo ultrasound or any sort of scan as they would lose the pregnancy or baby in the process.”

37  It goes on in similar vein and it contains this passage further on:

“Further investigations reveal that when it is time for delivery another substance is administered on the woman which gives a false impression of labour.  Part of the growing tumour will come out through the vagina and it is cut to discharge blood and make it look as if there was an actual delivery.  A baby is then sneaked in and made to cry.  The woman is also made to believe she has been delivered of a baby.  In Precious Ogbana’s case, she told the reporter that when she had one of the babies it was recorded to a friend’s cell phone but she deleted the video a few days later.  She regretted deleting the stuff, fearing her husband would not like it, especially if the video got to a third party, adding that she went into labour and gave birth to the kids.”

38  There are a number of case studies set out in the course of that lengthy, double page article.  Having seen that article, there cannot be any doubt at all that this far fetched story is rooted most solidly in reality and that this kind of practice is common in certain parts of Nigeria.  I have described the process as a baby exchange.

39 So there can be no dispute now that the mother was indeed a participant in this elaborate scam but, as I said at the outset, the central question remains and has to be answered: was she a knowing and willing participant? 

 

 

 

The Judge then had to grapple with that central question, and reached these conclusions

 

50 How do I analyse the evidence to arrive at a conclusion in this mysterious case?  The following factors have guided my decision:

51  The mother is an intelligent woman who teaches at an adult literary college in London.  She is a God fearing practising Christian, as is her husband, to whom lying is complete anathema.  This factor has to count for something even in these cynical days in which we live.

52  The mother gave evidence to me at great length over two days and I found her to be impressive and unshakeable in relation to all important matters.  In all important respects, her versions both in writing and to the police have remained consistent.  In short, incredible though it seemed to me at the outset, by the end I was driven to believe her account.

53  By the same token, I found the husband, a responsible man in regular employment, to be a patently honest witness.  I do not think for a moment he would have gone along with knowingly assisting his wife in participating in a deception on the court. 

54  Both the mother and her husband have cooperated fully and willingly with the inquiry once they realised the circumstances of the arrival of the child and once they realised they were suspicious and they realised that these suspicions needed to be allayed.  They willingly took part in the two DNA tests. 

55  When conducting a fact finding inquiry, particularly one as strange as this, often the most important guide is to be found in the presence or absence of so-called “smoking guns”.  That is to say, factors which point to or are either consistent with or entirely inconsistent with one or other side’s version of the possible truth.  In this case, there are factors which, in my judgment, point inexorably to the conclusion that the mother is most likely to be telling the truth.  What are these factors?

56  The fact that during 2010 she went on visiting her GP, firstly to find out if she was pregnant and then to check whether she was and whether there might have been a mistake.  I find it to be unthinkable that she would have returned to the GP if she had knowingly become involved in this scam and after she had received negative tests in England.  To do so could only sensitise the GP to the possibility of something untoward happening when the child was eventually produced to the doctor later.  But that is precisely what did happen because the GP of course had the chance to examine the mother in the months preceding the so-called birth.  In my judgment, the last thing this mother would have done is to go back to the clinic to persuade the doctor to arrange a scan when she could only have known it would reveal nothing.

57  By the same token, why was the mother going backwards and forwards to Nigeria and seeing the doctor if she knew the pregnancy was an invention?  She would merely have gone out there in December, around the time of her expected delivery, and collected the child.

58  By the same token, it is unthinkable as I find that the mother would have produced the baby to the GP within three days after returning to this country if she had known the circumstances of her removal from her natural mother and Nigeria were highly suspicious or possibly criminal.  She produced the child to her GP in all innocence, expecting the GP to be delighted to be proved wrong.  Miss Watson, having to overcome this telling point, says that she took a calculated risk.  That, if I may say so, is a gross understatement.  It would have been sheer lunacy.  As Mr. Paul points out, there were other much less risky ways of proceeding which would have hugely reduced the risk of detection which, were she part of the scam, she must at all times have feared.

59  Then there is the short video clip arranged by the mother.  If there had been anything untoward going on which the mother realised, the video would have been set up and stage managed in a way which supported her having given birth.  In fact, it does nothing of the kind.  It merely shows the mother writhing in agony and a child lying in the vicinity, still attached to a placenta.  There is in fact no sign or real attempt to link the baby with the mother.  There is no sign of blood on the mother or indeed any sign that she had just given birth.  It would have been the easiest thing in the world to have linked the baby more directly with the mother to make it look as if she had just delivered.  Similarly, if this had been an elaborate deception, the camera would have had pictures of her arriving at the clinic and of the mother holding the baby etc., immediately following the supposed birth.  The video evidence is certainly excellent evidence of the scam disclosed by the newspaper article, but in my judgment it points away from the mother’s involvement.

60  I also think it is highly likely that, if the mother knew what had happened but nevertheless wanted to take her new baby to the doctor, she would not have gone armed with the camera and the clip ready to show the doctor the pictures if challenged.  In fact, the mother did not do so.  She only produced the pictures (potentially her best evidence if she was being deceptive) in response to questioning from the police and not as her first trump card and without being asked, as one would have expected.

61 All the mother’s actions, in my judgment, both in this country and Nigeria, are consistent with her evidence that she had no idea she was involved in this strange scam, designed to put together unwanted children with desperate, childless parents.  Her complete desolation when confronted with the reality, as attested to by both the police and the Guardian, further in my judgment supports her credibility.

62 What are the findings that I make based on this assessment of the evidence?  Firstly, most of the primary facts are agreed and not challenged.  Secondly, the mother was in a highly suggestible state, especially following the death of her disabled daughter at the end of 2009.  She is also, as the Guardian points out, immersed in a Christian religious environment where miracles are not regarded as impossible.  Thirdly, I am totally satisfied on an examination of all the evidence that this mother had no idea she was taking part in bogus fertility treatment, much less an elaborate and well tried system for selling unwanted babies to desperate parents in exchange for very substantial sums of money.  Fourth, both she and her husband were hoodwinked and are innocent victims so far as their involvement in these matters is concerned.  They neither knowingly participated in the wrongful removal of the child from her natural mother nor in the wrongful importation of her into this country. 

63 The highest it can be put, as I find it, is that the mother unwittingly took part in an unorthodox adoption process surrounded by an elaborate piece of play acting. 

64 Fifth, and for the avoidance of doubt, I find nothing concerning so far about the mother’s mental health any more than the general practitioner does or did.  It is perfectly plain the mother now fully appreciates what was going on and what she has been involved in.

65 Sixthly, on the face of it, the mother from what I know seems a good and experienced mother who has brought up her nephew impeccably and looked after her very disabled child over a very long period until her death. 

 

 

The Judge then invited the Local Authority to reconsider their view of the case and specifically whether Mr and Mrs S could be considered as carers. They declined to do so and an Independent Social Work assessment was therefore commissioned.

 

The mainstream media seem, to me, to have reported this case as being that Mr and Mrs S got the child back, and not that they had won the right to an independent assessment of whether they should.

 

A fascinating case, and one that I hope will be unique, although as our world gets smaller, the chances of unscrupulous practices playing a part in UK care proceedings must increase.

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Once you have eliminated the impossible

Posted on October 24, 2012 by suesspiciousminds

 

Is Sherlock Holmes’ maxim applicable to fact finding hearings? The Court of Appeal take a look

 

A (Children) [2012] EWCA Civ 1278

 

As all Holmes fans know, the Great Detective opined  “Once you have eliminated the impossible, whatever remains, however improbable, must be the truth”  *    [see footnote]

 

 

[Gratuitous Cumberbatch photo, for the female followers of this blog, including the Great Fiancee]

In this finding of fact hearing, involving a fatality to a child, the father, who ended up with the finding of fact being made against him, appealed in part on the basis that the Judge had approached this sort of formulation.

 

http://www.familylawweek.co.uk/site.aspx?i=ed102912

 

The Court had determined that the child had, on the balance of probabilities, suffered an injury.

 

It had then determined that the only 3 possible perpetrators were the mother, the father or an elder child ‘C’.   

 

The father claimed that what then happened was in effect that the Court ruled out mother and C as potential perpetrators and thus came to the conclusion that the father, being the remaining suspect must be the perpetrator, rather than carrying out the identical form of scrutiny.

 

(i.e, that had the Judge considered the order of suspects differently, and approached matters with a fresh eye, he might have ruled out father, then C, leaving mother; or any other sequence.  And that it just so happened that this order of events left father as ‘last man standing’. It was unfair to father to not have the same impartial eye testing whether he should be ruled out, and the burden effectively shifting to being for him to provide evidence why he WAS NOT the perpetrator)

 

 

It is probably fair that I give you now, Lady Justice Black’s concluding paragraph

 

23. I simply add this: that this is a case which we have considered very much on its own facts; nothing that I have said should be taken in any way to alter the established formulation of the law applicable to cases such as this. 

 

So perhaps the case is useless for anything other than determining the appeal that was before them, but I respectfully think that it is of interest because the precise forensic approach of how the Court approach the ‘whodunnit’ element of a finding of fact hearing, having established that something was done, and who the potential perpetrators are, is very important, and anything that adds to our pool of understanding as to the right or wrong way to go about it is therefore useful.

 

 

This is how the Court of Appeal record the Judge’s decision-making process

 

4. So this was a heavy trial for the judge, and it is manifest that all its concentration was upon the facts, the investigation of all relevant facts and the establishing on the balance of probabilities of the crucial facts.  That the law played no great part in the process is, I think, demonstrated by the fact that the judge deals with it in two short paragraphs.  In paragraph 28 he said:

“In these proceedings a party seeking a finding of fact bears the burden of proving it on the balance of probability: Re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35.  Accordingly, where I record facts or make findings, I am satisfied that they are more probable than not.”

5. In he following paragraph 29 he only added:

“Where a number of individuals might be responsible for a known injury, the test for whether it is established that a particular individual was involved is whether there is a real possibility they caused the injury: Re S-B Children [2009] UKSC 17.”

6. So, moving on from that early and brief direction, the judge explains himself essentially in paragraphs 170 and following under the subheading “Responsibility for B’s injuries”.  He considers first the position of B’s mother. He sets out in paragraph 170 under seven numbered paragraphs the matters that he was taking into account in reaching the conclusion that B was in good health when mother left the house and that he was injured in her absence. Having reached that conclusion it is not surprising that in paragraph 171 he said:

“I therefore find that M was not present when B was injured, and further that she does not know how the injuries occurred.”

7. In paragraph 172 he turned to consider the father’s position, saying:

“I turn to consider whether F’s explanation that C caused B’s injuries is credible.  If it is not, the inescapable conclusion is that they were caused by F.”

And then in paragraph 173 he set out what he described as being the combination of a large number of circumstances necessary for C to have injured B in the way that the father suggested.  There are 22 subparagraphs of such factors.

8. In paragraphs 174 and 175 he considered the father’s credibility generally as well as specifically, and he concluded that the father was an unconvincing witness.  However, in paragraph 176 he said:

“176. In assessing F’s evidence, I remind myself that although I disbelieve it, the consequence is not that he is inevitably responsible for the injuries.  Lies may be told for other reasons.  The burden of proving responsibility remains on those that allege it.”

9. In paragraph 177 he considered possible explanations for untruthfulness that would not be in any way probative of causation.  In paragraphs 178 and 179 he then states and explains his fundamental conclusion.  He said:

“178. My ultimate conclusion in relation to C is that there is no real possibility that he caused B’s injuries.  A possibility that is remote on the medical evidence alone is vanishingly improbable in the light of the evidence as a whole.  I reject F’s case.

179. I find that F caused B’s injuries.  I reach this conclusion by eliminating the only possible alternative and by rejecting F’s account.”

 

 

The father submits that paragraph 179 is effectively a reversal of proof, and placing the burden on the father to show that he was not the perpetrator, rather than on the Local Authority to prove to the requisite standard that he was.

 

 

The Court of Appeal considered that the argument was skilfully drawn, but rejected it nonetheless   (largely because of the way that the Judge at first instance had balanced matters)

 

10. Now Mr King’s principal criticism is of paragraph 172, which I have already cited.  He submits that this amounts to an implicit reversal of the burden of proof.  The submission is skilfully advanced and is certainly worthy of careful consideration, but it has to be taken in the context of the passage as a whole, all the paragraphs from 172 to 179, the relevant passages of which I have already cited.  It seems to me that what the judge was saying in paragraph 172 was that he had to consider whether the father’s explanation that C caused B’s injuries was a real possibility — was it plausible? — and that was certainly a permissible and indeed a sensible approach.

11. Mr King has submitted that essentially the judge has pinned the label of responsibility on the father by a process of elimination.  He has first eliminated the mother, then he has eliminated C, and therefore he has, as it were, reached the only remaining possible conclusion.  I see that that submission is also open to Mr King given that the judge has specifically said:

“I find that father caused B’s injuries. I have reached this conclusion by eliminating the only possible alternative.”

12. He might have put alternative into the plural but I do not think that that is fair to the judge overall.  He had to reach a realistic conclusion; he had to be as specific as the evidence permitted; and overall it seems to me that the conclusion was well supported by evidence and was acceptably reasoned.  Mr King has said that there was no medical evidence to force the judge’s conclusion and that there was no other evidence to force the judge’s conclusion, and that accordingly the judge should more safely have announced that there was a real possibility that the father committed the injury, but no more than a real possibility. 

13. That is essentially putting his primary submission in other words, and it does not lead me to doubt the conclusion that I have already expressed on his primary submission. 

14. It will be, I have no doubt, Peter Jackson J who conducts the second stage of this trial.  It may be that he will be persuaded to admit the police records that Mr King highlights.  In passing, I note that there seems as yet to be no explanation as to why they are belatedly produced.  That is something that requires no further speculation.  There can be no doubt at all that the kick injury inflicted by C on the carer is a subsequent development.  There can be no doubt at all on the authorities that the judge at the second trial is not only entitled but bound to have regard to that subsequent development.  Authority is equally clear that it is open to him to reconsider his earlier stated findings of fact, if he is persuaded that the subsequent development is sufficiently material.  With that observation I would dismiss this appeal.

 

It does seem to me, on the basis of that, that IF the Judge had approached it in the way father was suggesting of :-

 

  1. I have found that the child was injured
  2. I have found that this injury could only have been caused by M, F or C
  3. I have found that it could not have been caused by M
  4. I have found that it was not caused by C
  5. Therefore it was caused by F

 

(rather than 5 – “my analysis of the evidence given by F and the features of the case are such that I find F caused the injury”)

 

that this would have given rise to a successful appeal.

 

And therefore, the Holmes maxim DOESN’T apply to the law. The Court have to consider all of the various possibilities   (That it was M, that it was F, that it was C, that it is one of them but it is not possible to say whom, that it was one of two of them but that “X” is excluded)  and determine which is the correct finding, based on the evidence.

 

As we saw from Justice Mostyn’s decision earlier this year, https://suesspiciousminds.com/2012/05/04/a-county-council-v-m-and-f-2011/

   it is peculiarly lawful for the Court to examine the two possible explanations for the child’s injuries and to discount both as being inherently implausible and fall back on the burden of proof as being the determining factor.   The authority that gave rise to that, was of course, a shipping case. Shipping cases nearly always are at the bottom of any important legal principle  (that or runaway milk horses or pensioners consuming ginger ale)

 

[All of the principles in Re SB   http://www.familylawweek.co.uk/site.aspx?i=ed47645  still apply, of course – that it isn’t for the judge to dance on the head of a pin in trying to establish who caused the injury and if the evidence does not allow for a definitive finding, the Court should not exonerate one parent simply because another seems more likely. ]

 

i) “If the evidence is not such as to establish responsibility on the balance of probabilities it should nevertheless be such as to establish whether there is a real possibility that a particular person was involved. When looking at how best to protect the child and provide for his future, the judge will have to consider the strength of that possibility as part of the overall circumstances of the case”; ii) judges should avoid attributing the relative probability of who is responsible for harm where they are unable to identify a perpetrator and iii) when a perpetrator is identified there is a risk that the judge gets it wrong but that risk cannot be used to conclude that there is a risk to the child. However it was also

“Important not to exaggerate the extent of the problem. It only really arises in split hearings…… In a single hearing the judge will know what findings of fact have to be made to support his conclusions both as to the threshold and as to the future welfare of the child.”

 

 

 

 

* The Great Detective, when making this maxim, probably did not envisage just how improbable the improbable explanations for fictional crimes could become. My personal favourite, Harry Stephen Keeler, for example, managed to concoct an explanation for a murder that involved a strangler midget who disguises himself as a baby, and who descended in a portable personal helicopter to commit a murder in which a man was found dead in the middle of a field of fresh snow with only his own footprints leading to or from his body. 

 

http://home.williampoundstone.net/Keeler/Home.html 

 

I do heartily recommend Mr Keeler if you are a little jaded with traditional murder mysteries and want to glimpse what life would be like if you were somehow able to turn your brain to a totally different angle.

 

I am also reminded of the lovely Raymond Chandler anecdote, where in the midst of filming  “The Big Sleep”,  the director, Howard Hawks, telephoned him and frantically asked,  “Mr Chandler, I have a problem in the film. I simply can’t work out who killed the chauffeur”  and Chandler had to confess that he too had no idea either.  Read the book, it really is completely unresolved. Other than that, it is a flawless piece of writing, which dazzles on every page.

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J’accuse .. no, I don’t… wait, yes I do (oh no you don’t)

Posted on October 24, 2012 by suesspiciousminds

 

A discussion of  Re W (Children) 2012 EWCA Civ 1307

 

 http://www.familylawweek.co.uk/site.aspx?i=ed102911

 

This appeal centres on whether, having made allegations and then subsequently consented to an order saying that findings in relation to them would not be pursued, a party can then resile from that and seek to reopen the findings.

 

An interesting appeal, arising from private law proceedings.  Within the course of the proceedings, a very detailed set of allegations was drawn up on behalf of the mother. These were very grave allegations indeed.

 

At a relatively early stage of the fact finding hearing, in August 2009, counsel for mother appears to have given the mother certain robust advice about the prospects of succeeding in proving such allegations.

 

Counsel for both parents asked to address the Judge in chambers, and taking appropriate precautions to ensure that both clients were aware and content with this and that the discussion was recorded, this took place.

 

5. Trying to summarise the discussion, it seems that mother’s counsel, acknowledging the standard of proof that was upon the mother and the allegations over many years on a monthly basis, said to the judge that it would be difficult to see how the court could make a positive finding or indeed a negative finding and the judge may therefore come to the conclusion she could not make a finding one way or the other.  She posed the question one has to ask, namely where that would take the court in the terms of the proceedings then before the court, which seemed to be concentrating on the father’s contact.  The judge acknowledged that, and there was therefore some discussion about the allegations set out in the Scott schedule.

6. Counsel for the mother then indicated to the judge that mother had expanded upon her complaints and was now also complaining about his behaviour to the children, though the only specific matter she could relay to the judge was an allegation that mother had seen father hitting the boy about the head.  She explained that her instructing solicitor was making further inquiries and would detail those further allegations as soon as possible during the course of that day, because the judge made it perfectly plain that she would deal with any further allegations there and then without delaying the case any further.

7. So those further inquiries were made and they are now set out on a further schedule, which recites with regard to the children that the father would hit the boy about the head almost on a daily basis and call him stupid; that he would punish the boy; that he did not treat the children equally; and fourthly that the father would touch the daughter inappropriately, not in a father-daughter manner but more intimately than expected by a father. As I read the transcript, of the proceedings I am not sure that the judge was made aware of that fourth allegation.

8. The judge, that is to say HHJ Black — pragmatically and sensibly in my view — enquired what the true nature of the dispute was going to be.  And if and insofar as it was a matter of contact, it was important, she considered, to understand the mother’s case.  She said:

“Now if that was her case so she was saying ‘No contact ever because I emotionally will never be able to deal with this’ which I would have a great deal of sympathy with, I think probably all of us would have a great deal of sympathy with and be on her side.  So this was a complete no contact case, I can understand that …

But I cannot understand…Even with the new allegations, what I will always want to know as a start point is…she is the mother of these children…  If she is coming in to say, notwithstanding all of this, ‘This is what I think is the way safe contact for my children can continue’ short term, long term et cetera, et cetera, that is how I would be informed.  And I would like you firstly to find out, whatever happens, there will be contact starting as soon as it can be sorted out.  There is no reason why it shouldn’t be.”

9. So the judge was asking instructions to be taken about whether the mother was saying no contact at all or whether she was accepting that there should be contact, which would progress if it was shown to be successful and the case was therefore adjourned for mother to be advised.

10. Counsel then took instructions and returned to the judge and, in a long passage which I need not read in full, counsel for the mother made it plain as follows:

“My client’s position is this.  That notwithstanding any of the allegations that she still generally believes are true that she would like the children to see their father in a controlled environment and if he is able to behave appropriately and have a father, child relationship with them she would wish contact to progress.”

And she then set out how that would happen. Counsel told the judge:

“She understands that that would mean drawing a line in the sand in respect of her allegations both the ones she has detailed in her statements to the court and those she has raised today in respect of dad’s conduct towards the children specifically.”

And I omit further words:

“She is very clear she wants the children to enjoy their relationship with their father.”

I omit more passages:

“Your Honour, as I say, my client does understand that this will be drawing a line under her allegations.  She is not withdrawing them in the sense that she does not accept they are fabricated and if I could say that does not strike us as a situation where this woman genuinely believes what she is saying. Whether that is objectively how events have occurred is a different matter and I know that it is a point that troubles my learned friend.”

11. So, in the light of that discussion, the judge was being asked not to proceed with the hearing before her and left it to counsel to prepare a draft order, which had recitals giving full effect to the understanding they had reached. 

 

 

There’s then what I consider to be a very neat bit of drafting, to dance on the head of a pin, and reflect that the allegations were not being pursued or relied upon in relation to the issues of contact and residence before the Court, but neither was there any acceptance on behalf of either party as to whether or not they were true.

“UPON HEARING COUNSEL for each of the parties. 

AND UPON the Respondent Mother not seeking to pursue positive findings in respect of the allegations raised by her in the Scott Schedule and in the list here attached.  It being noted by the court that the allegations made on the list were first made at Court today. 

AND UPON the Respondent Mother understanding that notwithstanding that fact that she is not withdrawing her allegations, she will not be able to put forward specific allegations as reason(s) for a bar against contact or future progression of contact between the children and the Applicant Father or in relation to residence and the Mother understanding that matters will proceed on the basis that [I think it should be] no negative findings have been made against the Father. 

AND UPON the Court recording that no findings of fact have been made against the Applicant Father and that the Applicant Father continues to deny all allegations made against him by the Respondent Mother.

AND UPON the Court recording that as no allegations have been proved against the Applicant Father, no professional assessment of him should be on the basis of the concerns against him by the Mother in the Scott Schedule and list attached herewith, and any assessment should proceed on the basis of events as described by the Mother as having not occurred.”

 

 

Sadly for counsel for the mother, she was no longer representing the mother by the time of a hearing on February 2012  (perhaps due to diary clash, perhaps – as can be seen by mother’s complaints, more a clash of personality than diary), and mother instructed her subsequent counsel to seek to revive the allegations.  This is what she says in her witness statement for the February 2012 hearing.

 

12.  I know it sounds dramatic but I would use the word tyrannical to describe [counsel’s] approach.  I was very scared and I do not believe she gave me balanced advice.

13.  [She] suggested that she should go and see what the judge had to say and I agreed.  I recall she came back and indicated that the judge had said that she would have difficulty in making a positive or negative finding but that we could do things by way of recital.  I think at that point that [she] was doing all that she could to dissuade me from testifying and although she did not say it I was left in no doubt she thought I was wasting the court’s time.  I felt bullied and I had lost all confidence.”

17. It may be that that allegation should be contrasted with how she had earlier approached the hearing before HHJ Black.  In a witness statement of 22 December 2009, that is to say some four months after the hearing before HHJ Black, she said only this:

“I am aware I am no longer allowed to bring these matters into the Children Proceedings, but can confirm I am still on the waiting list to see a counsellor from the Portsmouth Rape Crisis Team but I will not let the past, in respect of myself, have any weight to my views and the children’s views of contact with their father.”

In the same witness statement she dealt with the harm that the children could suffer and she said:

“I am aware this cannot be brought up again in these proceedings.”

18. There are certainly no mention of bullying or of her not fully understanding the nature of the compromise there had been effected.  She put in her own witness statement in January 2012 when she was without legal advice and there she said:

“When the fact-finding hearing came up I had an alternative barrister, who advised me that the hearing would not achieve anything, as the Judge viewed the evidence and had said that even with testimony from all the parties involved, she would find it very difficult to make a decision either way.  It was not made clear to me at the time that the fact finding hearing it was necessary for the facts of the case to go on record, whichever way the Judge ruled.  I felt, and still feel that some elements are central to the case, and [father’s] ability to parent (such as the fact that he abused me and raped me throughout our marriage, and that I was in fact under the age of consent when he first attacked me)”

Again, there is not a complaint of being put under pressure by counsel through bullying nor of a failure fully to understand the compromise she had reached.

The Judge on 12th February refused to reopen the allegations and to undo the order made, and this is the order that was appealed.

 

Counsel for mother in the appeal put her case skilfully (and as the Court of Appeal describe, valiantly) on the basis that the allegations are so serious that they cannot sensibly be ignored and a determination of them central to the issues in the case.

 

The Court of Appeal declined to overturn the case management decision of 12th February 2012, saying that it was not only not plainly wrong but that was plainly right.

 

24. I, of course, entirely agree that it is in the interests of justice and in the interests of the children that the truth be known where the truth can be established, but in all of these cases the court is required by Section 1 of the Act to have regard, among other matters, to delay which is inimical to the well-being of the children.  In this case there is nearly three years of delay or two-and-a-half years of delay and, as HHJ Marston rightly observed, matters had moved on considerably since that hearing.  Matters had moved on because mother had suffered a further breakdown in her mental health.  She was unable to care for the children.  They were placed with father.  They were subject to supervision by the social services department, who were well aware of the fact that these allegations had never been tried out one way or the other, but being alive to that fact nonetheless came to the very firm conclusion, as I have recited from the report of the social worker, that the best interests of the children lay with their remaining with their father.

25. The appeal has to be, in my judgment, an appeal against, in effect, a case management decision by HHJ Marston as to whether or not this matter should be re-opened.  It may be a matter of debate as to whether the more appropriate course would have been to have appealed.  This is not a case where the court is being asked to consider fresh evidence or different evidence from that which had been presented to the court which had undertaken the exercise.  Here, in effect, the gist of the application is to set aside HHJ Black’s order and to have a rehearing. That, one may think, was better a matter for appeal rather than to go back to the same or a different county court judge, but I need not express a concluded view on technical issues of that sort.

26. Treating this as an exercise of discretion, Ms Earley attacks it as being plainly wrong.  In my judgment it was plainly right. The judge was fully entitled to look at delay, to look at the way of the mother’s allegations of bullying had gradually grown as the case progressed, and to have regard to the fact that the mother was perfectly happy to leave these children in the father’s care unsupervised and unsupported for weekends and over holiday periods.  She consented to all of those orders.  She was aware of the effect of the compromise in August when she agreed those orders.  She did not then complain.  She complained only when the case had changed and she was now the one seeking residence from father, who had the backing of the social services in retaining the children in his care. 

27. To re-open the matter would undoubtedly cause further delay; the effect on the boy who suffers sadly from a problem of his ill health would be severe; and the judge, taking all of those matters into account, was fully entitled to say that it was far too late to re-open matters.  He was correct, moreover, to take the view that it would have been disproportionate, because one has to ask what prospect was there on the face of the papers before the court of mother succeeding in establishing the vague allegations she was relying on, allegations over many years with no corroboration apart from a broken tooth, which could have been explained as easily on the father’s account as on her account.  There was little medical evidence, it seems, to corroborate her account.  She was on her own admission inconsistent in her explanations of misconduct, in her reports to the psychiatric team who were advising her.  She was inconsistent about the events of March 2011 when she suffered an injury, as she at first put it, in the course of sexual activity, which was to say the least unusual.

28. Taking a view as to the prospects of her success, they could not be put as anything like reasonable.  On the contrary, they appear, as the judge concluded, to be weak.  What was the benefit to the children?  In my judgment not a great deal.  The allegations against the mother do not appear to have impacted upon his treatment of the children, who as I have repeatedly said are thriving in his care. 

29. For all those reasons, I conclude the judge was right to draw the line where he did.  I would therefore dismiss this appeal.

 

 

Much of this obviously turns on its facts – the huge passage of time between the allegations being ‘left on the file’ and the attempt to resurrect, the lack of credibility given later evidence filed that mother had been ‘bullied into this by counsel’ and the inconsistencies in mother’s allegations, but there are the wider points that it is legitimate for a Court to conclude a finding of fact hearing with an agreed order on the basis set out in August 2009, and that the parties need to be advised with care that reopening such findings laid to rest may be extraordinarily difficult if not impossible, and that they should be sure about that before consenting to such an order.

 

 

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Last night a Re J saved my life… (I am so, so sorry)

Posted on October 16, 2012 by suesspiciousminds

 I could not resist, once it came into my mind. And those of you with a classical education are muttering, that the shabby pun doesn’t even work if you pronounce it “Ray J”  – so a double apologies to the Brothers of Boris.  

 

A discussion of the decision of the Court of Appeal in Re J (A child) 2012, and where the bright line falls in a Judge allowing a case to be put and curtailing cross-examination that they aren’t finding helpful.

 

The case can be found here:- http://www.bailii.org/ew/cases/EWCA/Civ/2012/1231.html

It is, sadly, once again, one of those private law cases that have gone on for nine years, without very much being resolved in any of that time.

 

I was counting the number of different judges that had dealt with interlocutory hearings, and reached ten.

It is little wonder, with such lack of judicial continuity, that the scale of the litigation and the need to grip it and reach a proper final conclusion wriggles away.

 

The point of appeal is interesting – the father’s case was in effect, that as we so often see, the pace of movement and progress on contact is dictated by the mother, who makes a series of objections that are never resolved in litigation but the case inches forward, bit by bit, always at the pace the mother is able to get away with. [I am not saying that this happens in all cases, or even a lot of cases, but I am certainly familiar with it happening in some. To avoid sexism, it is the person who has day to day care who tends to take this approach, I don’t think it is gender specific per se]

On cross-examining the mother about her various shifts in position and historical objections to contact – with a view to establishing that her current position was unreasonable, the father’s counsel was stopped by the Judge.

 

25. Realistically, if I may say so, Ms Thain did not press the first of the father’s two complaints on this part of his appeal. The key point, which she understandably put at the forefront of her submissions, was that the Recorder wrongly limited the ambit of the factual investigation upon which, as she would have it, Ms Holmes properly wished to embark in her cross-examination of the mother.

26. The matter arose in this way. In her application filed in October 2011 the mother, as we have seen, was opposed to anything other than supervised contact. By the time of the hearing in March 2011 the mother was expressing herself as being “happy” with unsupervised contact: this was the word she used (Transcript p 46) in answer to questions from the Recorder. Indeed, it seemed from her answers to the Recorder (see Transcript p 51) that she had no objection in principle to overnight contact. When Ms Holmes tried to put this change in her stance to the mother (Transcript p 61) she was stopped by the Recorder (Transcript p 62): “Do not answer this question … I say do not answer it because I do not see where it is going.”

When Ms Holmes tried to explain, the Recorder broke in: “do you really want the witness to rake over all her earlier concerns and worries?”

27. Ms Holmes persisted: “Your Honour the problem is … that repeatedly what the mother does is she makes allegations that stops contact, she then comes to court and makes … concessions in court that lead to a small step forward. The point I’m making is … that if we are going to have a stable regime of contact… that is going to last I think we need to get to the bottom of what the problems are because otherwise the worry the father has is we go away from here, two months down the line all the same allegations, and we come back to court again and we’re back to where we were, square one.”

The Recorder responded: “Well I think you will find that the court, at least this court, will want to move forward rather than to linger … I have to approach the case as it is today, the witness has said, and I am sure your client would want to move forward from where it is today rather than, as it were, have a kneejerk reaction … to kick it back to the order of District Judge Chandler in 2008.”

Ms Holmes then made a very pertinent point (Transcript p 63): “But Your Honour the reality is … that what she is proposing is that she dictates the way in which it moves forward. That she is saying it should move forward in this particular way only … when we have never actually established why the previous arrangements were wrong.”

She added: “But we’re now in a situation where the mother is determining that there should be a vast reduction from that level of contact. I’m trying to get to the bottom of why she feels that that is necessary.”

The Recorder then made his position very clear (Transcript p 62): “Well let me reassure you, you are not going to gain any mileage from this line of cross-examination and I am interested in looking forward and with that in mind do you have any further questions?”

28. Ms Holmes soldiered on for a while. As the short adjournment approached the Recorder said this (Transcript p 68): “I am going to curtail your cross-examination unless you want to investigate what would be more acceptable to [mother] otherwise we shall move straight to your client.”

Ms Holmes made clear (Transcript p 69) that: “if I am not able to explore [the allegations being made by the mother] then it does hamper my ability to be able to put my client’s case.” The Recorder was unmoved: “Well that may be but it seems to me we are where we are”.

29. In his judgment the Recorder acknowledged (Transcript para [3]) that he had not permitted cross-examination, as he put it, “going back into the mists of time”. He explained why: “it seemed to me … and it still seems to me, that the proper starting point for the hearing today is today.”

30. The point made by Ms Holmes in her skeleton argument and elaborated by Ms Thain in her oral submissions is simple and compelling. The Recorder concentrated on how things might move forward without questioning, or allowing counsel to question, how or why the current state of affairs had come about and whether the mother’s reasons for unilaterally varying the previous court order were justified. This, it is said, was particularly alarming given what Dr Little and Ms Coatalen had said in their earlier reports – material suggesting that there could be a pattern to the mother’s behaviour requiring investigation of the kind the Recorder refused to permit. In short, it is said, by restricting cross-examination of the mother the Recorder ensured that it would be impossible for him to carry out the task required of him and denied the father a fair hearing.

If I may say, I  very much like the cut of Ms Holmes’ jib here.

The Court of Appeal, unsurprisingly, took a dim view of the Judge’s view that the past was of no interest to him in making decisions about the future.

31. In my judgment the father’s appeal must be allowed on this ground alone.

32. The point is really quite short and simple. Of course the Recorder was right in saying that one had to look to the future: after all, his task was to determine J’s future living arrangements. And of course, in one sense, the Recorder was right to look at how matters stood on the day of the hearing: after all, things were as they were. But his error – and in my judgment he here fell into plain and obvious error – was in rejecting Ms Holmes’ entirely justified desire to explore the crucial question of why it was that things were as they were at the date of the hearing. The investigation – the cross-examination – that Ms Holmes wished to undertake was not something she wished to pursue Micawber-like in the speculative hope, absent any reason to believe so, that something might turn up. On the contrary, and as she explained to the Recorder, there were at least two things she wished to explore, and which in my judgment cried out for investigation: first, why the mother’s attitude had changed between October 2011 and March 2012; second, and even more important, why the arrangements agreed in January 2008 had not worked out and why the mother believed they needed to be changed.

 

33. The Recorder may have been right in doubting the utility of an investigation “back into the mists of time”, but this was not what Ms Holmes was suggesting and it was no answer to the need for a more focused investigation of the kind she wanted to undertake. As my analysis of the litigation shows, there was a very clear point in the past which was the obvious initial starting point for such an investigation: the order made by District Judge Chandler on 7 January 2008. Two things about that order are striking: first, it was made against the background of the concerning matters identified and considered by Dr Little and Ms Coatalen, and taking into account Ms Coatalen’s recommendations; second, it was an order made by consent and moreover, as the order itself makes clear, on an occasion when the mother was represented by counsel. Now of course in a case such as this a consent order does not have the same status as a consent order made in ordinary civil proceedings, but it was nevertheless entirely understandable that Ms Holmes should wish to probe with the mother why she no longer saw the order she had agreed to as being appropriate. Moreover, given what Dr Little and Ms Coatalen had said, Ms Holmes had every justification for wishing to explore whether the explanation for the mother’s change of view since January 2008 lay in those matters which had caused Dr Little and Ms Coatalen concern rather than in the explanations now being offered by the mother.

34. Whether it would have been appropriate for Ms Holmes to seek to push the investigation farther back into the past – even assuming she would have wanted to – was, I should add, not a matter calling for a ruling at the outset. It was a matter to be considered, if the need arose, in the light of how the preceding cross-examination had gone.

35. Of course, and even in a family case, a judge should stop irrelevant or time-wasting cross-examination. But a judge should always bear in mind that, however carefully he has read the papers beforehand, counsel is likely to have a better grasp of the inner forensic realities of the case. And a judge does well to think twice if, as here, his intervention is met by counsel standing her ground and carefully explaining why she wishes to cross-examine in a particular way, especially if, as here, counsel’s reasons have obviously been carefully considered and are not just ‘off-the-cuff’. Ms Holmes is to be congratulated for doing her duty, politely but firmly standing her ground and telling the Recorder plainly that his ruling was preventing her putting her client’s case. It is a pity that the Recorder did not, even at that point, see any reason to change his mind.

36. In my judgment, the effect of this was indeed, as submitted to us, to disable the Recorder from carrying out the task required of him and to deny the father a fair hearing. But I go further. To deny the father a fair hearing and a proper opportunity to put his case was also, of course, to deny J a fair hearing. And for the reasons given by McFarlane LJ it may also have meant that the mother’s case was not properly considered.

37. There is no way in which we can remedy things except by allowing the appeal and directing a re-trial at which those matters which the Recorder refused to consider can be properly investigated. In the circumstances the re-trial must be in front of a different judge.

 

The telling point here is that father’s counsel was able to set out the purpose of her cross-examination and that it had a relevant and pertinent aim and intention, and was not just a string of questions in the hope that something good might come out of it. Judges wishing to curtail cross-examination will need, as a result, to hear what underpins the questions; and counsel faced with potentially irascible tribunals will need to have at their fingertips an explanation of the strategic thrust of the topic and why it goes to the live issues in the case. [If they are not able to produce an answer to that readily, they perhaps shouldn’t be embarking on that line of questioning…]

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