C and Others (Care Proceedings: Fact-Finding)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Lord Justice Warby,Lady Justice Whipple |
| Judgment Date | 26 January 2023 |
| Neutral Citation | [2023] EWCA Civ 38 |
| Docket Number | Case No: CA-2022-001532 |
| Court | Court of Appeal (Civil Division) |
[2023] EWCA Civ 38
Lord Justice Baker
Lord Justice Warby
and
Lady Justice Whipple
Case No: CA-2022-001532
CA-2022-001715
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT BIRMINGHAM
HH Judge Tucker
BM21C00115
Royal Courts of Justice
Strand, London, WC2A 2LL
Lorna Meyer KC and Kirsty Gallacher (instructed by Greens Solicitors) for the Appellant
Nick Goodwin KC (instructed by Local Authority Solicitor) for the First Respondent
Owen Thomas KC and Tracy Lakin (instructed by The DM Partnership) for the Second Respondent (written submissions only)
Gina Allwood (by direct access) for the Intervenor
Hearing date: 20 December 2022
Approved Judgment
Background and summary of proceedings
This is an appeal against findings of fact made in care proceedings.
The case concerns a large family. The father has nine children, four with his first wife, who tragically died in a road accident in 2009, and five with his second wife, hereafter referred to as “the mother”, to whom he was married in 2010. I shall refer to the children by anonymous initials. The children of the first marriage are A (now aged 24), B (23), C (17) and D (14). The children of the second marriage are E ( 9), F (7), G (6), H (born in July 2020, now aged 2 1/2) and J (born in June 2022, during the course of these proceedings).
After the father's remarriage, the mother moved into the family home and helped to look after his older children. The judge found that there were difficulties between the mother and her stepchildren who resented her role in their lives and felt a degree of jealousy towards the younger children as they arrived. In her judgment, the judge observed: “The emotional distress of the older children in losing their own mother, and their struggle to come to terms with the consequences of this have been very real and are important dynamics within the family.” The mother, on the other hand, “was responsible for the running of the house and the care of the children …. [Her] task, given the number of people in the household and their differing needs was a significantly demanding one.” Her second child, F, is on the autistic spectrum.
The family has been known to social services for a number of years. On several occasions, allegations were made that the children had been assaulted by one or other of the parents, but with one exception none of the allegations was either proved or accepted by the parents. On some occasions, the allegation was made by one or other of the children, but on every such occasion the allegation was later retracted. The exception was an allegation in 2017 that the mother had slapped D.
On Saturday 8 May 2021 at about 6pm, the mother telephoned the NHS 111 number and reported that H, then aged 10 months, had a “big lump” on his head. She denied that he had bumped his head and said that it had come from nowhere. She passed the phone to the father who described “a watery kind of bump on the side of his head”. They were advised to take H to hospital and, in line with Covid procedures then in place, arrived at the pre-arranged time of 8pm. During the initial assessment, the mother said that she had first noticed the bump when bathing H earlier that afternoon and that she did not know of any incident which might explain the injury. She said that she had waited until the father returned from work to see what he thought about it before calling 111. The mother repeated this account on other occasions when questioned at the hospital that evening.
On examination, H was found to have a swelling over the right side of his head measuring 10 x 8 cm. Scans revealed that he had sustained a linear undisplaced fracture of the right parietal bone and a shallow focal extra-axial haematoma (probably extradural) beneath the fracture line.
The parents were arrested and interviewed. The mother provided a written statement but otherwise refused to comment. The father described an occasion when H had fallen backwards while trying to pull himself up on 4 May. The police spoke to the children who described various incidents – that H had fallen from his mother's lap, that he fell when trying to pull himself up, that he had fallen off the bed some time earlier, that he had been dropped by his siblings on occasions, that on 5 May he had fallen onto metal bars used in weights training, and that on 8 May he had been driven in the footwell of A's car supported by his mother's legs. One of the children said that the mother had first noticed the lump on the evening of 7 May (rather than on the afternoon of 8 May as she had alleged). Two of the older children, C and D, were later interviewed under the Achieving Best Evidence procedure. In the course of his interview, C, then aged 15, gave more details of the incident involving the metal bars. The judge summarised his account at paragraph 31 of her judgment:
“C stated that H had hurt his head ‘a few days before’ but that the injury was only noticed at the end of Friday night. He stated that H had fallen onto some metal gym equipment and hurt his head, by going onto his bottom first and then falling back onto the metal thing. He stated that he did not tell his mother initially as he thought he would get into trouble, but eventually told his sister who told their father. C stated H had cried, describing it in different levels of intensity at different points. He also stated that on the morning after noticing the injury (i.e., the Saturday morning) his mother had asked him what she should do and that C told her to take H in an ambulance.”
On 9 May, the six younger children were placed under police protection. H was placed in foster care and the other five children remained at their home, living with a paternal aunt. The parents and two eldest children, A and B, moved out of the property. On 3 June, the local authority started care proceedings in respect of the six younger children and, on 21 June, they were all made subject of interim care orders. The father's eldest adult child, A, was joined as an intervenor to the proceedings. On 9 November 2021, C was returned to his parents' care under the interim care order. All of the other subject children are now placed with members of the extended family.
The proceedings were listed for a final hearing (initially intended to encompass both fact-finding and welfare determination) lasting 15 days in March 2022. The local authority filed a lengthy “schedule of allegations which are asserted to satisfy the threshold criteria” (i.e. for the making of orders under s.31 of the Children Act 1989). The schedule (hereafter “the local authority threshold document”), was divided into two parts – part A (allegations 1 to 18) relating to the injuries sustained by H, and part B (allegations 19 to 30) headed “Assaults and allegations of assault (other than H's injuries)”.
On 18 February 2022, a case management hearing took place to consider in particular two issues – (1) the composition of the local authority threshold document, in particular (a) “whether the way in which the local authority seeks to rely on part B of the threshold was lawful” and (b) “whether it is proportionate for the local authority to rely on part B in any event”, and (2) whether any of the children should give evidence. The order made following the hearing recorded that the local authority confirmed its position “that they do not intend to prove the truth of the allegations in part B of the threshold but only that the fact that the allegations were made (sic) as they accept that on the basis of the evidence they are unable to prove that they are true”. The order also recited that the judge indicated that she would provide a determination on the two issues during the week commencing 21 February 2022. The order contained a number of other recitals and case management orders, including a recital that the 15-day hearing in March was “not ready to proceed to welfare determination” and would therefore proceed as a fact-finding hearing only, and orders relating to police disclosure, the submission of supplemental questions to the experts, and a timetable for the filing of further statements.
In the event, it was not until 2 March that the parties were informed of the judge's decision on the issues in dispute at the case management hearing, and a judgment was handed down on those issues on 4 March. On the first issue, she concluded that “it would not be appropriate to exercise case management powers at this stage to prevent the local authority from placing before the Court the evidence [it] relies upon to prove the determinations it seeks and which are set out in … the [revised threshold].” She acknowledged that some of the findings
“may be more problematic for the local authority to establish on the evidence without proving the truth of the allegations made by the children. However, I still did not consider it appropriate at this point to prevent that issue proceeding to trial. Whether any inference can be drawn from such primary facts as may be established will depend upon the evidence and the Court's assessment of that evidence. It would, in my judgment, be premature, at this stage, to prevent the evidence the LA seeks to adduce to establish these matters from being considered and heard … I recognise … that the Court will need to be astute not to be led (improperly) into making findings on an unsafe basis, but, with clear and structured analysis and thought process that error can be robustly avoided.”
As for the second issue, the judge decided that the parties should have an opportunity to consider her ruling on the first issue before setting out their final position in respect of the children giving evidence, adding “an initial observation” that, given the local authority's allegation that the parents...
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