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“Lancashire Hot Pot(ato) “

The Supreme Court have given their decision in Re J, looking at whether a finding of fact that an injury was caused and neither parent can be excluded, forms a basis for finding that such a parent would be a risk to children in a new relationship.

They conclude, to skip to the chase, that it does not.  But before there are fireworks and street parties / wailing and gnashing of teeth, wait, it is a bit more nuanced than that.

http://www.bailii.org/uk/cases/UKSC/2013/9.html

To make it simpler,  Fred and Wilma find themselves in care proceedings, as a result of Pebbles suffering a skull fracture.  The Court finds that the skull fracture was caused non-accidentally, and that it must have been caused by either Fred, or Wilma, who were the only people caring for Pebbles at the relevant time.

The Court looks very carefully to see whether it is possible to say that it is more likely than not that Fred caused the injury, or Wilma, or whether one has to make a finding that neither of them can be excluded as a possible perpetrator.    (The last of these findings is usually called a “Lancashire” finding, named after the leading case that decided that this was an option open to the Court where the evidence was compelling that the injury must have been caused by Fred OR Wilma, but not sufficient to say it was Fred and not Wilma or vice versa)

 Now, the Court, as a result of a previous Supreme Court decision (Re S-B Children 2009)  http://www.bailii.org/uk/cases/UKSC/2009/17.html   have to be careful not to dance on the head of a pin and strive too hard to decide that it was Fred, if the evidence was not there. 

If the Court feel that it is not possible to say with confidence that it was Fred, they shouldn’t make the finding that Fred did it just because he seems more likely than Wilma.  Re S-B suggests that there’s real value, where the evidence is there to allow it, in making a positive finding about whether it was Fred or Wilma, but that Courts should not strive to force the issue if the evidence isn’t there.   (The Supreme Court put that in terms – the risk of doing that is the risk that the Judge gets it wrong, and someone is treated as a risk who is not, and more importantly that someone who IS a risk is treated as though they were not)

 When the Court considers, if they make a Lancashire finding, the risk to Pebbles, they are entitled to consider the risk from both parents, in the light of the finding that neither is excluded. That doesn’t mean that Pebbles can’t live with them, it will depend on a careful assessment of risk, and of how that risk can be managed in the future.

 So, if Fred and Wilma go on to have another child, the threshold criteria is capable of being made out on the basis of the findings about Pebbles.

One of them caused that injury to Pebbles, and if they are both in the same household caring for the new baby, that risk is a live one.   [It won’t mean that they are barred from caring for the new baby, the Judge will consider all of the factors – passage of time, work done, maturation, how they present now, but the Court is entitled to assess whether that risk is sufficiently addressed to make them safe carers for the new baby, or whether the risk is too high]

 But what has been more murky, is what happens if Fred and Wilma split up, and Fred gets together with Betty* and has a baby.

 [*Don’t pretend you’ve never wondered what Betty saw in poor dull Barney Rubble]

 There have been strong arguments that Fred poses a risk to the new baby, because of the findings that he couldn’t be excluded from being the person who hurt Pebbles. Equally, there have been strong arguments that Fred should not be treated as a risk to the new baby UNLESS the Court made a positive finding that he WAS the person who hurt Pebbles.  At some stage, the Supreme Court was going to have to step in and answer it once and for all, and they have finally done so.

 The law is clear that when assessing likelihood of future harm, it doesn’t have to be that the risk is more likely than not to happen, it is a “risk which cannot sensibly be ignored’  BUT that in deciding whether there is a risk at all, there has to be an established fact to put into the pot, or on the scales.

So, Fred and Betty have a baby.  Is the ‘fact’ that Fred was found to be one of two people who must have injured Pebbles, a ‘fact’ that can be put in the pot to mean that there is a risk that he might injure the new baby?

 The Supreme Court decided that this is not a ‘fact’ which can legitimately go into the pot when deciding risk to Fred and Betty’s baby.

“In re S-B is authority for the proposition that a real possibility that this parent has harmed a child in the past is not, by itself, sufficient to establish the likelihood that she will cause harm to another child in the future.

And here  (my underlining)

  1. The question which has been put to us, as set out in the Statement of Facts and Issues, is whether (i) a finding that a child has suffered harm while in the care of more than one person and (ii) a finding that one or both of the carers have perpetrated that harm are findings of fact which may be relied on in subsequent proceedings relating to only one of the potential perpetrators, in support of a conclusion that a subsequent child is likely to suffer significant harm in a new family unit of which that potential perpetrator is part.
  1. The answer which I would give, applying the test set out in para 49 of In re S-B (Children) (Care Proceedings: Standard of Proof) [2010] AC 678, is that these findings may be relied on only to the extent that they may be relevant to the issue the court has to decide. But to find that this information is relevant does not go far enough. This is because such findings would not be sufficient, on their own, to establish that a child in the new family unit was likely to suffer significant harm. If they are the only findings that are available, they must be disregarded in the assessment for lack of sufficiency. A prediction of future harm based on what has happened in the past will only be justified if one can link what has happened in the past directly and unequivocally with the person in the new family unit in whose care the subsequent child is living or will now live.

It is very important to note that the Supreme Court were keen to stress that the problem here arises in cases where the findings boil down to one single issue  “Who caused the injuries to Pebbles, or who can be excluded from causing those injuries?”

They go on to say that in most cases, the case will not be pleaded on the basis of that one finding, and indeed was not in the original fact finding hearing here.

As McFarlane LJ pointed out, there were several facts found by Judge Masterman which might have been relevant to an assessment of whether it was likely that this mother would harm children in the future. There was “(a) gross and substantial collusion expressly designed to prevent the court identifying the perpetrator; (b) failure to protect T-L; (c) deliberately keeping T-L away from health professionals in order to avoid the detection of injury” (para 109). The local authority have chosen not to rely upon these. They acquiesced in the decision to treat this as a one point case. The result was that this mother returned to the household where she had previously been looking after the three subject children for some time without (as far as we know) giving any cause for concern. She has now been looking after her new baby for more than a year, also without (as far as we know) giving any cause for concern.

If findings were made about Fred and Wilma in relation to those sorts of matters, they could go into the ‘pot’ for any children Fred or Wilma have with other people.

 In this case, it was the reliance of the LA on the single issue of “Fred is a risk to this baby, because the Court made a Lancashire finding about him not being excluded as having caused the injury to Pebbles” that meant that the threshold criteria on the new baby was not crossed.

 This is emphasised again here:-

Finally, I would observe that if, as has been said, the current law is causing consternation, that appears to me to be an over-reaction. It is important to emphasise, as Lady Hale has done at paras 52-54, that the court’s inability to establish whether X was the perpetrator of harm to a child in the past does not necessarily mean that the threshold set by section 31(2)(a) cannot be met in relation to a child now being cared for by X. It means however that some other cause for concern, besides the possibility that X was the perpetrator of the harm, must be established. The onus thereby imposed is, in a case of that kind, one which should ordinarily be capable of being discharged where substantial causes for concern currently exist. In practice, in the great majority of cases where a child has been harmed by one of its primary carers but it has not been possible to identify which of them was responsible, and only one of them is now responsible for the care of another child, it will be possible to establish facts on the basis of which a prognosis as to the future risk of harm can be made. The case at hand would itself appear to have been such a case, if the evidence before the court had not been deliberately restricted.

It is going to be important, therefore, in care proceedings, for the schedule of findings to be drawn up carefully, particularising a chain of events both before and after the injury, and making it plain those areas on which the Court can properly make findings that BOTH Fred and Wilma are culpable for, those areas which FRED is culpable for, those areas that WILMA is culpable for and then the ultimate question of who caused the injury being for the Court to determine whether it was FRED, WILMA or one of them with it being impossible to exclude either on the balance of probabilities.

 And thereafter, for any subsequent care proceedings involving children of Fred and Wilma to not rely   on the single  “whodunit” fact, but to rely on the totality of matters which were found in the judgment. 

 It is noteworthy that in fact, what the Supreme Court in effect said to this particular Local Authority is, that the threshold isn’t made out on the way that you have pleaded the case  (that Fred was the subject of a Lancashire finding), but you can pick through the original judgment about and make a threshold based on the findings that were definitive findings as to the parent’s culpability and failings, and just issue the proceedings again.

 So it is not as earth-shattering as ones first impression of it might be. It will mean a careful consideration on any threshold document involving a parent who had previously been the subject of a Lancashire style finding, and also a careful consideration of the schedule of facts proposed on any forthcoming finding of fact hearing.

[And of course none of any all of that tells us how a Court will decide the future of Fred and Betty’s child, just whether in making their deliberations they should pay any attention to the finding that Fred may be one of the two people who injured Pebbles  – NO, they should not. ]

not as innocent as he looks

Oh Fred, you should have put forward an alternative perpetrator

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

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.