A (Children)
| Jurisdiction | England & Wales |
| Judge | Senior President of Tribunals,Lady Justice King,Lord Justice Sales |
| Judgment Date | 25 July 2018 |
| Neutral Citation | [2018] EWCA Civ 1718 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2018/0188 |
| Date | 25 July 2018 |
[2018] EWCA Civ 1718
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
(Family Division)
Mr Justice Francis
[2017] EWHC 3707 (Fam)
Royal Courts of Justice
Strand, London, WC2A 2LL
Senior President of Tribunals
Lady Justice King
and
Lord Justice Sales
Case No: B4/2018/0188
Frances Judd QC and Tim Parker (instructed by instructed by the Legal Department London Borough of Southwark) for the Appellant
Andrew Bagchi QC and Gemma Kelly (instructed by Freeman Solicitors and Imran Khan & Partner Solicitors) for the First and Second Respondents
John Tughan QC and Rebecca Foulkes (instructed by Harris Temperley Solicitors) for the Third Respondent
Mark Twomey QC and Neil Shah (instructed by Miles & Partners Solicitors) for the Fourth Respondent
Hearing date: 3 July 2018
Judgment Approved
This is an appeal brought by the London Borough of Southwark (“the local authority”) from an order made in the High Court on 8 January 2018 whereby the judge dismissed the local authority's application for care orders in respect of five children aged between 1 and 16 years.
A recital to the judge's order set out the basis for his dismissal of the application as follows:
“Upon the Court finding that the local authority had not proved that the genital injuries and the fatal neck injuries suffered by S were deliberately inflicted and that therefore the threshold criteria set out in section 31(2) of the Children Act 1989 are not satisfied in this case in relation to each of the children.”
It is against those findings of fact that the local authority now appeal.
The trial which led to the making of the order was a designated finding of fact hearing heard over 15 days in relation to a sixth child of the family, a ten year old girl S, who died at the family home on the night of 19/20 November 2016.
The issue before the court is whether the judge fell into error in the findings he made in relation to certain medical evidence and, thereafter, failed properly to consider the totality of all the evidence prior to determining that the outcome of the case had to be decided in percentage terms by reference only to the burden of proof.
Background
On Saturday 19 November 2016 the mother and children visited family members whilst the father was at work. By the middle of the evening all the family were once again at home where they remained. S was found dead around 10am on Sunday 20 November 2016 in the bedroom she was sharing with her younger sister (then aged six) and her little brother (then nearly four). A 999 call was made. Initially the police and paramedics who came in response to the call believed that S's death was as a result of a tragic accident; she had apparently become entangled in, and strangled by, some decorative netting around her top bunk.
On 24 November 2016, a special post mortem was conducted by Dr Nathaniel Cary and Dr Andreas Marnerides. In his preliminary report, Dr Cary concluded that S's death was probably the result of a sexually motivated homicide. At that stage, Dr Cary's opinion was that death had been caused by ligature compression to the neck (a ligature mark on her neck being consistent with strangulation) and that there was, in addition, evidence of injury to both S's internal and external genitalia as well as the anorectal region.
Dr Cary's report prompted the police to treat the death as a potential crime. Unfortunately, however, in an investigation replete with the sort of mistakes made in the Poppi Worthington case ( Cumbria CC v M&F [2014] EWHC 4886 (Fam) [82–100]), the opportunity to gather critical evidence including DNA and fingerprint evidence, was lost consequent upon the delay and the deficiency in the police investigation.
The judge described a catalogue of failures which he set out in some detail in his judgment concluding that:
“43…the police appeared to have closed their minds during the crucial period after the discovery of the body to the possibility of third-party involvement, or a perpetrated act, which led to most or all of the above failures.”
As if the task subsequently faced by the judge (and those representing the parties) was not challenging enough, there were also serious deficiencies in the approach the police took to disclosure. The judge was highly critical of the police saying:
“44. I regard the disclosure of relevant material by the police in this case to have been woefully inadequate.”
The judge, whilst acknowledging the resource issues facing the police went on to observe:
“However, this case was no ordinary situation, but a case which possibly involved vaginal and anal penetration of a ten year old prior to her murder. I do not think it gets much more serious than that.”
I agree.
In the light of the post mortem findings, the local authority applied for an emergency protection order in relation to the five surviving children (although in the event this was only pursued in relation to C, (the only other girl) and D (their third son then aged nearly four). In due course, the two younger children were returned to the mother's care (the youngest child, E, a bay of a few months old, remained in the mother's care throughout) and, following the judge's order dismissing the application for a care order, in January 2018, the whole family were reunited. As matters stand today, none of the children are the subject of protective orders and the family have now been living together under the same roof for a period of six months.
The parties' positions
The local authority's position is that there must be a retrial. They submit that notwithstanding the obvious distress and disruption that this would involve the case is nevertheless of such gravity, and the potential child protection risks so great, that there is no alternative.
In this appeal, not only the parents, but also A (now aged 16) and B (now aged 14) have been represented. These two boys have had separate representation throughout given that B was considered by the police potentially to be responsible for his sister's death and both were within the so called “pool of potential perpetrators” in the care proceedings.
Mr Bagchi QC on behalf of the parents, Mr Tughan QC on behalf of A and Mr Twomey QC on behalf of B have accepted, to various degrees, that the judgment is susceptible to significant challenge. They each however submit that, notwithstanding the limited analysis in the judge's judgment, the judge was entitled to reach the conclusion that he did. Further, they each strongly and tenaciously submitted, that if the reality is that the judgment must be set aside, there should be no further proceedings or retrial. Mr Twomey on behalf of B, argued not so much against the concept of a retrial, but sought some form of indication from this court, for the benefit of a future first instance judge, that it would be disproportionate for his young lay client to remain in the pool of potential perpetrators at any retrial.
Grounds of Appeal
Although there are five grounds of appeal, the local authority focuses on two main grounds of challenge to the judge's findings, namely:
i) That the judge's analysis and conclusions as to S's genital injuries were inadequate and wrong.
ii) That in his analysis and conclusions as to how S died (mechanism of death) the judge was in error in excluding or failing to give adequate weight to the genital injuries sustained by S.
A respondent's notice was filed on behalf of the parents on 29 March 2018. By that notice it is submitted that, even if the judge had found that S had been sexually assaulted and killed by a third party, there was sufficient evidence to uphold the judge's order on the basis that the judge could not have found the section 31 threshold satisfied as he could not have concluded that the perpetrator was one of the four family members in the proposed pool of perpetrators, the judge not having excluded the possibility of an intruder being responsible for S's death.
The medical evidence in brief
The judge had before him the reports from Dr Cary and Dr Marnerides. In addition he had a report from Dr Stephen Leadbeatter who is a senior lecturer in forensic pathology at Cardiff University and who was appointed as the single joint expert in the care proceedings. Finally Dr Clare Lipetz, a gynaecologist with expertise in genital injury, prepared a report and gave evidence.
It follows that Dr Leadbeatter and Dr Lipetz were each working on the specimens and the photographs taken by Dr Cary at post mortem. Unhappily the quality of the photographs was, in a number of cases, suboptimal and whilst a sense of frustration is clear from the experts, it is equally clear from the written and oral evidence that those deficiencies did not impact upon the core conclusions of each of Dr Leadbeatter and Dr Lipetz, particularly Dr Lipetz.
On 10 October 2017 the experts attended an experts' meeting by telephone, a full transcript of that meeting was available for the judge. There was a substantial measure of agreement between the doctors. In summary:
i) The cause of S's death was due to pressure on her neck involving a ligature. Dr Cary felt that this was more likely to be due to someone “pulling” rather than a “hanging” mechanism.
ii) S is much older than would be expected for an accidental hanging.
iii) An accident is less likely than a deliberate act by S or a third party. Suicide by this age is not impossible but unlikely; homicide is “high on the list” and it is on this basis that the death would be investigated.
iv) There are signs microscopically and to the naked eye of genital injuries.
v) So far as anal injuries were concerned, there was a variation of view at the experts' meeting; Dr Cary believing that they were present, Dr Leadbeatter was unable to...
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