A (Children)

JurisdictionEngland & Wales
JudgeLord Justice McFarlane,Lord Justice Tomlinson,Lord Justice Rimer
Judgment Date04 July 2013
Neutral Citation[2013] EWCA Civ 1026
Date04 July 2013
CourtCourt of Appeal (Civil Division)
Docket NumberCase No. B4/2013/1117

[2013] EWCA Civ 1026




Royal Courts of Justice


London WC2A 2LL


Lord Justice Rimer

Lord Justice Tomlinson

Lord Justice McFarlane

Case No. B4/2013/1117

A (Children)

Ms Frances Heaton QC and Ms Ruth Tankel (instructed by the County Secretary and Solicitors Group) appeared on behalf of the Appellant

Ms Janet Bazley QC and Ms Jacqueline Wall (instructed by Farleys Solicitors) appeared on behalf of the Respondent

(As Approved)

Lord Justice McFarlane

This is an appeal which is brought by permission of the trial judge where the appellants are the local authority in care proceedings in relation to two young children. Nothing that has been said during this hearing or that I may say during this judgment is to lead to either of the children or the family members to whom they are related being identified as being involved in Children Act proceedings.


The eldest child, a boy whose first initial is S, was born on 28 March 2011 and is therefore 2 years and 3 months of age, and the younger child, another boy, A, was born on 18 February 2012 and therefore is now just 1 year and 4 months of age. The hearing which has generated the application for appeal is one which was a fact-finding hearing investigating how it was that on 16 May 2012, when young A was taken to a local hospital and was subject to a screening x-ray test, he was found to have two healing fractures of the left sixth and seventh posterior ribs.


The fact-finding hearing was conducted before HHJ Rawkins, who is the designated family judge for Lancashire. The hearing lasted for five days in early March, and on 21 March the judge issued a draft judgment expressing his conclusion that the allegation that the two rib fractures had been inflicted as non-accidental injuries on A had not been proved to the requisite standard by the local authority. That being the only allegation of substance that was there to support a finding of the CA 1989, s31 threshold, the finding of fact effectively brought the application for care orders in relation to both boys, which had been made on the back of the discovery of injuries to A, to an end.


However, because the judge was persuaded to grant permission to appeal, he maintained some statutory protection over the two boys during the period pending this hearing before this court today, and he made care orders under section 40 of the Children Act 1989.


Consequent to issuing his draft judgment, the judge was invited to clarify matters. He conducted a short oral hearing on 8 April where counsel for the local authority in particular sought to achieve further clarity of the judge's views. Counsel had previously submitted a helpful note pointing to the deficits in the judgment as were seen from the local authority perspective. The judge in turn issued his own note on 11 April providing further clarity, and he then delivered a composite judgment which effectively was his original draft with some slight amendment, but it had annexed to it the additional 11 April note.


Notice of appeal was promptly issued by the local authority on 19 April, and today we have heard full argument by counsel on behalf of the local authority and on behalf of the mother.


I should explain that the father, who is, if the allegation turns out to be substantiated, in the pool of perpetrators, is not present and is not represented before this court today. On completely separate matters he is apparently in custody on remand and he apparently does not have legal aid cover to put forward his own representation at this hearing. In addition, the children's guardian has submitted a helpful skeleton argument which effectively supports the position of the local authority.


The local authority's case in short terms is that the judge's conclusion, which was that the allegation that young A had sustained a non-accidental injury whilst in the care of one or both parents was not proved, was an outcome that simply was not open to the judge if the judge had applied the law correctly to the evidence that was before the court.


Initially in their skeleton argument and indeed orally before us today, the local authority had sought a direction for a re-trial of the factual issue if the appeal is successful. However, on further consideration, their position is now that if this court takes the view that any outcome other than the positive finding of fact that they sought was outwith the judge's discretion, then this court should simply substitute the correct finding, but remit the rest of the case for determination to the lower court.


The appeal is resisted on behalf of the mother by Miss Janet Bazley QC and her case in short terms is that the judge was justified in coming to the view that he did on the evidence, that he approached the legal test correctly and that the appeal should not succeed.


Miss Bazley also invites the court to look at the proportionality of this process. She points, on the scale of possible child abuse, to the relatively modest injuries in this case, and she points to the fact that the local authority plan has been and remains for both children to be rehabilitated to the mother's care in due course. The boys have, since these matters came to light in May 2012, been accommodated under the umbrella of interim care orders with members of the paternal family. We are grateful to counsel for the local authority, Miss Frances Heaton QC, who over the short adjournment has clarified the local authority's position. If the appeal is unsuccessful, then any formal public law orders will evaporate, and it is the local authority's proposal that they will on a voluntary basis assist the paternal family and the mother to re-establish her care of the children by Friday of next week.


In any event, Miss Heaton tells us that if the allegation made by the local authority of non-accidental injury is one that this court substitutes for that of the judge after allowing the appeal, then, even on that basis, rehabilitation to the mother's care would proceed on a slightly longer time span of some four weeks under interim care orders in the hope that there would be a final hearing in the case in some three months or so, with the expectation that the local authority at that stage, if they sought a public law order, would limit the extent of their application to one for a supervision order.


Having set the scene, I need say little about the factual background, other than to establish the relationships in the family and the set up as it was in this small family shortly before A was taken to hospital in May 2012.


A's parents originate from Pakistan. They became married to each other in September 2004 as a result of an arranged marriage. Each of them is now either 27 years of age or about to become 27 years of age. They did not cohabit until the mother came to this country in May 2005, and it is clear from what both of them apparently said to the judge that this arranged marriage never achieved a marriage of hearts, as it were, between them and there were difficulties in their relationship going forward from the time that the mother began to live with the father. In particular, she left him in June 2008 and lived in a refuge for a period of some nine months before being persuaded to return to his home. There were difficulties in conceiving any children, but, as it happened, shortly before fertility treatment was to start, the first child was conceived, and as I have indicated, he was born in March 2011. The birth of the child, however, did not assist in strengthening the relationship between the couple. As the judge described, the father had enjoyed a bachelor life before settling down to live with the mother, and he hankered after that existence once he had started to live with her. He would be away from the home frequently. He was unfaithful to her, and at least on one occasion he was violent to her.


In December 2011 when young S was only 9 months old, the father left the family home never to return to live with the mother. However, despite what I have just described, they remained on relatively amicable terms and he visited her in the home several times a week. By the time he departed from that house in December 2011, she was already well-established in the second pregnancy which was to bring about the birth of A in February 2012. She had conceived A some two months after having given birth to S. A's birth was a difficult and traumatic experience. The judge describes it in terms in paragraph 31 of his judgment, and it is plain that the description given by the judge, namely "that this was a difficult time for the mother" is apt.


As well as the difficulty of the birth, which was a caesarean section with the mother's physical inability to care for A during the first days of A's life, she also, once she established herself back at home with the two children, had to look after them both in circumstances where she was the sole carer and in a relatively isolated position.


The next significant event occurred in or around the beginning of May, when A would have been just 2 months or so of age. Both he and his elder brother developed worrying coughs which were later diagnosed as whooping cough. So concerned was the mother about A that she took him to an NHS walk-in centre on 13 May, but after a very short encounter with the doctor, she was simply given some general advice. Things took a significant turn for the worse on 11 May, where A was seen by the mother to be really very unwell, not feeding, blue around the lips and presenting in terms...

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4 cases
  • Re B-S (Children)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 17 September 2013
    ...July 2013 very experienced family judges in the Court of Appeal had occasion to express concerns about this in no fewer than four cases: Re V (Children) [2013] EWCA Civ 913 (judgment of Black LJ), Re S, K v The London Borough of Brent [2013] EWCA Civ 926 (Ryder LJ), Re P (A Child) [2013] EW......
  • Cambridgeshire County Council v PS and Others
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 24 January 2014
    ...the appellate court's approach is to consider whether they are plainly wrong. That test has recently been re-affirmed by McFarlane LJ in Re A (Children) [2013] EWCA Civ 1026 at [34] and by Sir James Munby P giving the judgment of the court in Re B-S (Children) [2013] EWCA Civ 1146 at [77]. ......
  • Re T (Children)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 21 October 2014
    ...paras 32–33 and approved by the President in Re B-S (Children) [2013] EWCA Civ 1146 [78]. The approach to fact finding remains the same: Re A (Children) [2013] EWCA Civ 1026 at [34]. It follows that the finding that was made by the judge with regards to the Appellant's meeting with the moth......
  • Re C (A Child) (Placement for Adoption: Judicial Approach)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 18 October 2013
    ...law contexts has been considered in a number of recent judgments in this court of Black LJ and McFarlane LJ: see Re A (Children) [2013] EWCA Civ 1026, Re V (Children) [2013] EWCA Civ 913, Re P (A Child) [2013] EWCA Civ 963, Re G (A Child) [2013] EWCA Civ 965 and, most recently, Re A (A Chil......

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