Birmingham City Council v Mrs H [1] Mr H [2] S [3] (by her childrens guardian)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MCFARLANE,Mr Justice McFarlane |
| Judgment Date | 01 December 2006 |
| Neutral Citation | [2006] EWHC 3062 (Fam) |
| Court | Family Division |
| Docket Number | Case No: BM 04 C 07115 |
| Date | 01 December 2006 |
[2006] EWHC 3062 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Birmingham Family Courts
Mr Justice McFarlane
Case No: BM 04 C 07115
Mr R McCarthy QC and Mr Dermot Casey (instructed by Legal Services, Birmingham City Council) for the Applicant
Mr I Peddie QC and Miss J Briggs (instructed by William Bache & Co) for the 1 st and 2 nd Respondents
Mr P Lopez (instructed by Osborne & Co) for the Children's Gaurdian
Miss M Wheeler, Advocate for the Court (Instructed by the Attorney General)
Hearing dates: 9 th October 2006 10 th October 2006, 11 th October 2006, 12 th October 2006, 16th October 2006,17 th October 2006, 18 th October 2006, 19 th October 2006, 23 rd October 2006, 25 th October 2006, 26 th October 2006 and 27 th October 2006
FINAL JUDGMENT
If this Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONORABLE MR JUSTICE MCFARLANE
This judgment is being handed down in private on ����. It consists of ��. pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.has been emailed to you it is to be treated as 'read-only'.
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Introduction
1.
1. These care proceedings relate to the wellbeing of S, who was born on the 22 nd July 2004 and who is now aged 2 1/4 years. S's parents are Mr and Mrs H, they are married and therefore share parental responsibility for S.
2. Two previous children have been born to Mr and Mrs H: P, who was born on the 27 th September 1998, but who died aged four months on the 29 th January 1999, and K, who was born on the 3 rd February 2000. Events relating to P's health during his life, and the cause of his death, led the local authority social services to issue care proceedings soon after K's birth. Following a full hearing conducted in June 2000 by Mrs Justice Bracewell, the court found that Mrs H had intentionally obstructed P's airways on four separate occasions leading, on the last occasion, to his death. This finding of fact has never been accepted by the parents. In consequence of the finding, and as a result of the parent's position, a care order was made in November 2000 which was based upon a plan for K's adoption.
3. At a subsequent hearing before Mr Justice Kirkwood in October 2001 the parents applied to discharge the care order and the local authority applied to free K for adoption. At that hearing the court dismissed the parents' application and granted a freeing order which, in due course, led to K being adopted.
4. The birth of another baby, S, in July 2004 led to renewed concern for the welfare of a child in Mrs H'ss care. The local authority issued care proceedings seeking a care order with respect to the new baby. The only matter relied upon by the local authority in suggesting that S would not be safe in her parents' care was the finding of fact made in 2000 (and upheld in 2001) that P had been smothered by his mother.
5. Medical understanding as to the processes involved that may lead to a small baby's breathing becoming compromised is constantly developing. At the start of these proceedings the parents asserted that there was a need to re-evaluate the medical expert opinion regarding P's various collapses and death in the light of current medical thinking and research. They therefore applied for the court to re-visit and/or review the previous finding of smothering. The parents' application was strengthened by the fact that the key expert witness in 2000 who had supported a diagnosis of smothering was Professor Sir Roy Meadow. At the time of the trial Professor Meadow was regarded as a distinguished paediatrician; subsequently he had been the subject of well publicised criticism concerning evidence that he had given in other proceedings.
6. Against that background the parents' application for a review of the medical diagnosis was granted by Mr Justice Holman in November 2004. To that end permission was given to the parties for the joint instruction of a paediatric expert to report on all aspects of the case relevant to the question of whether or not the mother had injured P.
7. Considerable difficulty was encountered in finding a suitably qualified and experienced paediatrician and it was not until June 2005 that the expert who was to take up that role was eventually instructed. The process of re-assessing the medical evidence, which has included undertaking a seemingly exhaustive range of tests upon retained body tissue relating to P, has taken over 12 months, with the result that it is only now, over two years after S's birth, that her case has been ready to come on for hearing.
8. In addition to hearing medical evidence in 2000, Bracewell J heard from all of the relevant witnesses who had first hand knowledge of P's various breathing difficulties and his final collapse. Principal amongst these witnesses was the mother, in whose sole care P had been at the time of each of the four events. In her judgment the judge made damning findings as to the mother's actions and her credibility. Bracewell J considered that the findings that she was driven to make against the mother were of 'very great importance' in the evidential 'jigsaw' that had been laid before her. At the core of these adverse findings were various inconsistent accounts that had been given by the mother concerning key events in P's life.
9. The mother has for many years taken medication, one of the side effects of which may affect memory or cause confusion in the patient. Permission was therefore given to the parents to have the issue of the quality of the mother's memory, and the effect upon it of her medication, assessed by appropriate experts; the parents' aim being to challenge the findings made by Bracewell J as to the mother's credibility.
10. The hearing that is now concluding has lasted for some three weeks. It is right to stress at the outset that it has not been a complete rehearing of the factual allegations made with respect to P's illnesses and death. Subject to re-visiting the question of the mother's ability accurately to recall events, the detailed findings of fact made by Bracewell J as to the day-to-day and hour-by-hour events stand. Neither has this been an appeal hearing from the judgments of either Bracewell J or Kirkwood J. The process upon which this court has been engaged has been to reconsider two key parts of the evidential 'jigsaw', to consider whether either of them has changed in shape, weight or import and, if so, consider what impact such change has upon the overall 'picture', namely the primary finding of four occasions of smothering.
11. The process that has been undertaken in this case has been unusual. It is not uncommon for fact-finding decisions to be reviewed by the trial judge if additional information becomes available. Equally there are sometimes cases (for example following a successful appeal) when the full fact-finding process is conducted again before a different judge. The procedure adopted in this case, where a new judge conducts a review limited to three significant parts of the case, is extremely unusual. The process has inevitably given rise to procedural and conceptual difficulties, to which I will turn in due course.
12. The stakes for S and her family are high. If the findings of Bracewell J are reversed, then it is accepted that no other grounds exist that may justify keeping her from her parents' care and she will go to live with them without any court order. If the finding of smothering stands, the local authority consider that the only plan that can adequately protect S from harm is for her relationship with her parents to be permanently severed and for her to be placed with strangers for adoption.
13. This judgment is structured in the following sections:
i) A summary of the background to the case
ii) The issues to be considered
iii) The burden of proof, standard of proof and the legal context
iv) Impact of medication upon the mother's memory
v) Medical evidence regarding P's breathing difficulties and collapse
vi) Professor Sir Roy Meadow's evidence
vii) Conclusions.
14. The parties are agreed that this judgment should be made available to the public in an anonymised form. The original fact-finding judgment of Bracewell J, together with her subsequent decision and that of Kirkwood J in 2000 and 2001 have already been published, as have earlier decisions made by Charles J (the judge previously allocated to this case). In December 2005 Charles J handed down a wide-ranging judgment which explained and analysed the issues in the proceedings as they then were. That judgment is a public document (neutral citation: [2005] EWHC 2885 (Fam)) to which I will make reference on a number of occasions during the judgment that now follows. At paragraph 185 of that judgment onwards Charles J considers the question of publication of judgments. No party before me has sought to argue that any contrary approach should be adopted and I respectfully agree with and adopt the analysis made by Charles J in that section of his judgment.
Background
(1) P's breathing difficulties in November 1998
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