Cambridgeshire County Council v PS and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ryder:,Lord Justice Christopher Clarke,Lord Justice Tomlinson,or |
| Judgment Date | 24 January 2014 |
| Neutral Citation | [2014] EWCA Civ 25 |
| Docket Number | Case No: B4/2013/2763 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 January 2014 |
In the matter of S (A Child)
and
and
[2014] EWCA Civ 25
Lord Justice Tomlinson
Lord Justice Ryder
and
Lord Justice Christopher Clarke
Case No: B4/2013/2763
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Cambridge County Court
His Honour Judge Yelton
PX13C00053
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Debra Gold (instructed by Cambridgeshire County Council) for the Appellant
Mr Christopher Bramwell (instructed by CB4Law Solicitors) for the First Respondent
Ms Margot Elliott (instructed by TV Edwards LLP) for the Second Respondent
Miss Eilidh Gardner (instructed by Janet Thompson Solicitors) for the Third Respondent
This is an appeal brought by an applicant local authority against the findings of fact made at a hearing in public law children proceedings brought under the Children Act 1989 [CA 1989] which took place on 10 September 2013 in the Cambridge County Court. The proceedings concern a 12 month old baby girl who I shall call 'S'. The local authority was Cambridgeshire County Council and the other parties were S by her children's guardian and S's parents who were separately represented.
The precipitating circumstance for the proceedings was the clinical presentation of S on her admission to hospital on 30 April 2013. By the time the hearing took place the detail of that presentation was not in dispute. There was un-contradicted medical evidence that S had been brought to the hospital with a serious head injury. That injury can be described in simple terms as being two skull fractures, one at each side of the back of S's head, one of which was stellate, with associated brain haemorrhage and swelling.
I have called the harm an injury for reasons which will become clear, but as the identification of the key issues in the proceedings and the terminology that was used are critical to the appeal, it needs to be understood that this was a case in which the court had to decide among other questions whether facts existed sufficient to satisfy section 31(2) CA 1989 (known as the threshold criteria) namely, whether S was suffering significant harm, whether that harm was attributable to the care given to her and whether that care was not what it would be reasonable to expect a parent to give to her. Section 31(2) reads as follows:
"31(2) A court may only make a care order or supervision order if it is satisfied -
(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm or likelihood of harm, is attributable to -
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him;
or(ii) the child's being beyond parental control."
The local authority's case in writing was that the injury had been caused by two separate blunt impacts to the child's head or by the force occasioned in a bilateral crushing mechanism. That was colloquially described in a schedule of findings of fact as 'non accidental injury' and it was alleged that the injury had occurred while S was in the care of her parents. It was also alleged that one of the parents caused the injury and that the other failed to protect S from that harm. It was not alleged that both parents caused the injury nor was any other fact put in issue that would have been relevant to the question of whether the harm suffered was attributable to the care given by the parents, for example, any detail relating to the alleged perpetrator, the failure to protect or the family's upbringing of S.
The judge concluded that S suffered significant harm while in the care of her parents and that the harm was caused by an injury. He was not satisfied that either of the parents had deliberately inflicted the injury. The local authority appeals that conclusion on the basis that in an untranscribed exchange after the judgment the judge is said to have declined to exclude an accidental cause. That discussion was not part of the judgment and has not led to any further reasons being given by the judge. In their grounds of appeal, they assert in summary that:
i) the judge was inconsistent in finding that there had been an injury and that the parents had not deliberately inflicted the same;
ii) the judge's conclusion that the injury had been sustained in an unexplained accidental way was inconsistent with the medical evidence and/or his other findings;
iii) the judge was wrong not to draw the inference that the parents' lies were indicative of their culpability;
iv) the judge's reasoning for his finding that the parents had not injured their child was insufficient.
Each of the grounds of appeal is misconceived for the reasons I shall explain. The judge was not inconsistent in his findings which were not inconsistent with the expert medical opinion. He did not find that the injury was accidental (which would have been a contradiction in terms) nor did he find that the parents had not injured their child. The judge cannot be said to have been plainly wrong in the findings he made nor in the inferences he drew or declined to draw and his reasoning was sufficient given that he had the benefit of hearing the oral evidence of the adults who were present when the child was injured and no part of that evidence as accepted by the judge has been demonstrated to this court to be logically inconsistent with the judge's findings. In short, the local authority pursued a case, some of which they failed to establish or have yet to establish. At the conclusion of the appeal hearing the appeal was dismissed and the proceedings were remitted to the allocated judge for a further hearing where any outstanding issues of fact that may need to be decided can be determined in the same hearing that the welfare and proportionality evaluations are conducted by the court.
This is an appeal in care proceedings in which the background problem is a failure by the parties to identify the key issues which needed to be determined by the court and then how those issues should be determined. Before this court, the local authority's understanding of their own case and the principles to be applied where significant harm has been suffered by a child and where the mechanism for that and / or its alleged perpetration is one of the facts in issue in the proceedings, can only be described as worrying. The hearing that gave rise to the findings which are the subject of this appeal was what is known as a 'split hearing' where discrete findings of fact are made in a hearing which is separate from the final hearing at which the welfare of the child is evaluated and determined. It is by no means clear why that form of case management was adopted in this case. It was an inappropriate way of dealing with necessarily inter-related issues of fact and welfare.
It is common ground before this court, as can be seen from the judge's judgment, that there were other social care issues that may be relevant to welfare which are yet to be determined. Given that the judge in the county court may be asked to make further findings, this court will of necessity be brief and somewhat circumspect in its description of the family. All that this court needs to record is that the parents had difficulty finding suitable accommodation for themselves and their child. At the time the injury occurred they were living with the paternal grandmother and her partner in the grandmother's accommodation which was a one bedroom flat. They used the living room as their home and they negotiated the logistics of grandmother's night shifts, father's daytime employment and everyone's need to have access to the facilities available in the flat.
Dealing then with the circumstances of the harm that was suffered, the judge found that S had been vaccinated by a health professional on 29 April 2013 when nothing of concern was noted. Having regard to the medical evidence about the timing of the harm, he concluded un-controversially that whatever happened it was shortly before S was taken to hospital on the evening of 30 April 2013. He also found un-controversially that S was taken to hospital by mother and grandmother's partner who had been in the flat at the time of the injury and that the child's father and grandmother had also been present in the flat when the injury occurred.
Given the adults who were present in the flat at the material time and in the circumstance that there was no reliable direct evidence about the mechanism or perpetration of the harm, the theoretical pool of perpetrators if the harm was not accidental included all of the adults. It was either agreed between the parties or the local authority itself chose to limit that pool so as to exclude grandmother and her partner based solely upon the fact that the parents sought to exclude them. There may have been a better legal (i.e. evidential) or assessed social care basis for that decision, but if there was, this court is unaware of the same. Given that it appears to be conceded, and in any event the judge found as a fact, that all of the adults told deliberate untruths about the circumstances in which the harm occurred and the split hearing was limited to an examination of the responsibility of the parents alone, the limitation on the pool was not tested in evidence before the judge and is an unreasoned position which on its face calls for an explanation.
It was a conceded fact before the judge that a false history of how the harm occurred had been given at the...
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