Category Archives: fact finding

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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The importance of being formal

Posted on October 22, 2012 by suesspiciousminds

 

 

A discussion of the private law case of Re K (A child) 2012 EWCA Civ 1306.

 

 

The judgment of the Court of Appeal can be found here

 

http://www.familylawweek.co.uk/site.aspx?i=ed102441

 

 

Normally I start with – the facts of this case are quite straightforward, but in this one, they aren’t.

 

There are four children, A, S, G and B.  The children were all the biological children of one woman, the mother.  A and S were the children of the father.  G and B were, the mother says, fathered by two different men who had raped her, years apart.

 

A, S, G and B all lived with the father, who although not being the biological parent of G and B was a father figure to them.

 

A younger child from another relationship, D, lived with the mother.

 

There were serious allegations that mother had emotionally mistreated the children, and the section 7 report was clearly in favour of the children residing with the father, and indeed had gone further in saying that if there was a shift in residence, the Local Authority would commence care proceedings to protect the children from the risk they considered mother to pose.

 

The appeal arose as a result of a review hearing in residence and contact dispute.  At the review hearing, set up by a previous directions hearing ordering the author of the section 7 report to attend and be cross-examined, the positions of the parties were this :-

 

Mother invited the Court to appoint a Guardian and a child psychologist, so that the issues in relation to the children’s wishes and feelings could be explored.

 

Father invited the Court to make final Residence Orders and conclude the case.

 

 

An odd feature of this appeal was that the tape machine had not been working, and thus neither the judgment, nor the hearing itself had been recorded.  Therefore, any criticisms I make of those representing mother are with the caveat that the matters which seem to be omissions might well have been dealt with and just not recorded. And they arise from the criticisms made by the Court of Appeal.

 

The Judge dismissed the applications for a Guardian or a child psychologist to be appointed, made Residence Orders and made an order for contact which was  “as directed by the Local Authority”, making it plain that the orders were not “set in stone” and that mother could bring a fresh application if things were not working.

 

The mother appealed on these grounds :-

 

 

  1. That the decision to refuse a child psychologist or a Guardian was plainly wrong.
  2. That the Judge had effectively abdicated decision-making about frequency and duration of contact to the Local Authority
  3. That he had made a final order at a review hearing and had not heard evidence from either parent (although he had heard evidence from the social worker)
  4. That the allegations made against mother, and the cross-allegations of domestic violence were not determined at a finding of fact hearing.

 

 

 

 

The Court of Appeal rejected the mother’s arguments about instruction of a Guardian or child psychologist, considering the judge’s reasoning on this to be solid and it being a valid case management decision.

 

The lead judgment was delivered by Lady Justice Black.

 

35. I can deal robustly and swiftly with the question of the appointment of a guardian and/or a psychologist.  I am not persuaded by the mother’s arguments in this respect.  The judge had the benefit of input from the local authority, who had been very much involved in the case over a period of time.  They were not abandoning the case but were intending to continue their attempts to persuade G to see his mother and would continue to enable B to do so.  It was certainly open to the judge to take the view that it was difficult to see what more another expert could offer and that this was not the moment to take the course of involving another person in the children’s lives.  Furthermore, appointing a guardian or instructing a psychologist would inevitably take time and he was entitled to put into the balance in this respect that the children needed to be settled and to return to normality.  Protracted court proceedings would not help with that.

 

The Court of Appeal also considered the Judge’s position on contact to be acceptable.

 

36. I am not persuaded by the mother’s argument that the judge abdicated responsibility for solving the contact issue either.  He determined that contact should be taking place and he made the decision to continue to entrust the furtherance of it to social services because he thought that G would come round.  He made clear that this was not a final decision and that the mother could bring the matter back to court if it did not progress.  Keeping the proceedings open for a further year and expressly providing for liberty to apply, which was not necessary in law and must therefore have been included as a deliberate message that the decision was not as the judge said “set in stone”, underlined this.  The judge was entitled to take the view that this was the course that was in G’s best interests for the moment.

 

 

But it was the summary disposal of the case that concerned them.

 

The Court of Appeal note that from the notes of the hearing that they had been supplied with, those representing the mother had focussed on their application for adjournment and had not addressed the Court specifically on the mother giving evidence, or the need for a finding of fact hearing, or the reasons not to make final orders in accordance with father’s case.

 

[As indicated earlier, it may be that all of those things were done, but it was not recorded on the notes of hearing that the Court of Appeal were supplied with. I don’t want to cast aspersions on those representing mother, as that would be unfair given that I wasn’t there, and haven’t seen a full transcript]

 

40. I can well understand how it was that the judge took the approach that he did, that is not hearing from the parents.  He was anxious, rightly, that the proceedings should not be drawn out any longer, and no doubt he was influenced by the weight of the evidence in support of the factual case put forward by the father and supported by the local authority’s investigations, and also by the practical difficulties in the way of the mother’s application for residence.  Time had run out for the hearing, almost certainly because of the pressure of work in the court and it was already late in the day, and perhaps most importantly the judge was not asked by counsel for the mother to hear evidence from her or to permit cross-examination of the father.  Counsel for the mother seems to have been taken by surprise by the judge’s final determination of matters.  He was, as I have said, concentrating on persuading the judge that the matter should be adjourned for the intervention of a guardian or a psychological report and he did not expect that the judge would not only dismiss that application but also proceed to make final orders. 

 41. There are certain situations in which it is correct for a court to deal with applications summarily or on very limited evidence, but if that is to occur it is normally necessary for there to be some argument as to whether that is an appropriate course and a determination by the judge that it is for reasons which he articulates. 

42. In this case the course that was taken does not seem to have been the subject of such a process.  I am driven to the view, in all the circumstances, that the procedure adopted by the judge was rather too pragmatic and resulted in a hearing that was not entirely fair to the mother. 

 

 

So the Appeal was allowed.  Between the initial decision and the appeal hearing, there were some extraordinary developments. That is a massive understatement.

 

 

43. A few days ago the father’s solicitors wrote to the mother’s solicitors saying that contact with B, the only child who had been seeing the mother without problems, was going to be suspended.  This was said to be because of a series of incidents which had given rise to concern about B’s safety and the father’s. They included the following.  A man who called himself Stuart had turned up at B’s school claiming to be B’s father.  A man who gave a different name had turned up at the contact centre wanting to join in contact with B.  A third incident involved a man trying to snatch B from the father on a tube station platform. 

44. The mother’s solicitors replied to the father’s solicitors saying that in mid-July, when at Homebase, the mother had recognised the man who raped her and had approached him and told him that B had been born as a result of the rape.  The man (Stuart), had subsequently attended at B’s school and at the contact centre.  Stuart told the mother that the father was behind the rape, having instructed Stuart to beat the mother up and rape her, and said that if he did not do so he would be paid a visit in relation to money that he owed the father for drugs and could not afford to pay. 

45. Both parties concede that, in the light of this new and presently untested material and the suspension of contact with B, the case will have to return to the county court judge in any event now and that findings will have to be made about factual allegations

 Now that will be an interesting finding of fact hearing. Given that as we know, the Court findings are binary (a thing either is proved to have happened, or it is proved to have not happened; there is no ‘not proven’ or ‘not sure’)  either the father recruited and paid a man to rape the mother, or the mother has made the most scandalous and false allegations about the father. Either eventuality has huge implications for the children and their relationship with both parents. It is hard to see how they could go on to have a meaningful and full relationship with both parents after the determination of which of these two possibilities is true.

It is worth noting that the two other Appeal Court judges, whilst granting the appeal, expressed quite a bit of sympathy with the trial judge, and the Court as a whole communicated the need for all court hearings to be properly set up with clear and recorded ambit for the hearing , and for the formalities to be observed.

 

50. I would just add one short postscript.  Family practitioners and judges have become adept at dealing with situations that are continually developing, which are not straightforward, and which require speedy decisions for which there is often insufficient court time.  Conscious that children await their decisions they respond valiantly by getting on with the job without insisting on too many formalities.  However, it is important that everyone understands the issues that are to be determined at each hearing and addresses the form that the hearing will take, ensuring that the process is robust enough, not too robust. The mother in this case had not filed a formal application for residence and contact and it would have assisted in an understanding of the matters that had to be determined had she done so.  Indeed, it may be helpful generally if rather greater attention is paid to the formalities in family proceedings. 

51. Secondly, a word about review hearings.  Hearings at which there is to be a “review” of a case are not at all uncommon, but they do carry a risk that there is a misunderstanding as to what will be addressed by the court.  It is important that in advance of such a hearing, there is as much clarity as possible about its form and ambit, the issues that will be addressed, whether evidence is contemplated and whether the orders that result will be case management orders or orders of substance and, if the latter, whether interim or final

 

 

And

 

Lord Justice Aikens

 

53. I would just wish to add two comments, however.  First, I can well understand why in the circumstances the judge took the robust and pragmatic course that he did.  In particular I would note that the judge’s course should be seen against the fact that the mother, represented by counsel, did not apply for the mother to be heard or for the father to be cross-examined; she did not submit that there should be an interim residence order and did not seek an adjournment.

54. My second comment is this. I entirely agree with what my Lady has said about the need for requisite formalities in family cases.  If those formalities had been observed in this case, it is possible, to put it no higher, that the current position could have been avoided

 

 

I think it would be unlikely that someone appealing in the future on the grounds that a Judge had not heard from their client would be likely to succeed if they hadn’t made representations before the Court that their client should give evidence, for example.

 

No matter how confident one might be that your application for an adjournment will be granted, it is absolutely necessary to make sure that you deal with the counter applications that are being made, to ensure that the Court know that you resist those and the reasons why.  Likewise, if a finding of fact hearing is sought, a schedule of allegations ought to be drawn up and lodged and a formal request made for such a determination.

 

 

The comments about review hearings are, I think, very sensible. The term is so widely drawn that it covers everything from a quick look to see that everything is on track, to interlocutory arguments about experts and evidence, to “well, it might be possible to conclude the case”  and it is better to record clearly on the face of the order what the issues to be reviewed are, and what is envisaged might be achieved at such a hearing.

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A tapestry of justice

Posted on October 12, 2012 by suesspiciousminds

 

A discussion of London Borough of Sutton and Gray 2012   – in which the High Court determined that an earlier finding of fact that a father had shaken a child, causing injuries (and for which father went to prison) was wrong and had been in effect a miscarriage of justice.

 

The children had been placed with a relative (fortunately) who cared for them under Special Guardianship Orders. Had they been instead, adopted, then the Court would have been faced with the same issue as in Webster, that children had been wrongly removed and adopted, but that such a step cannot be unpicked.  The LA had been seeking a Placement Order for the younger child.

 

 

The Judge in this case, Mrs Justice Hogg, dealt with the case in a very measured and compassionate way – the other judgment, which I don’t include, which deals with the aftermath of this finding of fact and the reconciliation of the family is moving in the extreme.

 

 

[I am very grateful to Ms Troy who was junior counsel for the children in alerting me that this case was forthcoming and to watch for it.  Ms Troy is a very able advocate, a thoroughly decent person and someone blessed with good taste in football; an all-round good egg. The title is a malapropism from a gentleman who left Court and informed myself and counsel that this had been “a tapestry of justice”]

 

The judgment is here:-

 

http://www.bailii.org/ew/cases/EWHC/Fam/2012/2604.html

 

 

You will notice the highly unusual step of the Court giving the full names of those involved, rather than anonymising them. That’s a marker of how important it is for this family to be exonerated, and the likelihood that there will be further media involvement – I note that journalists were present.

 

I would point out in this case, that the miscarriage is not a result of bungling or bad faith on anyone’s part,  nor crookedness, nor incompetence, nor overly dogmatic experts. It just reflects what is becoming increasingly understood – that in complex medical cases involving injuries to children, sometimes our best working diagnosis on the balance of probabilities, can still be wrong.  As the Judge says late on, with reference to Mrs Justice Bracewell – in effect the Judge has to make the best conclusions they can from the evidence as it is presented, but being aware that today’s certainties can be tomorrow’s grey areas.

 

In a case such as this, we can see the stark impact of that on the family. It would not be an overstatement to say that they have been torn apart by these circumstances.

 

  1. From a very early stage the spectre of Non Accidental Injury was raised to explain Ellie’s collapse and the findings of intracranial and retinal bleedings. The parents, in particular the father, was unable to give a history of an accident or other explanation as to why she had suddenly become limp and in a collapsed state. The various tests performed did not reveal any medical explanation. Suspicion therefore arose that Ellie’s condition was a result of an inflicted injury. The fact she had been injured previously added to the suspicions. The Local Authority and police were informed of the position.
  1. As a result the parents were arrested on suspicion of causing grievous bodily harm to Ellie and interviewed by the police on 6 March 2007. Both denied causing injury to Ellie on or about 15 February, and have continued to do so ever since.
  1. In the meanwhile the Local Authority decided to issue care proceedings in respect of Ellie in which a care order was sought on the basis that she had suffered an inflicted head injury and burns whilst in the care of her parents.
  1. The application was issued on 5 March 2007 in the Croydon Family Proceedings Court. The first Interim Care Order in respect of Ellie was made on 15 March 2007, and thereafter renewed on a regular basis. On that date the proceedings were also transferred to the Croydon county Court.
  1. The fact-finding hearing took place in front of HHJ Atkins culminating in his Judgment dated 29 January 2008, in which he made findings against the father in that he:

(i) caused the burns on 7 February 2007 to Ellie deliberately or recklessly or negligently;

(ii) caused the head and eye injuries and the consequences sustained by Ellie on 15 February 2007;

(iii) the mother failed to protect Ellie by leaving her in the father’s sole care on 15 February.

  1. On 28 April 2008 the Learned Judge made further findings against the parents that:

(i) neither had accepted his Judgment and findings on 29 January 2008;

(ii) neither had been open and honest about the extent of their relationship, that “it has been more extensive than they said”;

(iii) both had intimidated and made various specific threats towards the maternal grandparents;

(iv) and the Learned Judge ruled the mother out as a long-term carer for Ellie.

  1. On 14 August 2008 the Learned Judge made the Special Guardianship Order to the maternal grandparents and the contact orders for the parents.
  1. The police charged the father with causing grievous bodily harm to Ellie on 15 February 2007 contrary to S.20 of the Offences against the Person Act 1861 and with cruelty contrary to S.1 of the Children and Young Persons Act 1933.
  1. On 24 March 2009 after a 4 week trial at Croydon Crown Court the father was convicted on both counts, and by majority verdict on the charge under S.20 and sentenced to concurrent terms of 18 months and 1 month imprisonment.
  1. Isabella was born on 7 September 2009 while the father was in prison.

 

 

It can easily be seen, that in relation to paragraph 45, those findings made that the parents had not accepted the finding of fact hearings are the only thing they could have done, and to criticise them for it is now evidently unfair.  Given that it was not true, how could they do anything other than continue to deny it?

But of course, the Court was proceeding on what was understood to be right at the time   [and from a legal point of view, what the Court FOUND to have happened at the hearing in January 2008 WAS what happened; although we now know that in reality, it was not what happened at all]

 

  1. The Injuries Ellie received
  1. Ellie collapsed in the father’s home. She suffered brain dysfunction or encephalopathy. She sustained subdural and retinal haemorrhages.
  1. Those three types of injuries are often referred to as The Triad and considered as a significant pointer towards a diagnosis of non-accidental head injury, particularly as in this case where there are no other signs, symptoms or marks of injury on the child. In this respect I am excluding the burns.
  1. It must not be assumed that because it seems ‘The Triad’ is present that it automatically and necessarily leads to a diagnosis of non-accidental head injury.
  1. Before concluding that The Triad exists and that a finding of non-accidental head injury is justified the Court must consider and examine the evidence in respect of each injury, its diagnosis, and its causative event(s) with care. It must also consider the clinical presentation of the child and the evidence of the parents, carer or other relevant witnesses.
  1. The findings in every case must depend on the specific individual facts to that case.
  1. At the end of the day it is always possible for a Judge to rule that the cause of an injury remains unknown. As Mr Justice Hedley said in Re R. 2011 EWHC 1715:

“In my Judgment, a conclusion of unknown aetiology in respect of an infant represents neither professional nor forensic failure. It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer non-accidental injury merely from the absence of any other understood mechanism.

Maybe it simply represents a general acknowledgement that we are fearfully and wonderfully made.”

 

 

I suspect, that this is a phrase, as it is both resonant and skilfully constructed, that we will see again and again  “We are fearfully and wonderfully made”

 

The Judge analysed the evidence in relation to each element of the ‘triad’  – those classic symptoms which suggest that the child has been the victim of a shaking injury.

 

  1. My Conclusions
  1. The conclusion I draw from the evidence of all three ophthalmologists are:

(a) This is an unusual case;

(b) It is unlikely that the injuries to the eyes were (i) birth related or (ii) caused by the seizures suffered by Ellie in hospital.

(c) The causative event(s) probably occurred shortly before Ellie’s admission to hospital;

(d) Ellie’s rapid and complete recovery was “remarkable” given the apparent severity of the haemorrhages when first seen;

(e) By just looking into the eye it is not possible to identify the cause of haemorrhaging;

(f) The haemorrhages do not have the hallmarks of a shaking injury, but such an injury cannot be excluded. In the event it was a shaking injury the severity of the force would be at the lower end of the spectrum;

(g) An airway obstruction giving rise to a sharp increase in intra cranial pressure could be an explanation for the haemorrhages, and would fit into the scenario resulting in a rapid and complete recovery without any residual damage;

(h) All three were prepared to consider an explanation other than that of shaking. The two experts were also specifically questioned about the possibility of an airway obstruction being the root cause as suggested by Professor Fleming. Both accepted the possibility;

(i) None were prepared to say on the balance of probabilities the injuries seen in Ellie’s eyes were caused by a shaking or inflicted mechanism. Mr Gregson and Professor Taylor were prepared to say they “did not know” or “could not be certain” what caused the injuries and “sat on the fence” when asked whether there was an innocent explanation or non-accidental explanation;

(j) The ophthalmic evidence is only one part of the picture, a piece of the jigsaw which is before the Court

 

 

 

  1. The conclusions I draw from the ENT doctors are as follows:

(i) All the doctors accepted that Ellie had abnormalities: the cyst, the cleft and laryngomalacia. They also accepted that there were indications she suffered from reflux and the cleft could contribute to possible aspiration of the gastric products.

(ii) They accepted that she had intermittent stridor, noisy breathing indicating an airway obstruction, which could have been caused by the cyst, and/or the laryngomalacia and positioning of the head, but that it was mild and there was no evidence that it was a moderate or severe obstruction.

(iii) None were aware of a link between airway obstruction whether severe or not and intracranial haemorrhages either in personal experience or in medical literature.

(iv) Mr Joseph alone indicated that a sudden reflux could cause a spasm and a closure of the airway which would be sudden and silent, but producing a floppy child.

(v) None of the doctors had examined or treated a child with the three physical abnormalities, nor had they read about such a case, even without the additional complication of reflux.

(vi) They agreed she was an unusual child

 

 

 

  1. The conclusions I draw from the radiological/neuroradiological evidence are as follows:-

(i) Any fluid seen in the subdural space is an abnormality and cause for concern. It has a pathological cause.

(ii) There are abnormalities seen on the scans and there was broad agreement as to what is visible. The differences lie in the interpretations; what the abnormalities represented;

(iii) There were darker areas of attenuation over the frontal areas and convexities containing small areas of brighter attenuation:

(a) It is agreed the small bright areas represent acute blood;

(b) The darker areas could either be:

(i) Chronic subdural haemorrhage, possible dating back to Ellie’s delivery; or

(ii) Acute traumatic effusions being cerebro-spinal fluid having leaked through damage to the arachnoid;

(iv) Acute blood is seen as brighter attenuation up to 7 to 10 days after bleeding;

(v) Chronic bleeds are seen as darker attenuation and are recognised between 2 to 3 weeks after the bleed. An upper age limited is not possible to assess from the scans;

(vi) Birth related subdural haemorrhages do occur, particularly after a Ventouse delivery. They are asymmetrical and usually resolve/disappear by 4 weeks: some may remain longer;

(vii) New bleeds creating acute subdural haemorrhages require a force which is beyond that of every day handling. An observer would know it was excessive and inappropriate and likely to cause injury to a child;

(viii) Re-bleeds are possible into chronic subdural haemorrhages either around damaged bridging veins or from membranes within the haemorrhages. Lesser force is required to trigger a re-bleed.

(ix) Subdural haemorrhages in themselves do not cause brain injury: but are markers of injury.

(x) Ellie suffered from encephalopathy, dysfunction of the brain which caused her collapse and presentation to hospital;

(xi) There was no evidence of hypoxic-ischaemic damage in the brain, but that did not exclude such injury being present, but not visible and thus very mild;

(xii) Ellie appears to have made a complete recovery from the neurological point of view;

(xiii) There was no evidence on the scans of scalp swelling, or skull fractures or other visible injury to the head. (I leave aside the injuries to the eyes).

(xiv) Whether there were re-bleeds into chronic subdural haemorrhages or an acute traumatic effusion there needed to be an incident of trauma: the degree of force required for such trauma depended upon whether it was a re-bleed or a bleed de novo;

(xv) The traumatic event would have occurred before her presentation to hospital, and most likely shortly, if not immediately before her collapse;

(xvi) The traumatic event could be one involving a shaking and/or impact, or if only enough to trigger a re-bleed a minor force or even the alleged bumpy buggy ride;

(xvii) In Dr Stoodley’s opinion the trauma sufficient to trigger re-bleed’s would not account for the acute bleeding at the back of the head and in the posterior fossa nor the encephalopathy.

 

 

  1. The conclusions to draw from the evidence of Mr Richards and Mr Jayamohan are:

(i) The two neurosurgeons were in broad agreement with the findings on the scans by the neuroradiologists. Like them Mr Richards and Mr Jayamahon could not agree as to the interpretation of the darker attenuation in the frontal areas. They both agreed there was fresh blood within the darker areas and at the back of the head and in the posterior fossa.

(ii) They agreed that an explanation was required for that fresh blood, and the blood at the back of the head and in the posterior fossa could not be accounted for by a re-bleed or movement between compartments and thus a lesser force. They agreed that the most likely explanation was that of trauma.

(iii) They also agreed that Ellie had suffered some brain dysfunction shortly before her presentation to hospital for which there was no obvious answer: the force required for a re-bleed would not suffice.

(iv) They were of the overall view that the encephalopathy and trauma occurred at about the same time and could have been caused by the same event.

(v) Both were presented with Professor Fleming’s evidence and proposition that Ellie suffered an airway obstruction causing cessation of breathing. In her struggle to breathe there was a sharp rise in intracranial pressure which caused her to collapse. They were both prepared to accept this as a possible cause for the brain dysfunction.

(vi) They were also both prepared to accept that the father unintentionally inflicted injury to Ellie in his panic to help her. Neither could say from the scans that the trauma Ellie sustained was accidental or non-accidental in motive. That was for the Court to decide.

(vii) Both acknowledged that the injuries could have been sustained as a result of an unknown cause.

 

 

 

A significant issue was the detection of a cyst in the child’s throat, with the mechanism being that the cyst had caused breathing difficulties, which in turned caused the child to enter into a fit, which caused the subdural haematoma and the retinal haemorrhaging.  This had potentially been compounded by the child travelling in a car seat, which if the child had (as in this case) weak neck muscles the head can tip forward and block the airway.

 

 

The Court was assisted by the paediatric overview from Dr Fleming

 

  1. Sometimes in cases of alleged abusively injured children a paediatric ‘overview’ adds little to the overall medical evidence. In this case Professor Fleming with his great interest and experience in airway obstruction and near life-threatening events in children was able to look at this case and its history in the light of recent medical thinking and with a very objective eye.
  1. He was cautious, fully aware that there is much to be learnt in medical science particularly with reference to life-threatening events in infants, and the many aspects of their physiology:

“The medical professionals are sometimes arrogant in thinking we know the answers, but our understanding is changing rapidly at present. There are things we know about now that we did not know about 3 or 4 years ago. That is why I am conscious that despite all the investigations we can do in children who have had such life-threatening episodes we don’t actually find an answer as to what’s caused them. Not finding an answer is not to me the same as saying somebody must have done it”.

  1. If I may say, wise comments from a very experienced practitioner and one of which doctors and lawyers alike should take heed.

 

 

 

 

And the Judge then pulled all of this together, and an analysis of the parents evidence.

 

  1. 15 February
  1. I turn now to the 15 February. Should I make the finding sought that the father caused Ellie to suffer a non-accidental head injury by doing something, a shake, a shake with impact or other mechanism in a brief loss of temper or control?
  1. Do I accept the father’s evidence that something silently happened to her before in panic he scooped her out of the car seat?
  1. Do I accept that his actions of scooping her up, putting her onto the bed inadvertently caused her some injury, but only after she had collapsed?
  1. The father’s description of Ellie’s collapse, appearance and floppiness are descriptions of an encephalopathy or brain dysfunction.
  1. Her presentation to hospital and clinical observations are those seen typically in an infant who is suffering from an encephalopathic illness.
  1. It is accepted that the illness could have either an innocent explanation or a non-accidental one.
  1. The investigations undertaken have shown that she was not suffering from any illness or other disorder and unless there was an unknown cause, not impossible, the doctors effectively excluded an illness or disorder.
  1. The CT and MRI scans reveal subdural collections in the frontal area, and at the back of the head and in the posterior fossa. The frontal collections contain acute blood, and there is acute blood at the rear of the head. There is a dispute as between the neuroradiologists and neurosurgeons as to what the frontal collections represent; there is no dispute as to the presence of acute blood in the various areas. There is no dispute that the acute blood was caused by trauma, the exact nature of the mechanism and force required is disputed, subject to the individuals’ interpretations.
  1. The important blood to consider is that at the back of the head and in the posterior fossa and the possible mechanisms and forces required to cause it.
  1. Otherwise the neuroradiologists and neurosurgeons agree that on the scans there was no other evidence of hypoxic-ischaemic damage or injury to brain, and no evidence of an impact to the skull or scalp. The radiology revealed no other injury to Ellie’s body and other than the burns there were no other marks or bruises on Ellie.
  1. There were retinal haemorrhages present which were not typical of a shaking injury and which required explanation.
  1. Ellie was an unusual child with three abnormalities in the laryngeal area. The cyst and the cleft are rare features, the laryngomalacia more common. That combination with the cyst could have caused her intermittent stridor. No doctor appearing before me had ever encountered a child with all three abnormalities present.
  1. She also suffered from reflux.
  1. There was strong evidence from Professor Fleming that Ellie could have suffered from airway obstruction, either as a result of laryngo spasm triggered by reflux, or by her head dropping forward whilst asleep in her car seat. Either way she could have collapsed through an inability to breathe and consequential lack of oxygen. Either would give rise to rapid changes in intra thoracic and intra-cranial pressure which in turn could have caused the retinal haemorrhages.
  1. The experts, the neurosurgeons in particular and the ophthalmologists were able to accept this hypothesis as possible.
  1. Professor Fleming was not so certain about the acute blood at the rear of the head, and I felt the other evidence that indicated a trauma of some form was required to cause it was stronger.
  1. The neurosurgeons accepted that a swift arc like movement from the car seat and a bang onto the bed following a collapse induced by an airway obstruction was a possible explanation for the presence of the acute blood both at the back and in the frontal regions. Even Dr Stoodley who preferred an overall inflicted shaking causation could accept it as a possibility but an unlikely one.
  1. On the medical evidence alone there is no strong pointer that the injuries Ellie sustained were inflicted through a loss of control or temper by a perpetrator shortly before her collapse.
  1. I go further. On the medical evidence alone I think the Local Authority has difficulties. There are too many pointers which question a conclusion of inflicted injury. There is a strong pointer indicating an innocent explanation for the collapse, being the airway obstruction as propounded by Professor Fleming and accepted by the neurosurgeons as possible.
  1. The Local Authority has to prove its case. In my view on the medical evidence alone I do not think that it has established on the balance of probabilities that the injuries Ellie sustained were non-accidental in origin. There is too much strong evidence flowing the other way. I do not make the finding sought by the Local Authority that she was a victim of an abusive head injury.
  1. Where does that leave me? Am I in a position to take the matter further, or merely leave it as a case of no find of fact against the father?
  1. In fairness to all I should try to go further. Ellie and [OTHER CHILD] when they grown up need to know with as much clarity as possible what happened to Ellie in February 2007 and why they were separated from their parents while still infants.
  1. The parents have suffered enormous loss as a result of the findings. If I can exonerate them from wrongdoing in February 2007, the father in particular, I should do so. This family, all three generations, have suffered as a result of the findings made in January 2008. The grandparents’ planned quiet retirement was invaded by their granddaughter. It has been their pleasure and enjoyment to bring her up, but it has been at an enormous physical and emotional cost. Neither is in the first flush of youth or best of health. It could not have been easy for them to change gear and take on a toddler. They have done well. Ellie is thriving in their care. Without them she would have been adopted, but the additional cost is they have lost touch with their own daughter, and she with her siblings. The family circle has been shattered. I hope the damage can be repaired, and if it be possible any work might be assisted by all the adults knowing what I think probably happened to Ellie that February evening.
  1. I therefore ask myself: Do I accept the father’s account of the events of that early evening, that all was peace and calm before Ellie for some reason collapsed; and do I accept his now not clear account of his reaction to seeing his daughter lifeless?
  1. There is corroboration from the parents themselves describing intermittent noisy breathing and episodes of intense paleness. Professor Fleming accepts these could be symptoms of the underlying, and then unknown laryngeal abnormalities.
  1. There is corroboration from Dan the flat mate that all was quiet and he did not know Ellie was there until summoned by the father.
  1. There is corroboration from the 999 tape and transcript that the father was panicking.
  1. The incident took place more than 5 years ago. The father was panicking and frightened for his daughter and I accept it is likely in those circumstances he may not now recall the exact details of what he did after the collapse or what he said on the tape. Even nearer the time given his panicky state of mind he may not have recalled the precise details. Such corroborative evidence as is available supports his account.
  1. It is inherently unlikely that a ‘silent’ something happened which caused the father to silently lose control and silently inflict an injury upon Ellie. He is not someone who reacts silently, even in court when he disagreed with a piece of evidence he was muttering and overheard by others. If there had been an event which had caused him to lose his temper or control he would not have been silent, he would have been heard by Dan. There would have been some form of commotion.
  1. According to the neurosurgeons in particular his account of a collapse followed by a panicked reaction involving a swift arc-like movement onto the bed could have had the same effect in Ellie as if she has been shaken or shaken with an impact onto a soft surface.
  1. On the medical front there is an innocent explanation for all the injuries Ellie sustained having taken into account the father’s own evidence. It is a complex picture that involves two innocent events in quick succession.
  1. Overall, I felt both parents wanted to be open with me. I felt in this context the father was anxious to be truthful. He did not say he remembered it all; he did not try to provide new information. I accept his account. I do not think he inflicted an abusive injury to Ellie. It may well be that inadvertently he injured her, but only in a reactive way after she had collapsed. I wonder how many parents in a panic situation scooping up a lifeless infant from a car seat remember to protect the wobbly head. I am sure many parents would not.
  1. It may be in failing to do so and swinging her round too fast he mimicked a rotational shaking movement; maybe he banged her head too hard onto the bed. He was a new and inexperienced parent reacting to a very difficult and frightening event. He was seeking to revive his baby. He may well have acted in too much haste and with too much force but not intending to harm her in any way.
  1. I do not blame him for causing injury to Ellie, while I accept that he may have done so with all good intention to help her.
  1. I hope everyone will accept that I do not attach any culpability to him, and that in my Judgment he is exonerated from causing her any inflicted injury. If, in fact, he did cause her injury it was purely accidental.

 

 

 

 

There are some final conclusions, which are very important. One is the Judge’s firm views that the involvement of neurosurgeons in a case of this kind is vital, with which I completely agree. Another is that the role of the Guardian, and her representatives in this case was pro-active and assisting the Court in reaching the truth, rather than the passive ‘deckchair brief’ that it often becomes.

 

We have had three judgments this year, McFarlane LJ,  Justice Mostyn and now this one, and this is the strongest of the three.  I would say that this is, because it is a positive decision praising the Guardian and her representatives for being pro-active, that it is now authority for the principle that this is what a Guardian and his or her team should do in fact finding hearings.  Fold up the deck-chair and get stuck into the medical records.

 

If you are representing a Guardian in a fact-finding hearing, or if you are involved in a fact-finding hearing and think the Guardian is being entirely passive, these passages are vitally important.  [My underlining]

 

I could NOT agree more forcefully with these sentiments – it isn’t for the Guardian to prosecute or defend, or to take a side, but to ensure that the possibilities are properly explored and that the Court has the best chance of reaching the truth for the children concerned.

 

  1. And Finally
  1. The medical evidence which I heard is very distant from that heard by HHJ Atkins in January 2008.
  1. To begin with neither he nor the criminal trial, nor indeed the Court of Appeal had sight of the CT scan of 26 February. Its first appearance in Court was before me and before I heard any evidence. Why it was not produced to Judge Atkins I do not know. It is a most valuable document identifying the subdural collections, the acute blood in the subdural space, and the cyst in the larynx.
  1. The Learned Judge heard evidence from Dr Rich, the “treating” Consultant Neuroradiologist, and Dr McConachie, the expert Consultant Neuroradiologist, who declined any further instructions in these proceedings. I did not. He did not have the evidence of Dr Anslow or Dr Stoodley.
  1. He heard from Dr Salem, Dr Dutta, and had reports from Dr Shepherd, all being ‘treating’ doctors. He heard from Dr Lloyd who was jointly instructed, and Dr Harding instructed by the mother. I did not.
  1. He heard from Mr Richards who has never seen the whole medical evidence. He did not hear or see any report from Dr Jayamohan.
  1. He heard from Professor Proops and Mr Joseph, both Consultant Otolaryngologists and ‘expert’ witnesses. He also heard from Mr Daya, the treating Consultant ENT Surgeon. I did not.
  1. He heard from Miss Leitch the ‘treating’ Ophthalmic Surgeon and Mr Gregson and Professor Taylor who were instructed as expert Ophthalmologists. I did not hear Miss Leitch.
  1. He also heard from Dr Cussons, a Consultant in Burns and Plastic surgery. Although I have seen his report and views he was not required, and I preferred the more pragmatic view of Professor Fleming.
  1. The Learned Judge did not hear from Professor Fleming, who was particularly instructed by the parties for this hearing as an expert paediatrician with considerable experience and interest in treating infants with airway and breathing difficulties, and those who have suffered a life-threatening event.
  1. It was very fortunate that he was available. The issue of airway obstruction had been raised long ago, particularly by Dr Salem who called for an expert. Although Dr Harding accepted the proposition her evidence was not so strong. Professor Proops’ evidence discounted airway obstruction as did Dr Lloyd.
  1. I have not read HHJ Atkins’ Judgment of January 2008 or the summing up of HHJ Stow, and deliberately so as to ensure that I dealt with the ‘raw’ medical evidence only and not that as recorded or interpreted by another. I cannot and do not criticise Judge Atkins Judgment, and I make no comment upon Judge Stow’s summing up.
  1. I have come to different conclusions from Judge Atkins on different and more expansive evidence. In my view it is important for me to emphasise this so that the parents, the grandparents and the girls in time can appreciate this. It may also be of some value to the Local Authority.
  1. I wish only to add a few comments and thoughts.
  1. I add also that in many cases involving a fact-finding hearing of alleged abusive injury a Guardian plays little or no part in the proceedings at that stage.
  1. In this case although I gave leave that the Guardian personally need not attend every day she was most ably represented by experienced Queen’s Counsel and experienced Junior, newly drawn from the ranks of solicitors.
  1. The Guardian through them was kept closely informed of the medical evidence. She was able to reflect upon it, and give clear instructions. She came to hear the parents’ own evidence, which in itself is important if a case is to go further.
  1. She gave clear instructions for her written submissions.
  1. I appreciate that it is important to consider costs in such cases, but in this case the Guardian’s involvement and interventions have been of great assistance and significance in the final outcome.
  1. There is no reason why a Guardian should not play an active part in a fact-finding hearing. There are very good reasons why a Guardian should.
  1. A Guardian represents the interests of the child. It is in the interests of that child that the truth is ascertained with as much clarity as possible.
  1. It is the child’s right to know in later life what happened in his/her childhood, and why certain decisions were taken.
  1. In days gone by when I was still practising, and when some children were represented by a Guardian, then the Official Solicitor, the Guardian’s Counsel took an active part in the fact-finding part of the hearing and was expected to do by the Judge and other Counsel ensuring that the relevant and appropriate questions were asked and issues raised for the Judge.
  1. In the appropriate case a Guardian should not only be represented but personally attend parts if not all of a fact-finding hearing, and be prepared to play as full a part as is necessary in that hearing: only then can the child be properly represented.
  1. The instruction and evidence of Professor Fleming only emphasises in cases of alleged inflicted injury and difficult medical issues to resolve the need for all parties and their legal advisors and Courts to consider with care the type of expert required, and the particular expert’s expertise and experience.
  1. It was also important in this case to have the evidence of two experienced Consultant Neurosurgeons. The evidence of a neurosurgeon tends to be broader than that of a neuroradiologist. A consultant neurosurgeon is capable of viewing a scan and interpreting what he sees, he then on operating will see the real thing, and see in fact what he saw as an image on a screen. He also has the advantage of meeting the parents or carer of an injured child, and indeed has to meet with and console grieving adults. Whilst working with the neuroradiologists discussing cases both neurosurgeons said they could read the scans, but deferred to the neuroradiologists for subtleties on the scan.
  1. Again in some cases and with an eye to the costs of cases it may be appropriate to consider instructing an expert neurosurgeon rather than neuroradiologists. In many cases the evidence only of a neuroradiologist is adequate.
  1. It is also important to reflect that in the last 5 years further research has been carried out and papers published on head injuries to infants. There has been much debate on the medical and legal worlds as to how or why some injuries occurred. The debate has emphasised that there is still much that is not fully understood and much to learn. Professor Fleming put it so well, that there was a need to be cautious, not arrogant, and to know that medical science is still learning.
  1. I simply add: “we do not know it all”.
  1. The late Mrs Justice Bracewell once commented to me after a particularly difficult case that it was at the “very edge of medical science”, “she could only do her best in the light of the evidence put to her”.
  1. Mr Justice Hedley is right: “we are fearfully and wonderfully made”.

 

[See, I said we’d be seeing that line again.  It”s from the King James Bible, Psalm 139:14 if you’re interested]

 

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and said ‘oh oh, smother me mother’

Posted on October 3, 2012 by suesspiciousminds

Tasteless title, for which I apologise, but it is a Smiths song.  (the passing of time, and all of its sickening crimes, is making me sad again)

A consideration of AA (A Child) 2012 EWHC 2647 (Fam)  – especially for John Bolch, as I am now taking requests  (other than of the ‘why don’t you just eff off’ variety)

http://www.bailii.org/ew/cases/EWHC/Fam/2012/2647.html

Firstly, either Justice Baker has had the most difficult caseload of all time, or (more likely) he’s had a pile of published judgments in his in-tray waiting to be signed off for a while and has done about six in a week, because this is him again.

Secondly, its another in the developing body of High Court caselaw where Judges who might have been accepting of medical evidence (particularly if it stood up to cross-examination) are now setting it in a broader judicial context of the totality of the evidence to be assessed, and recognition that today’s medical dogma might well be tomorrow’s “well, we USED to think”  – I have been told today of a very interesting judgment forthcoming on this topic where the conclusion is that an earlier fact finding on very serious injuries resulted in a miscarriage of justice.

But anyway, onto RE AA.

Here is the opening background, and one can tell immediately that the mother is going to be under pressure in the finding of fact hearing

    1. This is a tragic and extremely difficult case. On 6th January 2011, a little boy, whom I shall refer to as J, died while in the sole care of his mother. Twelve weeks later, on 1st April 2011, his older brother, whom I shall refer to as B, then aged four, was found in a state of acute collapse, also whilst in the sole care of his mother, and died three days later in hospital.

 

  1. Police began an extensive investigation, which is still ongoing, into the causes of those deaths. The local authority started care proceedings in respect of the surviving younger sister of the boys, whom I shall refer to as A, now aged two. The local authority contends that the threshold under section 31 of the Children Act for the making of care orders is crossed in this case and seeks findings, first, that the mother neglected her children and, secondly and more seriously, that she was responsible for the deaths of the two boys by asphyxiation. The proceedings were transferred to the High Court and listed before me for a fact-finding hearing held in Portsmouth. This judgment is delivered at the conclusion of that hearing.

Regardless of how things play out, it is plain to see that professionals are going to have high levels of anxiety about this case.  Particularly given the existence of a third child.

And here’s a warning that idle remarks, made without any malice, can take on horrible significance when looked at through the cold microscope of forensic analysis

On another occasion in November, the mother became drunk when caring for the children, who were taken round to DA’s house. There is evidence that on occasions the mother expressed frustration about the demands for caring for the children. She was a regular user of text-messaging and the internet MSN message service and, when chatting to friends by these means, she would on occasions grumble about the children. One example, on the evening prior to J’s death, contains the statement that she could have “fucking killed” B, because he had made J cry and been disobedient, and added an additional remark: “I wish I didn’t have fucking kids.”

The case sets out the detailed medical history, which I won’t go into – I couldn’t summarise it better than the Judge has already done, and if you want to read it, I would go to the source.

The Judge sets out the legal position on reliance on medical experts, with the Cannings case unsurprisingly looming large in that regard.

The approach to expert evidence

    1. It is particularly important to bear in mind the point just made above where, as is invariably the case in cases of suspected physical abuse, the evidence adduced includes the opinion of the medical experts. As Ryder J observed in A County Council v A Mother and others [2005] EWHC Fam. 31,

 

“A factual decision must be based on all available materials, i.e. be judged in context and not just upon medical or scientific materials, no matter how cogent they may in isolation seem to be.”

    1. Whilst appropriate attention must be paid to the opinion of the medical experts, their opinions need to be considered in the context of all the circumstances. In A County Council v K D & L [2005] EWHC 144 (Fam) at paragraphs 39 and 44, Charles J observed,

 

“It is important to remember (1) that the roles of the court and the expert are distinct and (2) it is the court that is in the position to weigh up the expert evidence against its findings on the other evidence. The judge must always remember that he or she is the person who makes the final decision.”

Later in the same judgment, Charles J added at paragraph 49,

“In a case where the medical evidence is to the effect that the likely cause is non-accidental and thus  human agency, a court can reach a finding on the totality of the evidence either (a) that on the balance of probability an injury has a natural cause, or is not a non-accidental injury, or (b) that a local authority has not established the existence of the threshold to the civil standard of proof … The other side of the coin is that in a case where the medical evidence is that there is nothing diagnostic of a non-accidental injury or human agency and the clinical observations of the child, although consistent with non-accidental injury or human agency, are the type asserted is more usually associated with accidental injury or infection, a court can reach a finding on the totality of the evidence that, on the balance of probability there has been a non-accidental injury or human agency as asserted and the threshold is established.”

    1. In assessing the expert evidence, I bear in mind that cases involving an allegation of smothering involve a multi-disciplinary analysis of the medical information conducted by a group of specialists, each bringing their own expertise to bear on the problem. The court must be careful to ensure that each expert keeps within the bounds of their own expertise and defers where appropriate to the expertise of others (see the observations of Mrs Justice Eleanor King in Re S [2009] EWHC 2115 (Fam).

 

    1. On behalf of the mother, Miss Judd and Miss Pine-Coffin invite me to bear in mind the decision of the Court of Appeal in the criminal case of R v Cannings [2004] EWCA 1 Crim. In that case a mother had been convicted of the murder of her two children who had simply stopped breathing. The mother’s two other children had experienced apparent life-threatening events taking a similar form. The Court of Appeal Criminal Division quashed the convictions. There was no evidence other than repeated incidents of breathing having ceased. There was serious disagreement between experts as to the cause of death. There was fresh evidence as to hereditary factors pointing to a possible genetic cause. In those circumstances, the Court of Appeal held that it could not be said that a natural cause could be excluded as a reasonable possible explanation.

 

    1. The impact of the Cannings decision on care proceedings was considered by the Court of Appeal in Re U, Re B, supra. Dame Elizabeth Butler-Sloss P identified the following considerations arising from the Cannings decision as being of direct application in care proceedings:

 

“(1) The cause of an injury or an episode that cannot be explained scientifically remains equivocal.

(2) Recurrence is not in itself prohibitive.

(3) Particular caution is necessary in any case where the medical experts disagree, one opinion declined to exclude a reasonable possibility of natural cause.

(4) The court must always be on the guard against the over-dogmatic expert, the expert whose reputation is at stake or the expert who has developed a scientific prejudice.

(5) The judge in care proceedings must never forget that today’s medical certainty may be discarded by the next generation of experts or that scientific research would throw a light into corners that are at present dark.”

    1. Usually, it is unnecessary for the Family Court to go further into the analysis by the Court of Appeal in Cannings, but in this case Miss Judd invites the court to have regard to the whole of that decision. I remind myself that it was a criminal case involving the deaths of infants under the age of six months, whereas these are family proceedings involving the deaths of two children aged two and four. Nevertheless, I find the analysis by the Court of Appeal of what Judge LJ, as he then was, described as two critical problems, as relevant to the current case.

 

    1. First, I note the paragraphs specifically cited by Miss Judd, in particular paragraphs 10 to 13 of the judgment in Cannings, which amplify point 2 in Butler-Sloss P’s summary in Re U, Re B cited above.

 

“(10) It would probably be helpful at the outset to encapsulate different possible approaches to cases where three infant deaths have occurred in the same family, each apparently unexplained and for each of which there is no evidence extraneous to the expert evidence that harm was or must have been inflicted, for example, indications of or admissions of violence or a pattern of ill-treatment. Nowadays such events in the same family are rare, very rare. One approach is to examine each death to see whether it is possible to identify one or other of the known natural causes of infant death. If this cannot be done, the rarity of such incidents in the same family is thought to raise a very powerful inference that the deaths must have resulted from deliberate harm. The alternative approach is to start with the same fact, that three unexplained deaths in the same family are indeed rare, but thereafter to proceed on the basis that if there is nothing to explain them, in our current state of knowledge at any rate, they remain unexplained and still, despite the known fact that some parents do smother their infant children, possible natural deaths.

(11) It would immediately be apparent that much depends on the starting point which is adopted. The first approach is, putting it colloquially, that lightning does not strike three times in the same place. If so, the route to a finding of guilt is wide open. Almost any other piece of evidence can reasonably be interpreted to fit this conclusion. For example, if a mother who has lost three babies behaved or responded oddly or strangely or not in accordance with some theoretically “normal” way of behaving when faced with such a disaster, her behaviour might be thought to confirm the conclusion that lightning could not indeed have struck three times. If, however, the deaths were natural, virtually everything done by the mother on discovering such shattering and repeated disasters would be readily understandable as personal manifestations of profound natural shock and grief.”

Later at (13):

“Reverting to the two possible approaches to the problems posed in a case like this, in a criminal prosecution we have no doubt that what we have described as the second approach is correct. Whether there are one, two or even three deaths, the exclusion of currently known natural causes of infant death does not establish that the death or deaths resulted from the deliberate infliction of harm. That represents not only the legal principle, which must be applied in any event, but, in addition, as we shall see, at the very least, it appears to us to coincide with the views of a reputable body of expert medical opinion.”

    1. Secondly, in considering the Cannings judgment, I note the observations of Judge LJ at paragraph 22, which amplifies point 5 in Butler-Sloss P’s summary in Re U, Re B cited above.

 

“We have read bundles of reports from numerous experts of great distinction in this field, together with transcripts of their evidence. If we have derived an overwhelming and abiding impression from studying this material, it is that a great deal about death in infancy, and its causes, remains as yet unknown and undiscovered. That impression is confirmed by counsel on both sides. Much work by dedicated men and women is devoted to this problem. No doubt one urgent objective is to reduce to an irreducible minimum the tragic waste of life and consequent life-scarring grief suffered by parents. In the process however much will also be learned about those deaths which are not natural, and are indeed the consequence of harmful parental activity. We cannot avoid the thought that some of the honest views expressed with reasonable confidence in the present case (on both sides of the argument) will have to be revised in years to come, when the fruits of continuing medical research, both here and internationally, become available. What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise should be met with an answering challenge.”

    1. With regard to this latter point, recent case law has emphasised the importance of taking into account, to the extent that it is appropriate in any case, the possibility of the unknown cause. The possibility was articulated by Moses LJ in R v Henderson-Butler and Oyediran [2010] EWCA Crim. 126 at paragraph 1:

 

“Where the prosecution is able, by advancing an array of experts, to identify a non-accidental injury and the defence can identify no alternative cause, it is tempting to conclude that the prosecution has proved its case. Such a temptation must be resisted. In this, as in so many fields of medicine, the evidence may be insufficient to exclude, beyond reasonable doubt, an unknown cause. As Cannings teaches, even where, on examination of all the evidence, every possible known cause has been excluded, the cause may still remain unknown.”

    1. In Re R, Care Proceedings Causation [2011] EWHC 1715 (Fam), Hedley J, who had been part of the constitution of the Court of Appeal in the Henderson case, developed this point further. At paragraph 10, he observed,

 

“A temptation there described is ever present in Family proceedings too and, in my judgment, should be as firmly resisted there as the courts are required to resist it in criminal law. In other words, there has to be factored into every case which concerns a discrete aetiology giving rise to significant harm, a consideration as to whether the cause is unknown. That affects neither the burden nor the standard of proof. It is simply a factor to be taken into account in deciding whether the causation advanced by the one shouldering the burden

of proof is established on the balance of probabilities.”

    1. Later in the judgment, at paragraph 19, Hedley J added this observation:

 

“In my judgment a conclusion of unknown aetiology in respect of an infant represents neither professional nor forensic failure. It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer non-accidental injury, merely from the absence of any other understood mechanism. Maybe it simply represents a general acknowledgment that we are fearfully and wonderfully made.”

Long term readers of this blog will know that I am a huge admirer of Hedley J, and this observation is very well made. I think on shaking cases we are getting very close, judicially speaking, to a conclusion that we simply cannot be sure until all of the evidence is tested forensically whether a child is likely to have been shaken or not, and as a result, I suspect that we may relatively soon get an appeal on an interlocutory decision to place in foster care,  a child suspected of having been shaken.

The Local Authority had run their threshold in parallel – on neglect, and on the far more serious allegations that the mother had smothered and killed two children. The Judge found that they had proved the neglect allegations.

    1. The local authority alleges that the mother is culpable of serious and repeated acts of neglect of her children and has set out this allegation in the schedule of findings filed in these proceedings. In their response on behalf of their client, the mother’s representatives have very substantially accepted the allegations. Some issues, however, remained and they have formed part of the hearing before me.

 

    1. Having considered the evidence, written and oral, I make the following findings on this aspect of the case:

 

(1) There is evidence that the mother struggled to cope with all of the children. In the early days after B was born, she was unable to cope with his care and often left him in the care of other people, including DA. On one occasion, feeling unable to manage, she left him at the social project where she was receiving support. Later she found it difficult to care for J and A together. As a result she did not always provide adequate attention, stimulation or boundaries for the children.

(2) The mother failed to prioritise her children’s physical and emotional needs, on occasions putting her own needs and interests first. She spent significant periods of time on the internet, including extensive periods communicating with friends via internet chat rooms. The children were expected to fit around the mother’s own wishes and needs. This was a particular concern for the experienced health visitor who gave evidence before me.

(3)On occasions the mother was emotionally neglectful towards the children. On one occasion she announced that she was placing the children in care and packed their bags before being talked out of this by support and social workers.

(4)The home conditions in which the children lived were frequently poor. The mother struggled to keep her home clean and tidy, despite repeated reminders from others, including DA. The home was often left cluttered with rubbish.

(5)On a number of occasions the mother failed to protect and supervise the children so that their safety was at risk. In September 2009, B covered himself in bleach. In October 2009, he was found sitting in bleach. In October 2009, J was taking to hospital having ingested Sudocrem. Stair-gates were fitted but on occasions left open. On other occasions dangerous items were left within the reach of the children, cans of spray, loose wall sockets, paracetamol, scissors, cleaning fluid and medication. On one occasion, J was observed by a health visitor to be in a position to turn a fire on and off. The mother failed on occasion to supervise the children in the street, on one occasion allowing J to walk so far ahead that he was able to cross a road by himself.

(6)The mother struggled to manage the care of the children so as to ensure that they were kept clean and had their nappies changed with sufficient regularity. J was noted on occasions to have a very dirty nappy and to be dressed in dirty, wet and sometimes inadequate clothing. As a result on occasions J and A had very sore bottoms and nappy rashes.

(7)The mother struggled to provide the children with appropriate food. She delayed starting B on solid food. She would give the children inappropriate food on occasions and rely excessively on junk food. J would be fed chocolate biscuits for breakfast. The mother struggled to manage A’s feeding regime as a baby and did not always follow advice on this topic. She told the health visitor that she could on occasions put J straight to bed without giving him any meal if they were late arriving home.

(8)The mother found it difficult to manage the children’s behaviour. She resorted on occasions to harsh chastisement of the children that was both inappropriate for their age and generally excessive. She would smack the children, perceiving their behaviour as “naughty,” not realising that it was often simple normal conduct to be expected of a lively, inquisitive toddler. She would shout at B when he was a baby in a vain effort to keep him quiet. She would resort to corporal punishment to an inappropriate and excessive extent. In October 2010 she was observed to slap B on the legs. She would threaten to smack the children by raising her hand. On occasions she put J in his room for excessive periods and sent him to bed at inappropriate times. On one occasion, as I find, she slapped B on the back of the head after he had run off.

(9)In November 2010 the mother was found drunk in charge of J and A. There is no evidence that this was anything other than an isolated incident; nonetheless it is a matter for considerable concern and jeopardised the safety of the children.

(10)The mother was provided with considerable support throughout the intervention of Social Services. Whilst there is some reason to question the level of support provided, the mother was not always as cooperative with the support workers who asked to assist her. The health visitor felt that her failure to take her advice was wilful. I bear in mind, however, that this mother suffers from a learning disability and I am unsure about the extent to which this was taken into account by the professionals who were trying to help her.

    1. There is a further allegation which concerns the father of the two younger children, GM. The mother reported that she had seen him poke J’s genitals with his finger. Despite her concern about this alleged behaviour, the mother continued to allow GM contact with the children. She states that she found it difficult to say no to him and still had feelings for him. The father has played no part in these proceedings. There has been no oral evidence about this matter and I am not in a position to make a finding about whether he did behave in a sexually inappropriate way towards J. I find however that the mother, knowing of the allegation that the father had behaved in that way, failed to protect J from further contact with him.

 

  1. Taken together, these findings about the mother’s treatment amount to serious and chronic neglect at a time when she was receiving considerable support through Social Services, as well as from her own mother, DA, and from friends and neighbours. Miss Davis and Miss Dewhurst, on behalf of the local authority, have rightly taken the view that it would be disproportionate to conduct an enquiry into each and every allegation about which there is documentary evidence that the mother was unable to cope, but I have heard enough to reach a clear conclusion. I conclude that this mother was simply unable to cope with the demands for caring for her children.

But on the major allegations, that the two children had been smothered (even in the context of those findings that the mother was unable to cope), the Judge did not agree that this was proven.

There were several clinical features which the experts explored . This is the passage of the judgment specifically on the expert evidence as to whether there was evidence of smothering (as opposed to any other possible cause of death)

Evidence of smothering

    1. So far as B is concerned, Dr Cartlidge found no evidence of any general health problems, nor any developmental problems. B was a previously healthy child who died suddenly and unexpectedly at the age of four and a half. Dr Cartlidge described this as “very unusual.” J died suddenly and unexpectedly, aged 28 months. Dr Cartlidge described this also as “very unusual.”

 

    1. Dr. Cartlidge considered that the evidence of a possible intentional airway obstruction in B’s case included: the fact that B was a healthy child; the fact that he had been well no more than half an hour before his collapse; the fact that he had collapsed suddenly without explanation; and the fact that his brother, J, had also collapsed and died suddenly without explanation. On the basis (which I have rejected above), that the petechiae were present on B on arrival at hospital, Dr Cartlidge concluded that they were consistent with, rather than diagnostic of asphyxiation, but stressed that his conclusion did not turn on the presence of the petechiae. Dr Cartlidge concluded that it is most likely that B died unnaturally and “smothering is probable.” He added, however, that “the medical evidence for smothering is not specific and relies quite heavily on the exclusion of other causes and an assessment of the case as a whole.”

 

    1. So far as J is concerned, again Dr Cartlidge found no evidence of any general health problems, nor any developmental problems. Like his brother, J was a previously healthy child who died suddenly and unexpectedly, in his case at the age of 28 months. Once again Dr Cartlidge described this as “very unusual.”

 

    1. Dr Cartlidge considered J’s earlier hospital admissions on two occasions to be significant. On 1st January, J had been well when he went to bed, but two hours later found unresponsive and jerky, with blue hands, feet and face. On admission to hospital some 50 minutes later, he was fully conscious and afebrile, but with petechiae over his chest and upper neck. In Dr Cartlidge’s opinion, this episode considered in isolation would support a diagnosis of a fit, although he noted that the evidence of a fever was weak and the temperature taken in hospital over 37.9 degrees Celsius was not usually sufficient to trigger a febrile fit. So far as J’s second admission to hospital was concerned on 3rd January, Dr Cartlidge noted that once again J had been well or reasonably well at the time he went to bed. Several hours later, he was found pale with staring eyes and possibly twitching of his hands. On admission to hospital, J was found to be suffering from chicken pox, but was very energetic and afebrile. In those circumstances, Dr Cartlidge ruled out the possibility that he had suffered from chicken pox encephalitis on this occasion. Once again Dr Cartlidge considered that this episode, taken in isolation, would not be of significance. However, when considered in the light of the later events, he considers that the admissions to hospital on 1st and 3rd January were concerning. The events that are said to have taken place on those occasions were similar to later events in J’s and B’s lives that resulted in their deaths. However, J’s clinical features on both 1st and 3rd January were not typical of a cardiac arrhythmia. Dr Cartlidge thought that smothering could have caused the clinical features in J on both 1st and 3rd January, as well as those described in both children immediately prior to their deaths. He therefore concluded that smothering was a plausible explanation for J’s death, but added again that medical evidence of smothering “is not specific and relies quite heavily on the exclusion of other causes and the assessment of the case as a whole.”

 

    1. In his oral evidence, Dr Cartlidge said that in his clinical practice he had only come across two cases of children of this age dying without any known cause. He had no experience of two children from the same family dying in such circumstances and he was unaware of any epidemiological study of childhood deaths involving this age group. He was asked to consider a paper produced by counsel for the mother entitled, “Smothering children older than one year of age, diagnostic significance of morphological findings,” by Banaschak and Others (2003) published by Forensic Science International. This paper led Dr Cartlidge to reflect on how B, at the age of four and a half, would have been expected to struggle quite vigorously if an attempt was made to smother him. Cross-examined by Miss Judd, he acknowledged that it was more surprising that there were no marks on the four-year-old child.

 

    1. In his oral evidence, Dr White said that the presence of physical signs of smothering would depend on the size and strength of the victim, the size and strength of the assailant and the method by which smothering was inflicted. In the case of child victims, the older the child, the more likely he or she was to struggle and the greater the likelihood of physical signs. Dr White considered that it was possible that B would have scratched himself in an attempt to prevent suffocation, but the fact that there were no scratch marks observed on B did not rule out suffocation as an explanation.

 

    1. In passing, I remind myself that Dr White noted two small marks, bruises, on the top of B’s head during his post-mortem examination. He did not, however, suggest that they were indicative of a physical assault. The local authority did not ask the mother about these bruises, nor did they feature at all in the local authority’s case.

 

    1. The striking picture provided by the consultant in emergency care, Dr Beardsall, was that B looked like he was sleeping, rather than suffering a life-threatening event.

 

  1. Having found, as explained above, that the petechiae on B’s face were not present when he was admitted to hospital, I conclude that there is no clinical evidence of asphyxiation other than the fact that two children died suddenly with cardiac failure, for which no cause had been identified.

So, the Judge concluded that although the deaths had unusual features, there was not clinical evidence to show that they had been asphyxiated, other than that the deaths had no identified cause.  He reminded himself of the other evidence, the number of genetic factors that were particular to this family and the mother’s evidence (particularly that her emphatic denials were convincing) and that whilst he had found her culpable of neglect such that the threshold was made out, there was still a marked difference between that neglect and deliberate murder of two children.

    1. Miss Judd rightly points out that, whilst the various experts have pointed to the lack of evidence of any disease or condition that could have caused the death of either J or B, there is equally no evidence of smothering. She submits that it is no more likely that this mother smothered each child without leaving any signs, than that the child died of an unknown, probably as yet unrecognised, cardiac cause.

 

    1. This mother has a variety of conditions which are likely to be genetic in origin. Dr Newbury-Ecob accepted that the new variant found in the KCNH2 gene, whilst not a cause of LQTS, might lead to a susceptibility or risk of arrhythmia in the presence of other factors, either genetic or environmental and might be associated with his death in some unknown way. Dr Martin noted that “there are quite possibly a whole host of genetic conditions we know nothing about.” The clear impression from his evidence is that the genetic understanding of cardiac disorders is still evolving.

 

    1. I recall again the observations of Judge LJ in Canningsquoted above, in particular that “where there are one, two or even three deaths, the exclusion of currently known natural causes of infant death does not establish that the death or deaths resulted from the deliberate infliction of harm” and that “a great deal about death in infancy and its causes remain as yet unknown and undiscovered.” I also have in mind the observation of Butler-Sloss P in Re U, Re B cited above: “The cause of an injury or episode that cannot be scientifically explained remains equivocal. Recurrence in itself is not prohibitive. The judge in care proceedings must never forget that today’s medical certainty may be discarded by the next generation of experts or that scientific research would throw light into corners that are at present dark.” Finally, I remember the wise words of Hedley J in Re R, also quoted above: “there has to be factored into every case which concerns a discrete aetiology giving rise to significant harm, a consideration as to whether the cause is unknown …. a conclusion of unknown aetiology in respect of an infant represents neither professional nor forensic failure. It simply recognises that we still have much to learn and it also recognises that it is dangerous and wrong to infer non-accidental injury, merely from the absence of any other understood mechanism.”

 

    1. I have given extremely careful attention to the opinions of all the experts and Dr Cartlidge in particular. I acknowledge that there is a significant possibility that this mother was responsible for the deaths of the boys and my mind has fluctuated during the course of this hearing and in my subsequent deliberations. There may be in due course other evidence that bears upon this issue. Having considered all the evidence put before me, however, I find that the local authority has not proved on a balance of probabilities that this mother smothered either J or B.

 

  1. The consequence of my finding is that, for the purposes of these proceedings, the court and the parties will proceed on the basis that the mother did not smother the boys. For the reasons explained above, however, I have found that the mother was responsible for significant acts of neglect of all the children and on that basis the threshold conditions under Section 31 of the Children Act are satisfied.

This body of caselaw may very well be a watershed moment in care proceedings, where the Courts began taking a stance that the presentation of the parents in evidence can be as pivotal as the seemingly damning medical evidence laid against them, and that mere lack of an alternative plausible explanation than non-accidental injury does not necessarily equate to NAI.  It is liable to lead to the job of Local Authorities in such complex medical cases to be more akin to marshalling and testing the evidence rather than the quasi-prosecutor role that traditionally accompanies trying to prove threshold at a finding of fact hearing.  It is also liable to make senior figures in Local Authorities very nervous about fact finding hearings where the outcomes are now so hard to predict, and the costs so vast.

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Is there truly such a thing as an ‘anonymous’ referral?

Posted on September 24, 2012 by suesspiciousminds

 

 A discussion of Re J (A Child:Disclosure) 2012

The case can be found here :-

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1204.html

 

 

This was an appeal arising from private law proceedings, but the principles are likely to apply (if not be even more apposite) to public law proceedings.

 

Effectively, within the time that private law proceedings were going on, an allegation of sexual misconduct was raised against the father.  The allegations were made to the Local Authority, who then alerted the mother that allegations of a serious kind, that they had some confidence in, had been made.

 

The referrer had requested anonymity.

 

(We go back here to D v NSPCC 1978 AC 171  which established that a principle called  Public Interest Immunity applied to information provided to a child protection agency – like NSPCC or Social Services,  and that there was a broad public interest in individuals being able to know that they could make those referrals in confidence.    In particular that they wouldn’t face threats, violence or harassment as a result of having made that referral.

 

There’s a larger public debate here, which can easily be understood if you switch the word ‘referral’ with ‘allegation’   – it’s appropriate for someone to be able to make a referral in confidence, but if you put yourself in the place of a parent who is the subject of an anonymous allegation, you would feel entirely differently)

 

 

As the father, understandably, was disputing that he had behaved in a sexually inappropriate way, and the issue was going to the heart of whether he was a risky person to have contact with his children, or a safe person, the Court had to have a finding of fact hearing to determine the allegations.

 

Given that the referrer, who wished to remain anonymous, had become known to the mother, the issue then became twofold :-

 

  1. Should her identity be formally revealed and the detail of the referral be made known by disclosing the documents
  2. At the finding of fact hearing, should the referrer attend Court and be available to be cross-examined?

 

 

The Judge at first instance, who was Mr Justice Peter Jackson  analysed the issue in this way :-

 

  1. a. The father denied sexually abusing anybody. He had not been informed of X’s identity and knew nothing of the substance of her allegations. He asserted that the mother had colluded with X to generate these allegations for the purpose of obstructing contact with his daughter. He argued that for the court not to insist on testing the allegations would be fundamentally unjust and the situation would effectively encourage mothers to make outrageous allegations as a means of alienating fathers and children from each other. The interests of A must come first and there must be a trial attended by X.

b. The mother described herself being torn between the need to protect A and the reluctance to add to the pressure on X. She supported disclosure if it is the only means by which A can be protected, but is concerned about the consequences for X if disclosure takes place.

c. X strongly resisted disclosure of her identity and of the substance of her allegations. She would oppose any attempt to summons her as a witness and would not be able to speak about her allegations if she were brought to court. She was acutely distressed by the effect of the proceedings on her already fragile state of health.

d. A’s guardian asserted that she was unable to represent A’s interests in the proceedings without knowing the detail of the allegations and forming an assessment of them. She submitted that the issue of disclosure was a discrete issue and should be determined separately from any question of X being compelled to attend court to give evidence.

e. The local authority took a neutral stance, but assisted the court by presenting arguments for and against disclosure.

  1. In analysing the competing factors, the judge referred to the following articles of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (‘ECHR’) as being relevant:

ARTICLE 3

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

ARTICLE 6

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

ARTICLE 8

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

  1. Having considered the decision of this court in A Local Authority v A [2009] EWCA Civ 1057; [2010] 2 FLR 1757, the judge concluded that the fundamental objective of the balancing exercise is to strike a fair balance between the various rights and interests within the context of achieving a fair trial. In this context he held (at paragraph 29) the following ECHR articles were engaged so far as the court and the local authority as public bodies are concerned:
    • Article 6, entitling A and her parents to a fair hearing of X’s allegations;
    • Article 8, guaranteeing respect for the family life of A and her parents;
    • Article 8, guaranteeing respect for the private life of X; and
    • Article 3, prohibiting inhuman or degrading treatment of A and of X.
  1. Peter Jackson J concluded (paragraph 34) that X’s wish not to speak further about her alleged experience of sexual abuse and the risks to her mental and physical health were each aspects of her ‘private life’ within Article 8.
  1. Within the Article 3 considerations fell not only the protection of vulnerable individuals such as A and X, in particular from sexual abuse, but also the protection of X from inhuman treatment by forcing her to give evidence about these matters in the context of her precarious state of health.

 

The Judge at first instance decided that balancing those competing interests meant that it was right, in the circumstances of this particular case, not to compel X to give evidence, or to disclose the information  (he approached it in that order, which becomes relevant later)

 

48. I have nevertheless concluded that in this highly unusual situation it is not possible for information about X’s identity and allegations to be disclosed to the parties. My reasons are these:

1) I accept the medical evidence about the potentially serious effect of disclosure on X’s health.

2) The information once disclosed, cannot be controlled. X could not be assured that her identity as an alleged victim of sexual abuse would remain confidential within the proceedings.

3) X’s identity and her allegations are inextricably intertwined.

4) For the court to order disclosure when it is not prepared to order X to give evidence would risk harming X without achieving anything valuable for A and her parents. The nature and extent of X’s allegations mean that they could not readily be proved or disproved by reference to third parties or independent sources. It is therefore unlikely that any outcome achieved in X’s absence would clear the air between the parties or provide a solid foundation for future arrangements for A.

5) The court must have regard to the nature of the interests being balanced, namely contact on one hand and physical and mental health on the other.

 

49. I realise that the existence of this unresolved allegation creates real difficulties in relation to future contact between A and her father. Once the parties have considered this judgment, there will be a short hearing to identify the issues that now arise. For the present, I will only repeat the observation that I made during the Guardian’s submissions, namely that this outcome will not automatically lead to the court making an order for unsupervised contact. That question must be resolved taking account of all factors bearing on A’s welfare

The father’s case, again understandably was, that without having the opportunity to properly test the very grave allegations that had been made against him  (and not even knowing who it was he was alleged to have abused)  would make it impossible to conduct a finding of fact hearing, and even if the allegations were effectively set to one side with a decision that they couldn’t be proved, they would hang over him and inevitably colour any later decision about his contact.  

 

(The Judge seemed to be saying that X’s allegations wouldn’t be the subject of a finding of fact hearing, but that on its own did not mean that father’s contact would automatically revert to pre-allegation position. And a strand that emerged was that without the allegations being determined one way or another, was it reasonable for mother – who believed them – to be opposed to direct contact?)

 

The Court of Appeal considered the issue of the trial judge having seen the source material which was not disclosed to the parties , with the long and the short of it being that a Judge who saw such pertinent evidence and decided it was not to be disclosed was really in a position where he had to recuse himself from determining the matter, no matter how hard he would strive to put it out of his mind, ‘justice must not only be done, it must be seen to be done’ :-

 

 

  1. Having now had the benefit of looking at these potentially ambiguous passages with the assistance of counsel’s submissions, I am fully satisfied that the judge has no intention of relying directly upon the undisclosed material to support some form of finding on the issue of sexual abuse. His latter comment about the outcome not automatically leading to unsupervised contact would seem simply to be a sensible and proper judicial indication that all substantive welfare options remain open and that all he has dealt with thus far is the application for disclosure.
  1. Despite accepting that the judge’s indication is, within its own context, unremarkable, there is a need to step back to consider how a fair final hearing can be seen to take place if it is conducted by a judge who has read the detail of X’s undisclosed allegations. This is not a topic that is addressed expressly in the judgment, yet to my mind it justifies careful consideration. From the perspective of an insider within the family justice system, I have no difficulty in accepting that any judge of the High Court Family Division would have the necessary intellectual and professional rigour to conduct the final hearing by putting the undisclosed material out of his or her contemplation when considering A’s welfare. That, however, is not the test, or, at least, not the complete test. Justice not only has to be done, but it must be manifestly and undoubtedly seen to be done. How is the final hearing to be viewed by the father if his contact to A is reduced from its pre-2010 level or terminated, when he knows that the judge who has determined the case has read details of serious, but untried and untested allegations against him? The father has already referred to ‘a kangaroo court’ and such a characterisation could only gain prominence in his mind were the case to proceed in the manner contemplated by the current orders.
  1. Often when Public Interest Immunity (‘PII’) is raised the matter to which the PII relates may not be directly relevant to the primary issue in the case and there can be a fair trial of the central issue notwithstanding the fact that material known to the judge remains undisclosed to some or all of the parties. Here the undisclosed information is at the core of the case and represents the entirety of the material relating to the only issue that has generated the mother’s application to vary the contact regime. The father, or an impartial bystander, is entitled to question how there could be a fair trial of the contact issue when the judge is privy to this core material yet the father and those representing A are not. I stress again that I readily accept that if Peter Jackson J were the trial judge he would have approached the matters before him with intellectual and judicial rigour; my concern relates to how matters are, or may be, perceived by the parties and others.
  1. Drawing these observations together, in my view an outcome on the facts of this case whereby the key material has been read in full by the judge but is not to be disclosed to the parties, yet the same judge is going on to preside over the welfare determination is an untenable one in terms of justice being seen to be done. In failing both to consider this aspect of the case and in arriving at that outcome the judge was plainly wrong

 

 

There is, as always with Lord Justice MacFarlane’s judgments, a helpful drawing together of the history of decisions on both Public Interest Immunity and balancing of competing Human Rights, and it would be a good starting point for any research on these issues.

 

 

The Court of Appeal then determined whether the Court at first instance had gone awry in balancing those matters, and specifically whether in determining that X was not going to give evidence and thus disclosure was of no purpose, that decision had been made the wrong way around (i.e that disclosure was a separate issue to X giving live evidence)

 

  1. Moving from legal principle to the circumstances of this case, whilst the judge’s characterisation of the probative value of X’s allegations as being unlikely to lead to a resolution of the issue that they raise may be correct on our present state of knowledge, that state of knowledge is based entirely on what X is reported to have said. Because of X’s stipulation that no person is to be told of her allegations, the local authority has not undertaken any investigation of them whatsoever. In so far as X may give a factual context which places X and the father together and within which the alleged abusive behaviour took place, it has not been possible to ask any of the adults who were then responsible for X’s care whether or not that factual context has validity. A’s mother knows only of the label attached to the alleged behaviour, she too may readily be able to validate or challenge what is said about the factual context and the father’s opportunity to interact abusively with X as X alleges. Plainly the father too will be able to give his own account of matters if disclosure takes place. I do not therefore accept Peter Jackson J’s assertion that ‘the nature and extent of X’s allegations mean that they could not readily be proved or disproved by reference to third parties or independent sources’; the position is that, unless or until the relevant adults are told of the allegations, it is simply too early to come to a conclusion on that issue. There is merit in the disclosure of this core material, so that it may properly be evaluated by A’s mother, A’s father and A’s professional representatives, that merit is freestanding and has value irrespective of whether or not in due course X could be called to give oral evidence.
  1. For the reasons I have given, I conclude that the judge was in error in conflating the issues of disclosure and X being required to give oral evidence in due course. In turning to the latter issue first, and concluding that compelling X to give evidence would be oppressive and wrong, the judge unfortunately allowed that conclusion to dominate his consideration of the disclosure question in a manner which is unsupported by authority. The judge was further in error in failing to identify the freestanding value of disclosure which would enable the key adults to understand and give their own factual account of the circumstances within which X alleges that the abusive behaviour took place

And then moved on to make the decision about disclosure :-

 

  1. In answer to the questions posed within structure established by Lord Mustill in Re D:

a) there is a real possibility that disclosure will cause significant harm to X’s mental and physical health;

b) the interests of X would benefit from non-disclosure, but the interests of A favour disclosure. It is in A’s interests that the material is known to her parents and is properly tested. There is a balance to be struck between the adverse impact on X’s interest and the benefit to be gained by A;

c) If that balance favoured non-disclosure, I would in any event evaluate the importance of the undisclosed material as being central to the whole issue of contact and the life-long structure of the relationships within A’s family. In fact, X’s allegations represent the entirety of the ‘issue’ in the family proceedings. There is therefore a high priority to be put upon both parents having the opportunity to see and respond to this material.

  1. For the reasons that I have given, and approaching the matter in way that I have described, I am clear that the balance of rights comes down in favour of the disclosure of X’s identity and of the records of the substance of her sexual abuse allegations to the mother, the father and A’s children’s guardian.

 

 

The Court of Appeal did make it plain during the judgment, that they were considering this on the basis of the individual case and the individual judgment, rather than attempting to pull out some general principles for all cases, and say so explicitly here:-

 

40         I repeat and stress that this conclusion is specific to the facts of this case where the PII material relates entirely to the core issue in the case. It is not my intention to lay down a blanket approach to all cases, which will fall to be determined by the application of general principles to the individual facts that are in play.

 

And of course, the key issue in this case is that the referrer X, was not someone who was saying  “I have seen father do such and such to a child” or “I believe father has done such and such to a child”  but that “when I was a child, this man did such and such to me”     (i.e that the referrer was not claiming to have witnessed abuse, but to have been a victim of it)

 

But the principle remains – in the light of this authority, and the ones cited within the judgment  (notably Re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593)  )   http://www.bailii.org/uk/cases/UKHL/1995/17.html  

 

Can someone who makes a referral or allegation to a Local Authority, who wishes to remain anonymous, have confidence that they would remain so?

 

The reality is, that if the referral or allegation is relied upon – i.e that a party to the case seeks to convert that allegation into proven fact (as opposed to ‘it is true that an anonymous referrer said this, but the Court is not asked to determine that what was alleged is true’)   then it is hard to see a Court being persuaded that the parents article 6 rights to see the allegation and challenge it are outweighed by the interests of confidentiality to the anonymous referrer.

 

The deck was stacked pretty heavily in favour of the referrer here  –  she had been a ‘child victim’, there was psychological evidence about the consequences of disclosure being very detrimental to her, and still the material was disclosed.

 

There’s the possibility, perhaps long-distant, of a referrer who was told by the Local Authority when they rang up and asked if they could remain anonymous that they could, bringing a claim against the LA when their details were disclosed. 

 

It might well be the case that the only true way to make an anonymous referral is the obvious one – don’t give your name to anyone.  If you tell the person on the other end of the phone your real name, they might well have to cough it up at some point in the future.

 

[If it hasn’t been clear in the discussion above, I am very sympathetic to both sides of the debate – I think it is important that people are able to genuinely alert the right authorities to suspected child abuse without having to have fear of reprisals, but I can also see that where there is suspicion and doubt that such referrals are genuine and might instead be false malicious allegations, there’s a serious interest in the victim of such allegations being able to properly contest them.  

 

It is one of those difficult areas where the overarching public interest in cases generally might well be anonymity, but in any particular case the right thing is more likely to be transparency]

 

 

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Liberace, losing and Lou Gehrig

Posted on September 20, 2012 by suesspiciousminds

Some thoughts arising from the Evidence in Child Abuse Cases  #ECAC course I attended today.

 

Firstly, it was an excellent course, and had a lot of fresh and useful material.  It was a genuine pleasure to hear Jo Delahunty QC  (who is like the most charming intelligent surgical scalpel you will ever meet) speak on the Al Alas Wray case  (which I’ve blogged about before – here : –   https://suesspiciousminds.com/2012/04/24/subdural-haematomas-fractures-and-rickets/                as she was leading counsel for one of the parents, and so had a wealth of useful insights and tactics to put forward.

 

Secondly, there was a paediatric neuroradiologist sitting in front of me who is DEFINITELY going to get instructed next time I need one. Likewise the paediatric neurosurgeon. And no, I’m not sharing names, because I want them to be available when I call them.

 

One slightly awkward moment when an entirely different barrister responded, during the Panel session, to a barbed question from a doctor about whether Court is the best place to resolve complex medical issues with the R-bomb  (With the greatest possible respect).  Kudos to the questioner, for not responding, as I might have with “you know what, I’ll see your ‘crusader for justice’ and raise you ‘I save children’s lives for a living’ , so keep your Respect to yourself”  and instead just said “with all due respect”  which was even better)

 

Anyway, Liberace.  You may not know, if you are younger, who Liberace is. So he was a flamboyant singer, who looked like this :-

 

 

In 1956, the Daily Mirror printed a story saying that he was gay.  It was the Fifties, perhaps people needed to be told the bleeding obvious back then, and perhaps for some reason it was any of a newspaper’s business what a celebrities sex life was like  (thank goodness times have changed)

 

Liberace sued them for libel. (he couldn’t, presumably, sue them for being homophobic jerks, because this was the Fifties).

 

He won his case,won about £15,000  (which in those days was at least several houses) and coined his expression “I cried all the way to the bank”.

Now, as you probably know, truth is a defence to libel. So, someone, representing the Mirror, went to Court, and tried to persuade the Court that it was true that Liberace was gay. And failed.

 

Feel free to look back at the photograph, which would have been my exhibit one.

 

I suspect whoever had that brief for the Mirror put on a tie with a smile on his face, and walked to Court with a spring in his step that day. They didn’t know much about basketball in those days, so the phrase “slam dunk” was meaningless to them, but if there was ever a slam dunk, that was it.

 

So I occasionally like to ponder the mixed feelings of the two counsel on that case – one with a mountain to climb who did so, and one with what looked like a molehill to step over, who fell over it.

 

The Al Alas Wray case is of course, not in that same league. For one thing (and I am sorry if this crushes any illusions) , Liberace really was gay, so shouldn’t have won; and the odds weren’t quite so slanted, but still, one is expected to think as counsel seeking the findings with the great and the good of Britain’s medicine lined up behind you, that you will see off these fancy American experts with their crazy theories, but it was not to be.

 

But the reason it was not to be, and this really came home today, listening to Jo Delahunty QC, is that people involved put in huge amounts of work. Medical reports weren’t just obtained and copied, or read through, they were digested and tough questions formulated arising out of them. The truth came out, but it wasn’t like finding a doorkey under a doormat – just a quick bit of lifting and there it is – this was truth obtained by painstaking forensic analysis.

 

And what was clear to everyone in the course was that Al Alas Wray might well represent the high watermark of when English family justice meant just that, that a person wrongly accused has the weight and resources of the law behind them and has the chance at a fair trial.  A similar case in two years time, is not going to get the experts that are needed, the time that each expert needs to read the source material, the ability to call and test that evidence  (it seems pretty clear that cross-examining experts will be a rarity even when you do get to instruct one) and certainly isn’t going to have the period of time it takes to do a case like that properly.

 

There was some interesting discussion about head injuries, and the medical research on lucidity.  A key piece of research, which offsets the previous position of Chadwick 1997 that “If a history purports a lucid interval that history is likely false and the injury is likely inflicted”   was Denton and Mileusnic 2003 where the child suffered a witnessed fall backwards 3 feet onto vinyl floor, was fine and tragically died 3 days later.

 

It’s a telling example of how even though any particular case might have to make medical history for the explanation given to be correct, medical history can be made by a single case.   (And the one of those that leapt to my mind was Lou Gehrig, the baseball player, who died of Lou Gehrig’s disease. Plus, it started with an L, so it fitted.  And was referenced by Bill-Hicks-rip-off-merchant Dennis Leary  with the tasteless aside  “How’d he not see that coming?”.    )

 

Frankly, Phineas Gage is a better example particularly as we’re talking head injuries, and his story is fascinating if you haven’t already read it.  He was a railway worker, who suffered a serious head injury, destroying his left frontal lobe  which changed his entire personality, and is pretty much the beginnings of neuroscience, and moved us from reading bumps on people’s heads to finding out which bits of the brain do what.

http://en.wikipedia.org/wiki/Phineas_Gage

 

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You never know when it might just… Buckaroo!

Posted on August 20, 2012 by suesspiciousminds

 

A discussion of whether too much weight is being put on the back of North Yorkshire County Council v B 2007, and whether there is such a thing as a ‘ruling out’ hearing at interlocutory stage

 

 

 

This is a scenario that’s not that uncommon in care proceedings – all of the evidence on the parents has been collected and the professionals have taken a view on it, that view not necessarily being shared by the parents. But the case isn’t ready for final hearing and is being adjourned for 3-4 months, usually in order to test a placement with a relative.

 

[Incidentally, could we all stop using the phrase ‘a relative has come out the woodwork’ in such situations? It’s icky, and perjorative. And is a pet hate of mine. They are grandparents, or aunts, or friends, not woodlice]

 

Can the Court in those circumstances have a hearing which disposes of the parents case at interlocutory stage?

 

There’s a school of thought that you can, arising from the High Court decision in North Yorkshire County Council v B 2007   [2008 1 FLR 1645]

That case certainly provides some authority for the suggestion that the Court can deal with the parents case before the case is ready for final hearing. And let’s be fair, the cases I do are all in Courts which are bound by High Court authorities.

 

But, to borrow medical sceptic Ben Goldacre’s phrase  “I think you’ll find it’s a little bit more complicated than that”

 

What follows, like everything on my blog is my personal opinion, and not representative of anything more. But perhaps even more so than usual, because I’m never going to be in a position where my personal opinion on say Re X  (it’s a very high threshold to cross to get an EPO these days) is in conflict with the law, since that’s exactly what Re X says.

 

But my interpretation of how far you can push North Yorkshire is not decided law, and thus I might one day have to present a case where my personal views on it are set aside. Hence the lawerly caveats. Sorry.

Let’s look at the facts of North Yorkshire. 

The case was listed for an eleven day final hearing, and just before the hearing, it became apparent that the final assessment on the family carers who had slithered under the doorframe  [see how icky it is when you take the usual metaphor and slightly reword it? Stop saying ‘come out of the woodwork]  would not be ready.

 

The Judge was faced with the prospect of abandoning a hearing where eleven days had been set aside, witnesses warned etc and finding all of that time again in the future, or trying to see if something useful could be done with that hearing time. The Local Authority suggested that the Court could use the eleven days to hear mother’s case (that the children should be returned) and then have a shorter disposal hearing on appropriate order and contact at a later stage.

 

North Yorkshire sets out the Honourable Mrs Justice Black’s(as she then was) decision on the preliminary issue of whether a Court could actually conduct a hearing determining a parents case before the final hearing.

 

We do not know, as the full case was not reported, what the decision at the end of the eleven days was, but the preliminary issue was decided, and Black J concluded that it was open to the Court to conduct such a hearing.

 

 

Now, here are some important things from that judgment :-

 

  1. Mother was making a positive case (not just disputing the LA case)
  2. Mother was asserting that she was making progress and could evidence that. She was on a methadone reduction programme. She accepted she was not in an immediate position to have the child returned, but felt that was achievable in the foreseeable future
  3. The family members, who were being put forward, were not certain to have a positive full assessment – the prospects were there, but the initial viability had been negative and the placement revisited because the father received a custodial sentence removing his risk from the scene.
  4. The judgment is only permissive  – it says that the Court, could embark upon a hearing to determine the merits of mother’s case. It does not say that a Court HAS to do this in similar circumstances, nor does it set out any criteria for when it would be appropriate to do so, or when it would be wrong.

 

 

But this is the paragraph that causes me disquiet if this authority is being used as authority for a principle that parents can be ‘Ruled Out’ at interlocutory stage.

 

17. It cannot be argued, in my judgment, that decisions in care proceedings only crystallise when the Court is about to make a final order. I am not saying that decisions are not open to a later attempt to persuade the subsequent judge to change earlier conclusions and findings in the right circumstances. In the right circumstances they can be open to later challenge, and res judicata or issue estoppel, in its traditional form has a limited place in family proceedings.

 

 

It is the underlined passage that causes me to believe, on a personal level, that using North Yorkshire as authority for a principle that the Court can finally dispose of a parents case at interlocutory stage simply puts more weight on its back than the case can bear.  Buckaroo!   (also Yeeee-haaa)

 

If one thinks for a moment about what one would mean by “Ruling Out”, it must surely include this :-

 

  1. That the children, if they are old enough to understand, can be told that the Court has decided that they will not go home to mummy or daddy.

 

  1. And inevitably, if they are to be told that, that mummy and daddy can’t come back to the final hearing in 3 months time and argue for the return of the children.

 

  1. And to an extent, that they are PREVENTED from doing so, as a result of the earlier decision and judgment of the Court.

 

 

[and by extension, that if the parent issued a Residence Order application shortly before the final hearing  – for which, of course, they don’t need leave as a result of s10(4), the Court would dismiss this without hearing any submissions or evidence. And I suggest that as soon as you put it in those terms, you can see that there’s no possibility of a Court doing that, no matter what judgments have gone beforehand]

 

If you don’t have those 3 things, then you have not had a Ruling Out of the parents.  What you may have had, which is legitimate, is a judicial determination of the case against the parents and the counter case, at a particular snapshot in time and a judgment as to whether, all things being equal the parents are likely to be able to overcome any deficiencies found in that judgment within the children’s timescales. 

 

But saying that the parents can produce no evidence at the later final hearing to counter that judgment – if they make sweeping changes or accelerated progress the Court will not hear them on the issue, is not only NOT expressly sanctioned by North Yorkshire, the case says quite the reverse. [IMHO]

 

I am also troubled by the concept of Ruling Out, and how it fits with the House of Lords decision in Kent County Council v G 2006

 

Thus the court’s role is plain. It is not, as Jonathan Cohen QC put it in his eloquent submissions on behalf of Ellie and her parents, to decide whether or not a child is to live with her family. It is, as Charles Howard QC put it on behalf of the local authority, to decide whether or not to make a care order.   (paragraph 48)

 

If it is not the Court’s role to decide whether the child should return to parents, but rather, whether to grant the application made by the State  (and that must be right, because that’s where the burden of proof lies) then the Court cannot finally determine that application until final hearing/agreed final IRH.

 

 

Of course, where there is a dispute over threshold, or an interim care plan (the parent opposing the move, or level of contact) or dispute as to the expert evidence, or what the timescales for change would be, then there is some value in incorporating within that, the North Yorkshire position,  of the Court weighing up the merits of returning the child to the parent at that particular time and perhaps indicating what sort of changes would be required for the door to be opened for parents at the final hearing.   I think any and all of that is legitimate and permissable, so long as the Court is not tempted to take that additional step of ruling that the parents case is finally disposed of.

 

But a stand-alone Ruling Out hearing, is a concept that worries me. If one looks at an analogous situation of whether a separate finding of fact hearing is required,

 

RE A County Council v DP, RS, BS by the children’s guardian [2005] where MacFarlane LJ said:

“The authorities make it plain that, amongst other factors, the following are likely to be relevant and need to be borne in mind before deciding whether or not to conduct a particular fact finding exercise:

a) The interests of the child (which are relevant but not paramount)
b) The time that the investigation will take;
c) The likely cost to public funds;
d) The evidential result;
e) The necessity or otherwise of the investigation;
f) The relevance of the potential result of the investigation to the future care plans for the child;
g) The impact of any fact finding process upon the other parties;
h) The prospects of a fair trial on the issue;
i) The justice of the case.”

 

 

I am not sure that the merits of what can be achieved at what I would call a North Yorkshire hearing rather than the shorthand (which I suggest is misleading) of a Ruling Out hearing, can justify it as a stand-alone hearing where no other important issues are being resolved.

 

Rant over.

 

Now, your worships, I invite you to list this matter for a “ruling out” hearing, in line with the High Court authority of North Yorkshire…

Comments Off on You never know when it might just… Buckaroo!

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“When they begin, to intervene…”

Posted on August 7, 2012 by suesspiciousminds

Sorry, the titles just get worse.  (but I bet you’re humming it already)

 Two important cases on Interveners in fact-finding hearings, or  “Re T for two”

 

The first is the Supreme Court decision in Re T.

 

http://www.supremecourt.gov.uk/docs/UKSC_2010_0244_Judgment.pdf

 

 

This relates to an appeal from the Court of Appeal, which in turn considered an appeal from a County Court.  It related to the order at the conclusion of a finding of fact hearing (which took 5 ½ weeks) that one of the Interveners, who was not publicly funded and who was not found to have perpetrated the injury, should have his costs paid by the Local Authority, who had brought the care proceedings.

 

This was a very important case for both Local Authorities and those who represent Interveners, particularly those who would not financially qualify for legal aid.

 

The costs that the Intervener had to pay was £52,000 so one can see why the  Court of Appeal were looking around for someone to foot that bill, since the Intervener was found to be blameless.

 

The children had made allegations of a sexual nature against the father and six other men, all of whom intervened. Five received public funding, the sixth did not.

 

All of the interveners were exonerated at the finding of fact hearing.

 

4. It was and is common ground that the Council could not be criticised for advancing in the care proceedings the allegations made against the grandparents. The judge, His Honour Judge Dowse, summarised the basis of their application for costs as based “on the apparently inequitable fact that they have largely succeeded in defending the allegations made against them but must bear their own costs”.

The judge dismissed their application. He did so on the basis that it was not usual to order costs in a child case against a party unless that party’s conduct has been reprehensible or its stance unreasonable. In support of that proposition the judge cited authorities that included the judgments of Wilson J inSutton London Borough Council v Davis (No 2) [1994] 1 WLR 1317 and Wilson LJ in In re J (Costs of Fact-Finding Hearing) [2009] EWCA Civ 1350; [2010] 1 FLR 1893.

The judge expressed the view that it was unacceptable that more and more people in the position of the grandparents were faced with “potentially life-changing allegations” without being able to gain some financial assistance from the State.

 

 

I don’t disagree with that at all, and I think the judge at first instance got this entirely right. It is deeply unfortunate that someone faced with allegations as grave as this, particularly where they are disproved has to pay their own costs, but that misfortune can’t extend to making the Local Authority pay unless their conduct in bringing the case is reprehensible or unreasonable.  Otherwise one runs the risk of very serious cases not being put before the Court as a result of fear of costs orders being made if the allegations are not established.

 

[Frankly, I think non means, non merits legal aid ought to be available to any party who is able to satisfy the Court that they should be involved within the proceedings, whether as an Intervener or a party given leave to make an application; but that was obviously beyond the scope of the Courts]

 

This is interesting, from paragraph 6  (and these were some heavy-hitters in the world of counsel)

 

It is a remarkable fact, and ironic in an appeal about costs, that all counsel are appearing pro bono. We would like to express our gratitude for the assistance that they have given.

 

CAFCASS in the case submitted that the Court of Appeal decision was the first one where a Local Authority were ordered to pay costs where there was no criticism of its conduct of the litigation  (effectively adopting a civil – “loser pays” philosophy)  and that, of course, is why the case was important enough to make it to the Supreme Court.

 

Particularly, this passage at para 18 of Wilson LJ’s judgment in the Court of Appeal on this case  (the ‘general proposition’ being that costs orders shouldn’t be made in family proceedings in the absence of unreasonable conduct)

 

            “I consider that, where in care proceedings a local authority raise, however appropriately, very serious factual allegations against a parent or other party and at the end of a fact-finding hearing the judge concludes that they have not established them, the general proposition is not in play.”

 

 

The Supreme Court sum up the issues admirably here:-

 

39. The question of whether it is just to make an award of costs against a public authority must be distinguished from the question of whether a litigant’s costs should be publicly funded. The former question is for the court; the latter for the legislature. Whether a litigant’s costs should be publicly funded involves issues in relation to access to justice and the requirements of article 6 of the European Convention of Human Rights. Mr Hale invoked that article in support of his argument that where allegations made against an intervener are not made out, the local authority which advanced those allegations should be liable for the intervener’s costs. We consider that this argument was misconceived. The requirements to provide public funding in the interests of access to justice and of compliance with article 6 apply at the outset of legal proceedings, not when they are concluded, in the light of the result.

 

40. The Funding Code prepared by the Legal Services Commission pursuant to section 8 of the Access to Justice Act 1999 makes provision for public funding in proceedings under, inter alia, section 31 of the Children Act 1989. The effect of the code is that children, parents and those with parental responsibility are granted funding without reference to means, prospects of success or reasonableness, but such funding is not available to interveners who are joined in such proceedings: see volume 3C-427 of the Legal Services Commission Manual. There may be a case for saying that this results in injustice in the case of interveners in the position of the grandparents in the present case, but it does not follow that justice demands that any deficiency in the provision of legal aid funding should be made up out of the funds of the local authority responsible for the care proceedings.

 

 

And I would suggest that the Supreme Court here were expressing a deal of sympathy for the suggestion that the LSC ought to be stumping up for interveners, but are obviously bound by the funding code  [in the absence of a judicial review challenge to the construction of that funding code or its exercise in a particular case]

 

 

And they conclude the case here:-

 

41. If in principle a local authority should be liable for the costs of interveners against whom allegations have been reasonably made that are held unfounded, then this liability should arise whether or not the interveners are publicly funded.

In the present case, the five men who intervened and were exonerated should also have sought and been awarded costs. The burden of costs awarded against local authorities in such circumstances is likely to be considerable. When considering whether it is just to make an award of costs against a local authority in circumstances such as those of the present case it is legitimate to have regard to the competing demands on the limited funds of the local authority.

 

42. In the context of care proceedings it is not right to treat a local authority as in the same position as a civil litigant who raises an issue that is ultimately determined against him. The Children Act 1989 imposes duties on the local authority in respect of the care of children. If the local authority receives information that a child has been subjected to or is likely to be subjected to serious harm it has a duty to investigate the report and, where there are reasonable grounds for believing that it may be well founded, to instigate care proceedings. In this respect the role of a local authority has much in common with the role of a prosecuting authority in criminal proceedings. It is for the court, and not the local authority, to decide whether the allegations are well founded. It is a serious misfortune to be the subject of unjustified allegations in relation to misconduct to a child, but where it is reasonable that these should be investigated by a court, justice does not demand that the local authority responsible for placing the allegations before the court should ultimately be responsible for the legal costs of the person against whom the allegations are made.

 

43. Since the Children Act came into force, care proceedings have proceeded on the basis that costs will not be awarded against local authorities where no criticism can be made of the manner in which they have performed their duties under the Act. Wilson LJ in In re J at para 19 disclaimed any suggestion that it was appropriate “in the vast run of these cases to make an order for costs in whole or in part by reference to the court’s determination of issues of historical fact”. But, as I have indicated, there is no valid basis for restricting his approach in that case to findings in a split hearing. The principle that he applied would open the door to successful costs applications against local authorities in respect of many determinations of issues of historical fact. The effect on the resources of local authorities, and the uses to which those resources are put would be significant.

 

44. For these reasons we have concluded that the general practice of not awarding costs against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, is one that accords with the ends of justice and which should not be subject to an exception in the case of split hearings. Judge Dowse’s costs order was founded on this practice. It was sound in principle and should not have been reversed by the Court of Appeal.

 

 

I’m usually a believer in Kim Hubbard’s remark “Whenever someone says, ‘it’s not the money it’s the principle’ it is always the money”    but in this case, the Local Authority involved (Hull) have clearly taken this case up to the appropriate level of judicial decision-making as a matter of principle  (they’d already paid the grandparents their costs, and weren’t seeking to recover them), and I thank them for it.

 

 

Just when I thought I was out – they pulled me back in – Michael Corleone

 

 

The second case also involves a very heavyweight group of counsel, and a case involving an Intervener. 

 

Again, it is Re T  (how thoughtless)   but this time RE:  T (Children) [2011] EWCA Civ 1818

 

 

http://www.familylawweek.co.uk/site.aspx?i=ed99436

 

(That also contains a very good summary of the case, and is indupitably going to be better than my attempt)

 

Within care proceedings, allegations were made of physical abuse and sexual abuse against one of their uncles ‘DH’  who was 18 by the time the appeal was heard, and one must assume an adolescent/child at the time the allegations were said to have occurred.

 

There were a raft of other threshold concerns in the case, and it was accepted that findings of sexual abuse, though capable of being made, were going to be challenging as opposed to straightforward.

 

The Local Authority sought, amongst other matters, a finding against the father that he had sexually abused DH and that it was this sexual abuse that had led to DH in turn abusing the other children.

 

 

At the pre-hearing review, DH did the smartest thing I have ever seen an Intervener do within care proceedings, and that is to say in terms “this doesn’t seem to be a very good idea for me to be involved in this, and I’m out”   (I hope he said it in a Duncan Bannatyne accent, but given that he was being represented by the splendid Rachel Langdale QC – my third favourite Rachel/Rachael, I somewhat doubt it)

 

The Judge agreed that he should cease to be an Intervener, and instead give evidence as a witness.  The Local Authority, supported by the father, appealed that decision.

 

The Court of Appeal determined that the appropriate decision on whether any particular allegation proceed to a finding of fact hearing is as set out in

RE A County Council v DP, RS, BS by the children’s guardian [2005] where MacFarlane LJ said:

“The authorities make it plain that, amongst other factors, the following are likely to be relevant and need to be borne in mind before deciding whether or not to conduct a particular fact finding exercise:

a) The interests of the child (which are relevant but not paramount)
b) The time that the investigation will take;
c) The likely cost to public funds;
d) The evidential result;
e) The necessity or otherwise of the investigation;
f) The relevance of the potential result of the investigation to the future care plans for the child;
g) The impact of any fact finding process upon the other parties;
h) The prospects of a fair trial on the issue;
i) The justice of the case.”

 

 

And then went on to consider whether the allegations that the LA made that directly involved DH  (that he had abused the children, and that had arisen because he had himself been abused by father) were such that they needed to remain live issues in the case.  The resonant (though unpleasant to the squeamish) phrase “the allegations of sexual abuse have come dripping in during the course of the proceedings”  kept being used in the judgment.

 

The finding of fact hearing that was already listed was down for 20 days, and had five silks, six if Miss Langdale QC remained representing DH.

 

The father’s case was essentially that DH could not be relied upon as a witness and was of bad character – as a witness there would be limits in what could be put to him, whereas as an Intevenor, it would be possible to go further. There were, the father submitted, significant problems in the LA seeking a finding that the father had sexually abused DH without considering what was the root of that finding (the allegations that DH had abused the other children)

 

The Court of Appeal considered that it was a matter for the trial judge to determine what allegations it was appropriate to consider in a finding of fact hearing and which were peripheral, and therefore whether DH was required to be an Intervener, or whether he could be discharged as an Intervener and merely be a witness

 

24. The problem, therefore, is essentially one of case management.  Was the judge entitled to regard this as peripheral?  In my judgment, yes.  The main complaint is of emotional abuse.  The main complaint of sexual abuse lies at the door of M, not of P or DH.  The sexual allegations against them towards children of the family are not strong.  The sexual allegations relating to KE when he was nine or ten and she was five or six are buried in the dim depths of history. It is, it seems to me, quite unfair to charge a boy now 18, damaged as he may be by life’s experiences at his home and in care, with inappropriate sexual shenanigans between those young children.  And it may not be the best pointer towards his disposition or sexual tendencies as he grows up.  I think he has a girlfriend.  I know not.  The allegations against N are again the allegations made against a boy of 13.  And the extent, therefore, to which the local authority can rely upon findings of that kind to portray that this boy in his present condition is a danger to children is a matter upon which I for my part, though it will be a matter for the judge eventually, am rather sceptical.

25. So I agree this is a peripheral issue in the case and in the context of the case the judge is also entitled to think it is disproportionate to extend this already extended trial by raising three separate allegations or two other allegations, namely N and KE, as a complication to an already complicated case.

26. I said it was a matter of case management and it is.  As things stand at the moment, it would be for the judge to judge the credibility of this boy.  He may be able to say “I am not satisfied by him, therefore I cannot be satisfied that the complaint against the father is made out.”  That is the end of it.  He can, of course, come to a conclusion that, having heard DH, he is quite satisfied that DH has in fact abused KE and N and, although he said he is not intending to make findings, he may be driven not to make findings in the care proceedings as such, but to explain his judgment by expressing his conviction in that way.

27. In any event, he, the judge, will deal with this on the disposal.  He will have seen four weeks of this case.  He will know full well how much weight to place upon the various factors and how important it is in the life of these five children whether or not this boy has done what is alleged against him. 

 

 

Unfortunately, though the principles are interesting, it is quite case specific, and doesn’t really analyse whether an Intervener can actually bail out as a strict matter of choice, having seen the totality of the evidence and taking a view that he no longer wishes to participate. 

 

It is clear that someone cannot be compelled to intervene in proceedings or compelled to be a party, because we always ‘invite X to consider becoming an intervener’   but once they are in, are they in for the long-haul, or not?

 

I think that I would argue that since one cannot stop a father, say, in care proceedings from simply ceasing to give instructions or attend Court, and effectively playing no role  [save for the possibility of witness summonsing him to give evidence]  it cannot be right that someone is forced to continue as an Intervener against their will.  But it is of course an application for leave to withdraw, and with any application, it must be at least theoretically possible for a Judge to say ‘yes’ or ‘no’  since if not, it isn’t an application at all, but a rubber stamp.

 

In this case, if the Court of Appeal HAD considered that the allegations against DH did warrant a finding of fact hearing, they could have overturned the decision to give LEAVE for DH to withdraw as an Intervener, but the Court would have been fairly powerless had DH said “I am sacking my legal team, I will not file any statement and I will not attend the hearing or make any representations unless I am witness summonsed, whereupon I will attend only to give evidence”   – he would have been an intervener in name, but not in reality.

 

I had thought that I recalled a case that findings against a non-party could only ‘stick’ if they had been an intervener, but I can’t find it, and my memory of it is going back to the late nineties, so I am probably wrong.  [It did lead me down an interesting sideline of seeing just how many of the 1990s cases about inteveners were a judicial “I should coco, sunshine, on your bike” whereas we now have people intervening at the drop of a hat]

 

 [So the long and the short of it is – as an intervener, you won’t get your costs so you may as well ‘get your coat’]

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It was Professor Plum, in the kitchen with a candlestick – no, it was Professor Plum AND Miss Scarlett….

Posted on July 19, 2012 by suesspiciousminds

A discussion of  the Court of Appeal decision in Re L-B (Children) 2012 . Or ‘when is a judgment not a judgment?’

 

 

http://www.bailii.org/ew/cases/EWCA/Civ/2012/984.html 

 

 

If you’re going to read one case this year, you should probably be more ambitious in your reading, but in any event, if you want one that is not necessarily hugely important but a real shocker, this one would be a good start.

 

It seems a silly little thing, but actually raises some good (if quirky points) and cuts to the root of what judicial decisions are.

 

The facts are very simple (and I assure you that this is not one of my imaginary judgments, though I wish I’d thought of it)

 

A Judge heard a fact finding hearing about non-accidental injuries.  At the conclusion of the hearing, the Judge indicated that the full judgment would be provided in due course, but that she had determined that the injuries were non-accidental and had been caused by father.  That was in December 2012.  It is important to note that this finding was recorded within an order made at that time.

 

Counsel for father invited the Court to deal with, in the full judgment, the matters as to fact and law that had been set out in father’s written submissions.

 

The LA moved forward with plans to place the children in the care of maternal grandparents (there were other difficulties with the mother, outwith the physical injuries) .

 

 

 

The perfected judgment was handed down on 15th February, and it was with some surprise that the parties heard the following passage :-

 

The perfected judgment was not in fact distributed until the 15th February. In that judgment the judge stated that she had “reconsidered the matter carefully” and had reached the view that “to identify a perpetrator would be to strain beyond the constraints of the evidence which I have both read and heard”.

 

In Lord Justice Thorpe’s beautifully understated prose,  “this was indeed a bombshell”

 

 

 

 

The judgment recorded the following:-

 

  1. 22.   However the decision I reached had to be reached on the balance of probabilities and when I considered the matter carefully I could not exclude the mother because I was not sufficiently satisfied that no time had arisen when she had not been alone with the child and might not have caused some injury.

23. I would be reluctant to expand further than that. I hope that will, in fact, constitute the clarification which you seek and I am reluctant to take time now to produce something further in writing, given that I have already given you my decision twice, the second time changing direction, but, as I say, I do not view it as incompatible with what I said the first time; it is simply a reconsideration of the point I reached on the balance of probabilities led to my second expressed view.”

 

 

The issue before the Court of Appeal was twofold, in essence.  Was the Judge bound by her earlier decision that father was the perpetrator of the injuries or entitled to change her mind and make a Lancashire finding? (i.e her function in determing the fact finding ended when she gave a short judgment in December and made an order recording that father had been determined by the Court to be the perpetrator of the injuries)

 

  And if the Judge were not bound by her earlier decision, does the change of mind in any event render the judgment unsustainable?

 

 

Matters become worse – when trying to establish when the order in December was perfected and sealed, the following came to light:-

 

  1. The court seal on the order of 15th December is only partially legible and bears no date. When we asked for the date on which the court sealed the order no-one in court could answer the question. We accordingly proceeded on the common assumption that the order had been sealed prior to 15th February 2012. However, we required investigation over the lunch adjournment.
  1. At 2pm a further extraordinary story emerged. Manchester Civil Justice Centre does not keep a record of the date that orders are sealed. The order of 15th December was drafted by the Local Authority’s representative and circulated to other parties for approval. On the 6th January it was emailed to the judge for her approval. That email received no response.

 

31.The hearings on the 23rd January, 20th February and 23rd February all provided the obvious opportunity for the Local Authority, and other parties, to ask the judge either to approve or amend the draft submitted for her approval. However, it was not until the 24th February that the Local Authority noticed what was lacking and re-submitted the draft to the court. Seemingly the draft received the court’s stamp on that same day.

 

 

 

 

 

The Court of Appeal grasped the significance of this.

 

  1. This revelation altered the legal path. Had the judge a license to revise or reconsider on 15th February since the previously announced conclusion had never been made the subject of a perfected order: see for instance the judgment of Arden LJ in Re T (contact: alienation: permission to appeal) [2003] 1FLR 531 at paragraph 50 where he said:-

“It is well established that it is open to a judge to amend his judgment, if he thinks fit, at any time up to the drawing of the order”

 

 

So, had the order made in Court in December naming father as sole perpetrator been sealed before the Judge had changed her view on the case and amended her judgment, that would have been outside the safety net of Re T, because the order would have been drawn.

 

 But in this case due to a catalogue of errors, the order was not sealed before the Judge changed her mind, and thus had the latitude to do so.

 

(A salutary lesson to us all, to record on the Court order on the fact finding hearing what findings were made AND to ensure that the Court seals them as soon as possible – though this issue is developed later, I still think it is good ‘belt and braces’ to do this)

 

The Local Authority, argued that in care proceedings, it is the final order as to Care Orders, Supervision Orders or no order that is  “the order” and that therefore the Judge can amend any judgment made at interlocutory stage providing that the “final order in the case has not been drawn up”

 

(That was an interesting argument in this case, but one which could wreak havoc in care proceedings generally if the judgment given in any fact finding was still ‘up for grabs’ at any stage thereafter until final disposal of the case, and I’m slightly surprised that the Local Authority wanted to set that particular hare running, given that the Re T point was already made about the legality of the Judge being able to change her judgment at any point before the order was drawn up (i.e sealed)  )

 

 

Thankfully for me, Lord Justice Thorpe determined:-

 

  1. It is important that we should not diminish the general importance of finality that judgment brings to human disputes. Judges appreciate that their findings as to disputed past fact and as to credibility are enduring and they are very conscious of the consequential burden and responsibility. The responsibility is magnified by the knowledge that once they have pronounced there is no opportunity for reconsideration or review.
  1. This principle is of particular importance in child protection litigation. This case well illustrates the havoc, the damage to the child and the family and the difficulties for the social work team caused by the judge’s departure from principal.
  1. Reverting to the question identified in paragraph 37 above, I do not draw from paragraph 21 of Munby J’s judgment, the conclusion that in the case of split hearings the principle articulated by Arden LJ and Rix LJ in Re T licenses a judge generally to amend his judgment as to past fact at any time before he has pronounced his judgment as to the future.
  1. In my opinion the purpose and objective of each of the preliminary hearings as to past events, and the welfare hearing to settle the future, are fundamentally different. The purpose and objective of the first trial would be jeopardised or lost if the judge at the second were free to re-write the history of past events

 

 

 

On the central issue of whether the Judge was entitled to change her judgment, Lord Justice Thorpe decided the following :-

 

  1. Furthermore, these skeletons reveal a tension between two lines of authority: the first establishing the principle that a judge is free to change the judgment until the resulting order is sealed (see Stewart v Engel [2000] 3 All ER 518), the second, that when an oral judgment is given, the winner is entitled to rely on its validity, only to be upset in most exceptional circumstances (in Re Barrell Enterprises [1973] 1WLR 19).
  1. I do not believe it necessary to consider these and other relevant authorities cited further, given the extraordinary facts of this case. I need only emphasise the clarity of conclusion announced on 15th December, the general assumption that the resulting order had been perfected in mid January, the general implementation of the judge’s conclusion, her adherence to that conclusion at the hearing on the 23rd January, the absence of any change of circumstance and the general slackness that left the December order unsealed until 28th February.
  1. Despite all the difficulties that were laid out in the supplemental skeletons I unhesitatingly conclude that the judge was bound to adhere to the conclusion of her December judgment and that her obligation to particularise it further did not permit her to enter a fresh and contrary conclusion. The result was not, as is submitted, merely to add back the mother: it was seemingly to elevate the father from low to first consideration as the primary carer, albeit the rationality of that elevation is not clear to me, given that he remained a suspected perpetrator. The effect of the judge’s shift is to remove the simplicity of a sole parent perpetrator. However the mother was not a placement option. That remains between father and maternal grandparents. Whether the father is viewed as a possible or a proven perpetrator there is still a risk to be assessed.

 

And effectively rejected the Re T argument that the Judge could change her judgment up until the order is perfected, saying in essence:-

 

If a judgment seems to be incomplete or deficient, counsel has the obligation to invite the judge to expand or supplement rather than to rely on the deficiency as grounds for an application for permission to appeal. But that practice allows the judge only to expand findings or reasons in further support of his stated conclusions. It certainly does not permit a judge to reverse a previously stated conclusion.

 

And thus that Re T effectively allows a Judge to refine, polish and improve a judgment, to perfect it and to take on board issues raised by the parties, but NOT to reverse it.  

 

 

 (That leads to an interesting tension with some recent Court of Appeal authorities suggesting that with a deficient finding of fact judgment, counsel should furnish the Judge with a list of areas that need to be addressed and a judgment perfected, because it implies that whilst the Judge can bolster the judgment against appeal, he or she can’t actually be swayed by those identified deficiencies to the point of changing their decision)

 

 

The second Judge, Lord Justice Rimer, took a contrary view, that having come to a fundamentally different conclusion, the Judge HAD to amend her judgment and be allowed to do so, otherwise how could she sensibly follow her judicial oath? Having determined that father was NOT the sole perpetrator, but a Lancashire one, and the case potentially progressing in a way that would conclude with him seeking to care for the child, it must be wrong for the Judge to HAVE to proceed on the basis of findings she had no confidence in.

 

One set all.   Sir Stephen Sedley to serve for the championship.

 

Sir Stephen Sedley is obviously not a great believer in preserving tension, because he makes it plain in his opening paragraphs where his judgment is going :-

 

  1.  The history of these proceedings has been fully set out in the other two judgments. I can therefore go directly to the issue: did Judge Penna have power to substitute her second judgment for her first?
  1. In my judgment she did not. I reach this view on both procedural and substantive grounds.

 

74. It seems to me to be of little or no consequence that the order recording the first judgment had not yet been sealed in the court office at the date of the second judgment; or that a final order in the case still remains to be made and sealed. Justice cannot depend on the functioning of an overworked and underfunded court office. Although the sealing of an order gives visible finality to a court’s decision, it is the delivery of judgment which constitutes the decision. The drawing up of the consequent order is not unimportant (and before the days of mechanical recording and word processing was often critical), but it is not what gives finality to a judgment. Nor can “deeming” a perfected judgment to have been handed down on the day of its distribution (as was purportedly done here) somehow postpone its finality.

 

 

And then gives this lovely quote, which I fully intend to steal and use at the earliest opportunity.

 

“Finality is a good thing,” said Lord Atkin in Ras Behari Lal v King-Emperor (1933) 60 IA 354, 361, “but justice is a better.”

 

 

 

 

 

And this is the paragraph which seems to settle things :-

 

Between 15 December 2011 and 15 February 2012, when she reversed her own decision, nothing had changed except the judge’s mind. I do not mean this dismissively. There can be few judges who have not worried about their more difficult decisions and sometimes have come to think that there was a better and different answer. But this by itself is not an objective reason why their original judgment should not have been right. Hence the need for some exceptional circumstance – something more than a change in the judge’s mind – to justify reversal of a judgment

 

 

 

It is always harder teasing out the principles from an Appeal case when the second and third judgments are not  “I agree” and particularly where one is a dissenting judgment, but I think the following :-

 

 

  1. In a fact finding hearing, a judgment is made when the Judge indicates the decision and NOT when the order is sealed.  And certainly it doesn’t hang over until the final order is being made.

 

  1. The detail of a judgment may be perfected and refined and a Judge is entitled to take supplementary requests for additions and clarifications into account.

 

  1. That refining process (post announcement of decision and pre perfected judgment being produced) can not produce a reversal of the DECISION or fundamental change of direction unless there are exceptional circumstances  (and those have to be more than the Judge’s mind having been changed)

 

 

Where the story goes next is harder to tell. The Court dealing with the welfare hearing have to proceed on the basis that father is identified as the sole perpetrator, even though the Judge who made that finding no longer believes it to be the case.  If it is the same Judge, how can her decision at analysis of ‘risk of harm’ and ‘ability of the parents’  limbs of the welfare checklist truly proceed on the basis of the father having caused the injuries, rather than merely paying lip-service to that being the position in law?

 

If that were to be the tipping point that prevented father caring for the child  (i.e all things being equal, if there was a Lancashire finding, the child would be in his care but not as a sole perpetrator) how can justice really be done?

 

I think that this decision is right in law, and from a moral standpoint, it is right for mother  (it can’t be right that a Judge hearing the case in December takes her out of the equation and then puts her back in two months later)  but wrong for father  (because the Judge no longer has confidence in the finding she made naming him as sole perpetrator)

 

 

See everyone, law CAN be interesting.

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A County Council v M and F 2011

Posted on May 4, 2012 by suesspiciousminds

Although judgment was given in this case in 2011, following a finding of fact hearing in the summer of that year, the judgment has only recently been published. I would preface all of this by saying that the case, and this blog will deal with injuries to a young child which resulted in the child’s death, and it is quite likely that some readers might find this blog entry distressing and upsetting.  I don’t want anyone to read this without having that in mind.

I am likely to want to return to this and blog on it in more detail, as the judgment is significant, and very detailed. Mr Justice Mostyn conducted the finding of fact hearing, and the structure and methodology with which the Judge deals with the judgment is exceptional.  It would be worth reading in its entireity

http://www.bailii.org/ew/cases/EWHC/Fam/2011/1804.html

Much like the recent case involving subdural haematomas, which I have already blogged about, this case involved the Court being asked to make a binary choice about whether a child in question was killed by his parents, or whether there was an accidental/organic explanation. It is the most serious type of finding of fact hearing which can ever occur.  The parents have either suffered the tragic loss of a child through organic reasons, or perhaps by an action which they could not have suspected would lead to harm and are safe around other children, or they have killed a child and concealed this and lied about it throughout a family court finding of fact exercise. There is either no risk at all, or a very high risk.

As indicated earlier, I think any reader who has an interest in finding of fact cases should read the entire judgment, as the entire thought processes, the analysis of the medical and other evidence and the law as it relates to each discrete point is mapped out with extreme care and skill by the Judge (notwithstanding that my gut reaction is one of some disquiet)

The child in question suffered injuries and died during attempts to resuscitate him. The parents explanation was that the father, a cyclist, had a small trailer or bike buggy which went behind his bicycle, which the child would sit in, and that whilst riding the bicycle at speed,the child may have suffered injuries as a result of going over bumps in the road, bouncing over tree roots and stones. There obviously questions about whether any of the injuries to the child could have been sustained during the resuscitative process.   (There is substantially more to the parental defence than this, and obviously if I could reduce the complexity of the case down to a page, it would not have taken 20 days of High Court time, nor required 13 bundles of evidence, so I apologise for the fact that this summary is by its nature not thorough)

Here are the injuries identified on the child :-

RECENT INJURIES

Of the Head Neck

1. On the right side of the occiput, there was a scabbed abrasion 1 mm in diameter.

2. On the right forehead, 45mm above the outer angle of the right eyebrow, there was a purple bruise 4mm in diameter.

3. A similar bruise was present approximately 45mm above the outer canthus of the left eyebrow.

4. There were two purple bruises on the outer aspect of the inferior margin of the left orbit measuring 5mm and 4mm.

5. There was scabbing of the posterior margin of the right nostril.

6. There was a recent tear of the frenulum of the upper lip which was associated with a little erythema but no significant haemorrhage.

7. There was a red mark 2mm in diameter posteriorily in the midline of the hard palate.

8. Within the upper helix of the right ear, there was a purple nodule 7mm in diameter which on sectioning showed a little haemorrhage.

9. There was a fluctuant swelling 25 x 20 x 7mm with overlying purple discoloration of the skin within the left upper pinna. Sectioning revealed an organising cystic haematoma containing some liquid blood.

10. There was a well circumscribed area of superficial haemorrhage in the middle lower left lip measuring 3 x 2mm in the midline.

Of the Right Upper Limb

11. There were two purple bruises on the ventral aspect of the lower right forearm just above the wrist measuring 3mm and 5 x 3mm.

12. There were scattered blue bruises up to 7mm over the dorsum of the right hand and over the back of the index, middle and ring fingers of the right hand

13. On the centre of the right palm and the palmar aspects of the index, middle and ring fingers, there were similar blue bruises up to 7mm in diameter.

14. There were scattered abrasions on the back of the index finger 3 x 2mm and overlying the proximal interphalangeal joint of the ring finger measuring up to 2mm.

15. There was a red/purple bruise over the metacarpophalangeal joint of the middle finger of the right hand measuring 10 x 5mm.

Of the Left Upper Limb

16. At the centre of the left palm, there were similar blue bruises up to 7mm in diameter with at the base of the index finger, there was a transverse apparently post-mortem skin split.

17. On the back of the left hand and on the back of the left index, middle and ring fingers, there were similar blue bruises up to 7mm.

18. Over the metacarpophalangeal joint of the middle finger, there were small scabbed abrasions.

19. Over the proximal interphalangeal joint of the ring finger, there was an abrasion up to 2mm in diameter.

20. An abrasion 2mm in diameter was present over the proximal phalanx of the index finger.

21. There was a red mark on the proximal phalanx of the index finger.

22. There were two purple/brown bruises on the medial aspect of the left forearm measuring 12 x 9mm and 13 x 9mm separated by 10mm. The bruises showed yellowing at the edges.

Of the Lower Limbs

23. Over the 5th metatarsal of the left foot on the dorsal aspect, there was a purple bruise 5mm in diameter.

There was a great deal of consideration about the medical evidence. It appears to me that the Judicial conclusion is that speaking from a purely medical perspective, the medics are in agreement that the injuries were non-accidental in nature.

[It is worth noting  Justice Mostyn’s comments about the Guardian’s stance – I believe that similar reservations have recently been expressed by Lord Justice McFarlane, though I am still waiting to read the transcript on that authority.  I could not agree more with what Justice Mostyn says here]

The argument on behalf of the guardian of D and S2

    1. Ms D QC and Ms R represent the litigation guardian of D and S2, Ms S. In her written final submissions Ms D QC wrote:

 

“In this hearing the Children’s Guardian takes a neutral and objective position. It is not her role to argue for or against any of the other parties.

Ms S has had the benefit of hearing most although not all of the evidence throughout the hearing. She has had the benefit of the transcripts of the experts and medical witnesses provided. She was represented throughout. She has had the benefit of reading the documentary evidence filed and she has met with and had discussions with the parties. She has met the children. If the Court makes any findings against M or F the Children’s Guardian will be in a good position to consider and formulate her recommendations to the Court for the welfare of the children.

To that end the Children’s Guardian has considered the oral evidence heard, the written evidence submitted and the expert opinion received in the context of the LA’s Schedule of Findings.”

  1. I was surprised to read that. Given that the outcome of this hearing could have a most far-reaching effect on her clients D and S2 I would have thought that I would be offered at least a steer as to what findings I should make. But no, I was firmly told that this is not the practice, and with my slender experience of this kind of work I am not in a position to argue. That said, approaching the matter with an open mind uncluttered by years of experience of this kind of work I would have thought that at the very least the role of the Guardian and those representing her should be akin to Counsel to a Statutory Inquiry, assisting the court in exploring complex scientific evidence and making suggestions to the court as to what findings should properly and tenably be made. The practice of sitting with an assessor has fallen into disuse (notwithstanding that the procedure for appointing an assessor has recently been reiterated in FPR 2010 r25.14), and thus the role of the representative of the Guardian in a case such as this cannot be overstated.

Having heard all of the evidence, the Judge sets out how he proposes to deal with the decision, and sets out this framework

Conclusions

    1. The business of judging in this case is peculiarly difficult.

 

    1. Yet, if I accept Mr S’s submission that there is little, if any, scope for me to gainsay the histological evidence, which must lead me inexorably to find that in the early hours of the morning these parents, acting together, meted out the most extreme sadistic violence to S which involved thrashing his little hands and punching him in the face with sufficient force to snap his fraenulum.

 

    1. The same point is to be made in relation to the allegations in respect of S when the photograph at Exhibit 7 was taken. Standing alone all the allegations suffer from obvious evidential weaknesses, but when viewed through the prism of the histological evidence they present an altogether different image.
    1. But I do not believe that I should judge the histological evidence in isolation. It is part of a wider canvas. This is a recurrent theme from the authorities. I must weigh it against my assessment of the credibility of M and F and the (im)probability, judged from a non-scientific stance, that this ghastly event actually took place. So as regards the components of the evidence the court is, up to a point, in a chicken and egg situation.
    1. What I therefore propose to do is to make judicial observations on:

 

i) The credibility, character and personality of M and F.

ii) The use of generalised empirical statistical paediatric evidence.

iii) The use of photographic evidence.

iv) The reliability of ageing bruises by visual observation.

v) The reliability of the lay evidence from the neighbours.

vi) The histological evidence.

I shall then stand back and pull all the threads together and make my findings applying the law as I have set it out above.

Respectfully, this appears to me to be an entirely sensible and solid approach, taking into account all of the relevant matters and not taking into account anything that is not relevant.

What really appeared to trouble the Judge was that on the binary version of events, either the medics were right and these parents had inflicted horrific injuries on their child resulting in the child dying, and had concealed it and had faked a 999 call;  or the medics were not right and that the injuries were caused in a way that could not be medically explained but was not a deliberate or violent act.

    1. In judging the truthfulness of the parents as to the events of the night one has to reflect on the implausibility of what the LA seeks to prove. Although the LA did not explicitly challenge all the elements of the parents’ account as set out by me above, it should not be taken as accepting any of it, save where it is incontrovertible. Its case is that for the crucial period only M and F can say what actually happened, and they say that they should not be believed. However, stripped to its core elements the sequence that they posit is this:

 

i) At about 3 a.m. one of the parents inflicted extreme injury to S’s palms by repeatedly thrashing them in some way with some weapon. S was also punched in the face with such force that his fraenulum snapped. This would have caused S to suffer extreme pain, and he would have been screaming very loudly. The other parent, if not participating in this awful act, was present and complicit.

ii) D either heard all this, but never mentioned anything to anybody, or slept through the whole thing, even though her bedroom is next to S’s in a very compact area.

iii) None of the neighbours heard anything in this compact estate.

iv) At 7 a.m., as I have found, S died. Either one or both of the parents smothered him, or, by an extraordinary coincidence, he died a cot death.

v) At 8.50 a.m. M dialled 999 and seemingly in great distress told the emergency operator that her baby was dead in his cot.

  1. Obviously, improbable things do happen, but this sequence of events seems very unlikely. It is against this unlikelihood that I have to judge the truthfulness or falsity of the parents’ denials.

[The one element in this that I find problematic, or potentially problematic, is that of course it is very unlikely that parents would do such a thing, but one has to take into account that it becomes less unlikely when faced with a child who HAS those injuries. As the House of Lords considered in Re H and R and  Re B, it may well be inherently unlikely that a parent would abuse a child and the average parent would not, but the unlikeliness of it reduces if the Court is faced with a child who has been abused. I am as certain as anyone could be, however, that Justice Mostyn gave every facet of the case a great deal of care and attention, and it is likely that it is my reading here that is at fault]

His comments on the injuries to the palms show as much

The injuries to the palms, which are the most serious of all, and which can be regarded as a touchstone, are shrouded in mystery. The surface area of the palm of a seven month old infant is very small indeed. No-one, apart from Professor H has ever seen anything like these bruises. He has only seen them twice in people with bleeding disorders. Although Dr L posited that they might have been inflicted by a ruler or cane he admitted that their appearance did not really fit with that hypothesis. In argument I pressed Mr S to advance a likely mechanism but he just fell back on “repeated application of significant blunt force trauma” and declined to be drawn into specificity. So I am being asked to conclude that the parents inflicted with some mystery weapon, which no-one can visualise, repeated beatings on these tiny palms causing bruising the like of which none of these experts, Professor H aside, has ever seen before.

In summarising the medical evidence :-

    1. This evidence leads the four experts to conclude, as confidently as they can, that, by reference to the telos of this science as set out by me at para 40 above:

i) All of these injuries were caused in life and not after death;

ii) The injuries to the ears and knuckle were caused about 3 days before death; and

iii) The injuries to the palms and fraenulum were caused about 4 – 12 hours before death (most likely around 4 hours).

    1. In judging these powerful conclusions, at this stage without reference to the wider body of evidence I have sought to set out and comment on above, I would make the following general observations:

 

i) This science is forensically untested. The reason that I have not been given any medico-legal papers detailing the results of legal cases where responsibility for injuries has been found based on this science is because there have not been any, apparently anywhere.

ii) The science is based largely on research conducted on animals. There is almost no published scientific research in this field performed on humans, and none at all on babies. While it is said that the cellular and vascular features of all mammals are identical, this is mere assertion. I do not have any scientific evidence that tells me that neutrophil and macrophage migration is the same in mice, sheep, human adults and human infants.

iii) Biological science is not nearly as certain or predictable as the science of physics or the laws of mathematics. As Dr L accepted “we have biological systems and so therefore you cannot automatically assume that every one of us in this room will have exactly the same rate of accumulation of polymorphs at the site of inflammation – it doesn’t work that way, and there are other factors that may influence that”.

iv) Science is always moving on. Scientific certainties of a past age are often proved conclusively wrong by later generations. In an address to the British Association for the Advancement of Science in 1900 Lord Kelvin, one of the greatest of all scientists, stated that “there is nothing new to be discovered in physics now. All that remains is more and more precise measurement” and in a 1902 newspaper interview he predicted that “no balloon and no aeroplane will ever be practically successful.”[5]. Thus the warning of the President in Re U, Re B at para 23(v) that “the judge in care proceedings must never forget that today’s medical certainty may be discarded by the next generation of experts or that scientific research will throw light into corners that are at present dark”.

And the final conclusions – I recommend reading these three or four times, to really let them soak in

My very final conclusions

    1. I conclude:

 

i) Based on my survey of the lay and psychological evidence it is extremely improbable that these parents have ever deliberately inflicted injury on either of these children. It is, however, possible. I do not accept the neighbours’ evidence as to observations of marks or bruises save as to the marks seen by N2 to the backs of S’s hands on the week-end before he died.

ii) However, I believe that injuries to S, were caused by F recklessly taking both children out in the buggy in disregard of plain safety warnings. M would have been complicit in this, up to a point. There was nothing malign in this. It was just stupidity born of an over-enthusiastic and over-energetic immaturity on the part of F, and, up to a point, M. Obviously, it must never happen again, and I do not believe that it ever will.

iii) Based on my survey of the scientific evidence it is extremely improbable that an innocent explanation for S’s injuries is furnished by the eventuation of those things mentioned above. It is, however, possible.

iv) The paediatric evidence from Professor S does not alter my conclusion in (i) above. Nor does the photographic evidence. It is consistent with my conclusion in (ii). The forensic evidence of FS does not alter my primary conclusion. There are perfectly innocent explanations for blood on the sheet, bib and grow-bag. We know that S suffered from nose-bleeds, that he had an erupting tooth, and had bleeding feet.

v) Although the orthodox histological evidence is powerful I am not prepared to rely on it to displace my conclusion in (i) above for the reasons set out by me above. I would venture to suggest that there needs to be consideration within the medico-legal community as to reliance on histological evidence such as this in the forensic process where there is such a dearth of research on humans, and, particularly, babies.

vi) I am not prepared to find that the parents neglected S in relation to his feet. They sought appropriate medical advice for what was certainly a fungal and possibly also a bacterial infection. It is clear to me that there had been a significant postmortem degeneration in S’s feet by the time the photographs of them were taken at the autopsy.

    1. I am therefore left with two improbable explanations namely that S was brutalised and murdered by his parents; alternatively, that he suffered a sequence of pathologically unlikely events that gave rise to his injuries and overwhelmed him. This is a Popi M case. Just as the decision of the House of Lords left no-one knowing why the vessel plunged to the bottom of the Mediterranean Sea, so we are left here with no explanations for the injuries and death of S, other than those I believe were caused in the bike buggy. This is one of those very rare cases where the burden of proof comes (as Baroness Hale put it) to my rescue and so the parents are entitled to the return of Lord Hoffmann’s value of zero, namely that they will be treated in law as if they did not deliberately inflict violence on and to these children.

 

    1. This is not to say that there is not the possibility, even the real possibility (to use the language of Lord Nicholls in Re H and R when discussing the test under the second limb of s31(2) Children Act 1989), that these parents did indeed so grossly mistreat their children. But a suspicion or a risk is not enough on a fact-finding hearing, as the House of Lords so emphatically confirmed in Re B.

 

  1. I appreciate that the parents, and indeed the LA, want definite answers and I am sorry not to be able to supply them. I am only prepared to find on the 51% balance of probability test, having surveyed all the evidence holistically as the authorities mandate I must do, that I am not satisfied that these parents deliberately abused their children (as opposed to treating them recklessly in the buggy), or neglected or murdered S. Thus far I am prepared to go, but no farther.

That is as close as I think one will ever come to seeing a Judge accept that there are limitations to what even the most exhaustive consideration of the situation, with the assistance of extremely able counsel and experts drawn from a range of disciplines can achieve. This was one of those cases where the Court simply has to say that it is impossible to say what happened – whether the medics are right and a child was effectively violently assaulted and died as a result, or whether there is some other cause for the injuries which exonerates the parents. Being unable to decide, the Judge went back to first principles – the balance of proof falls on the LA, and as they could not prove that the parents HAD deliberately abused their children or neglected or murdered one of them, he had to find that they HAD NOT done so  (the test being binary now – mere suspicion falls away – if it is not proved that a person did X following a finding of fact hearing, then it is proved that a person did NOT do X in the eyes of the law)

Read it again – the Judge is essentially saying that both possible versions – the deliberate harm and the accidental explanation are both highly improbable, but not impossible. He is unable, on that basis, to find that either is more likely than not to have happened, and as a consequence, has to resort to the burden of proof to resolve matters. I can’t ever recall seeing a judgment like this – we bandy around the phrase ‘finely balanced’ all the time (and often use it as a substitute for  ‘arguable’  or ‘with some merit’  or ‘not utterly hopeless’, but this really is the finely balanced case.

As I hope I’ve made plain throughout, whilst this conclusion left me very uneasy, I have nothing but admiration for the careful, logical, structured, considered and exhaustive way in which the Judge tackled this exercise. But it does leave huge question marks for the future of really serious injury cases.  There has been a tendency over recent years (and this may well be right considering how badly we now know that cases like Cannings were approached in terms of accepting medical assertions that have since fallen away) to question the medical opinion; not just as to the confidence of diagnosis and differential diagnosis, but that additional step of ‘what you say is consistent with what you currently believe, but it may not always be the case and in time to come, we may find that this medical opinion as to causation of injuries is wrong’

I don’t know what the answer is here  –  a Court choosing between two (or more) competing medical hypotheses each supported by a medical report is a tough situation and perhaps not the best way for a medical controversy to be resolved  (scientific fact isn’t resolved by cross-examination but by science and testing and Poppers falsifiability principles )  but a Court being driven to speculate about the current boundaries of what science believes to be the case is even more difficult.

A fascinating case, which must have been immensely emotionally draining for all concerned.

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