Birmingham City Council v H and Others
| Jurisdiction | England & Wales |
| Judgment Date | 13 December 2005 |
| Neutral Citation | [2005] EWHC 2885 (Fam) |
| Docket Number | Case No: BM 04 CO 7115 |
| Court | Family Division |
| Date | 13 December 2005 |
[2005] EWHC 2885 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
THE HONOURABLE Mr JUSTICE CHARLES
Case No: BM 04 CO 7115
Roger McCarthy QC and Dermot Casey (instructed by BCC) for the Applicant
Ian Peddie QC and Joanne Briggs (instructed by William Bache & Co) for the First and Second Respondents
Paul Lopez (instructed by Osbourne & Co) for S's Guardian
Hearing dates: 14 to 24 November 2005
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 judgment is being given in public on the basis that, save with the prior leave of the court, 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.
Charles J :
Preliminary
I am giving this judgment in public in an anonymised form. I give my reasons for this later.
This introduction is inevitably a restricted account of events and because of that it does not give a full picture. A fuller background is provided by earlier judgments of Bracewell and Kirkwood JJ. I have decided to place them in the public domain in an anonymised form and on the basis of an injunction preventing the identification of persons concerned. I give my reasons for this later.
I shall refer to the child who is the subject of this case as S. She is the third child of the first and second respondents who I shall refer to as Mr and Mrs Haynes, because this is the pseudonym they have been known by in the media.
The parents have been married for a number of years and they have had two other children. Their first child P died on 29 January 1999 aged 4 months. Their second child K was born in early 2000. She has been adopted.
The cause of P's death was a central point of the proceedings relating to K. Those proceedings included what are commonly called a fact finding hearing and a disposal hearing. They also contained a hearing at which the parents sought the discharge of the care order. That application was refused. The first two hearings were before Bracewell J and the later hearing was before Kirkwood J. They gave judgment on respectively 29 June 2000, 7 November 2000 and 11 October 2001. The second judgment of Bracewell J was delivered in an anonymised form in open court, and is therefore a public document. I have adopted most of her anonymisation.
At the fact finding hearing in June 2000 Bracewell J found to the civil standard of proof that Mrs Haynes had obstructed P's airways on four separate occasions leading to cerebral oedema and his death on the last episode. In short that Mrs Haynes killed P and had intentionally obstructed his airways on three previous occasions. In doing so Bracewell J heard medical evidence and evidence from Mrs Haynes (and others). Bracewell J analysed and made findings on such evidence. She rejected the evidence of Mrs Haynes concerning the history of the four episodes and did not find her to be a truthful witness.
Both Mr and Mrs Haynes have always rejected the findings of Bracewell J and have maintained that A's death was caused by a natural cause or causes. This rejection is recorded and commented on in the second and public judgment of Bracewell J.
It is common ground between all the medical experts who have considered this case (and there have been a great number) that the undisputed elements of the history relating to the four incidents are consistent with, but not diagnostic of, P's airways being intentionally blocked. It is also common ground that in respect of each of the four incidents Mrs Haynes had the opportunity to do this and that no other person did. In this context there is, of course, nothing unusual in a mother being the person who is most often alone with her baby.
The issue relating to the cause of P's death (and the earlier incidents) was, and is, whether they have a natural or non-accidental cause or causes or whether Mrs Haynes was responsible for them and therefore inflicted harm on P.
Amongst the medical evidence heard and read by Bracewell J was evidence from two paediatricians Professor Meadow and Professor X. It is already in the public domain that the Professor M referred to by Bracewell J in her public judgment is Professor Meadow. These experts disagreed. Professor Meadow was of the view that it was more likely than not that A's death was caused by the mother as Bracewell J found was the case. Professor X proceeded on the basis that the account of the history given by Mrs Haynes was truthful and was of the view that it was more likely than not that the cause of the incidents and thus of A's death was an unknown metabolic cause. Bracewell J found that parts of the accounts given by the mother to Professor X were not accurate or intended to be helpful in finding the truth.
Thus the parents had support from Professor X, and the upshot of all the medical evidence in June 2000 was that the choice was between smothering and an unknown metabolic cause. A considerable amount of work and investigation had been done by a number of doctors as the background to that conclusion.
At the disposal hearing in November 2000 Bracewell J made a care order with a care plan for adoption.
In 2001 there was an investigation by the police prompted at least in part by the parents reporting Professor Meadow and another doctor to the coroner and the police for perjury and to the GMC for misconduct. The parents had enlisted the help of a councillor to act on their behalf. During that investigation a number of other medical experts became involved. Professor X's position remained the same. Kirkwood J considered the additional medical evidence and the criticisms then levelled at Professor Meadow. He concluded that there was absolutely nothing in the medical material that had arisen since June 2000 to show that the finding of Bracewell J was apparently wrong and that, if anything, the result of the police inquiries reinforced it.
After the disposal hearing in November 2000 both parents sought permission to appeal the earlier findings made by Bracewell J in June and to appeal the care order. These applications were refused on paper by Thorpe LJ. The father sought a reconsideration at an oral hearing. There is a record of that application being refused but the father has no recollection of attending such a hearing. It seems that it may have been refused without a hearing on the basis that as the mother (who was then separately represented) had not made such an application the father (then in person) had indicated that he did not want an oral hearing. No application to appeal the order of Kirkwood J was made.
No criticism is made of the approach in law taken by either Bracewell J or Kirkwood J. I comment that the approach taken by Bracewell J has been confirmed by later cases to have been the correct one. It is manifest from her judgment that she recognised the respective roles of the court and the expert witnesses (to which I return later) and had regard to all aspects of the evidential jigsaw she referred to. She did not proceed on the basis of suspicion but on the basis of undisputed facts and facts found by her to the civil standard for the reasons she gave.
The parents do not now seek the return of K to their care.
S was born on 27 July 2004. The local authority commenced care proceedings in respect of her very shortly after her birth. She has been, and is, the subject of interim care orders and is placed with foster parents. She has never lived with her parents but has extensive supervised contact with them.
I was told by their counsel that the attitude of the parents has changed since the birth of S and thus since the disposal hearing before Bracewell J concerning K. I have not heard evidence as to this. It is however the case that the parents made it clear during the hearing before me that they do not wish to be identified by the media at this stage.
The parents oppose the making of a care order in respect of S and seek her return home.
A central issue in the current proceedings is the effect in them of the findings made as to the cause of P's death in the proceedings relating to K. The local authority rely on those findings to establish the jurisdictional threshold for making a care order in respect of K, and thus the jurisdictional trigger to the court's ability to consider what order would best promote the welfare of S. The parents argue that those findings should not be so relied on.
The position reached in these proceedings
The dates for this hearing were fixed some time ago. They were fixed on the basis that it would be an effective hearing at which substantive decisions having a long term effect would be made. For a number of reasons this has not proved to be the case and it is common ground between the parties that the only welfare issues to be dealt with now relate to interim contact.
On 24 November 2004 Holman J made an order in the following terms:
" Permission is granted to all parties jointly to instruct a further expert, whose identity is agreed between them and whose speciality is essentially that of a paediatrician. —The letter of instruction shall be agreed and signed on behalf of all parties. —Permission for all papers (including transcripts of judgments or evidence, or agreed notes of evidence) filed or to be filed in these proceedings and in the previous proceedings concerning K to...
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