E (A Child: Care Proceedings Fact Finding)
| Jurisdiction | England & Wales |
| Judge | Lord Justice William Davis,Lord Justice Baker,Lord Justice Peter Jackson |
| Judgment Date | 19 July 2023 |
| Neutral Citation | [2023] EWCA Civ 858 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2023-000810 |
[2023] EWCA Civ 858
Lord Justice Peter Jackson
Lord Justice Baker
and
Lord Justice William Davis
Case No: CA-2023-000810
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EAST LONDON FAMILY COURT
Her Honour Judge Thain
ZE21C00374
Royal Courts of Justice
Strand, London, WC2A 2LL
Laura Briggs KC, Julia Gasparro and Rachel Francis (instructed by Miles and Partners) for the Appellant
Stephanie Hine (instructed by London Borough of Havering) for the Respondent Local Authority
Sam Momtaz KC, Catherine Piskolti and Katie Williams-Howes (instructed by Milner Elledge) for the Respondent Father
Deborah Seitler and Baldip Singh (instructed by Gary Jacobs & Co Ltd) for the Respondent Child by their Children's Guardian
The Intervenor Paternal Grandmother appeared in person
Hearing date: 6 July 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 19 July 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
On 28 March 2023 HH Judge Thain (“the judge”) handed down a judgment following a lengthy fact finding hearing in care proceedings relating to a child (“E”). The judge found that E's mother was the perpetrator of injuries inflicted on E on 30 July 2021. The issue in this appeal is whether the failure of the local authority to disclose a viability assessment and associated documents in relation to the paternal grandmother (“PGM”) meant that the judge's finding in relation to the mother was wrong or unjust.
Factual background
E was born on 20 June 2021. The mother was then aged 21. She had met E's father in July 2020 when she was 20 and the father was 30. Within 6 weeks of the commencement of the relationship the mother was pregnant with E. The mother had had a very difficult childhood and adolescence. She had been placed in foster care when she was 9 and she remained a looked after child until she reached her 18 th birthday. At that point she was moved to independent accommodation and supported by the local authority Leaving and After Care team. The mother had continuing physical and mental health problems. In the later stages of the pregnancy Children's Services of the local authority became involved after the Leaving Care team referred the mother's case to them. That team was concerned about the effect of those problems on the mother's capacity to cope with the imminent arrival of a baby. There were also concerns about the relationship between the mother and the father. The unborn child was placed under a child protection plan. Pursuant to the plan the mother went to live at the home of PGM. The father also lived there. She moved in in June 2021. E was born 4 days later. The mother continued to live at PGM's home with the father and the new baby.
On the evening of 29 July 2021 the mother and father went out for about 90 minutes. They left E in the care of PGM and the father's niece. They remained in the living room. E was asleep for most of that time. She did not require a feed or a change. On their return the mother and father put E into her nightclothes. No mark was seen at this point. Everyone in the house went to bed. At around 3.00 a.m. on 30 July 2021 E needed a feed and a change. The father changed E's nappy and prepared a bottle. PGM gave E the bottle after which E was put back in the cot in the bedroom shared by the mother and the father. The mother played no part in those events. E was given another feed at around 6.00 a.m. by the mother. By now the father had left for work. PGM left for work between 8.00 and 8.30 a.m.
E's normal routine was that she was changed and got ready for the day at around 9.00 a.m. The mother was responsible for this routine on the morning of 30 July 2021. At around 9.15 a.m. the mother sent a photograph of E to the father's mobile phone. This photograph showed red marks around E's left shoulder. There followed a series of angry text messages sent by the mother to the father. The mother did not inform any professional of the marks on E until shortly after 10.30 a.m. in a conversation with her social worker. Later that afternoon E was taken to hospital. The unanimous medical opinion was that the red marks were bruising and that, in the absence of any explanation, the bruising was non-accidental.
The course of the proceedings
By the conclusion of the evidence called at the hearing the issue in relation to the bruising had crystallised. On the basis that it was non-accidental, had it been caused at around 3.00 a.m. by the father or grandmother or was it caused at around 9.00 a.m. by the mother? The judge dealt with the issue at [96] to [130] of her judgment. First, she analysed the medical evidence. She concluded that, in the absence of any plausible explanation involving accident, this evidence demonstrated that the injuries to E were non-accidental. The judge then turned to her consideration of the evidence relating to the 29 and 30 July. She concluded that the 3.00 a.m. feed and E being got ready for the day at around 9.00 a.m. were the two critical periods. Having reviewed the evidence in no little detail, the judge determined that E had sustained her injuries at the hands of her mother when the mother was in a state of high emotional arousal.
On the mother's case the credibility of the father and PGM was very much in issue. She denied doing anything which might have caused the injuries. Thus, the injuries must have been caused by the father and/or PGM. Counsel representing the mother cross-examined PGM. One issue which was pursued vigorously concerned events earlier in July 2021. These were said to show that PGM was willing to protect her son even above protecting E's safety. I assume that the father was cross-examined in similar terms though the voluminous papers served for the purposes of the appeal do not include any transcript of that cross-examination. Counsel for the father cross-examined PGM in the course of which counsel, in the context of local authority involvement with the mother and E in June 2021, asked:
“And is it fair to say that having never had any social service involvement in your life prior to that, whether in respect of yourself or in respect of your own children, this was all pretty much very new to you. Is that fair?” PGM replied “Yes”.
On 14 April 2023 there was a hearing before the judge. This was approximately two weeks after judgment had been handed down. The hearing had two purposes: consideration of the mother's application for permission to appeal; consideration of assessments and reports to be obtained prior to a final hearing and directions for future hearings. The hearing began at 10.00 a.m. and lasted for 1 hour 25 minutes. The judge did not announce any part of her decision until the end of the hearing. At a point around midway through the hearing, the local authority e-mailed to the judge and to all parties a viability assessment dated 9 October 2021. This assessment (which I shall refer to as VA1) had been carried out by two social workers from the local authority in relation to PGM. She had been assessed with a view to her becoming a special guardian for E. The assessment was negative. The document had not been disclosed prior to 14 April 2023. It is apparent that it was disclosed at the hearing on that date because the judge wished to consider a special guardianship order in relation to PGM. This was in the context of E's aunt and uncle withdrawing themselves from consideration as special guardians. The negative assessment was provided to the judge to allow her to consider whether a further assessment would be appropriate. In the event the judge ordered the local authority to carry out a full special guardianship assessment in relation to PGM.
On 18 April 2023 a second version of the negative viability assessment of PGM was included in the bundle which was served by the local authority within the continuing care proceedings. I shall refer to this version as VA2. It was the same as VA1 but with amendments as requested by PGM. In October 2021 the local authority had sent VA1 to PGM. On 28 October 2021 she requested amendments. Those amendments were incorporated into the original assessment. They were apparent on the face of the document, the amendments being italicised. They related to PGM's childhood and to the father's childhood. The amendments were by way of additions rather than deletions.
On 8 May 2023 PGM requested further amendments. This led to a third version of the negative viability assessment to which I shall refer as VA3. Again the proposed amendments were apparent on the face of the document. Most of the amendments were additions to the document albeit that a small number of deletions was requested. At the same time as PGM submitted VA3 to the local authority social workers, she informed the local authority that she was withdrawing from the special guardianship assessment process. On 18 May 2023 PGM e-mailed the local authority's legal department enclosing VA3. The local authority did not disclose VA3 until 27 June 2023 when they sent it by e-mail to the solicitors acting for all parties to the proceedings.
VA1 described PGM's childhood as follows, the history having been gleaned from PGM herself:
“…from the time she was aged about nine until she was around fifteen, she and her (eight) siblings were looked after children by the local authority….as children she remembers that the sibling group were in and out of care of the local authority. They were mainly cared for in children's homes as they were a big sibling group and could not be found foster placement accommodation together….the children were accepting of the situation and “that's how their life was”….their mother did not care about them and put her own needs above those of her...
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