A County Council v A Mother, A Father and X, Y and Z (by their Guardian)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ryder,MR JUSTICE RYDER |
| Judgment Date | 18 January 2005 |
| Neutral Citation | [2005] EWHC 31 (Fam) |
| Court | Family Division |
| Docket Number | Case No: WR03C00142 |
| Date | 18 January 2005 |
[2005] EWHC 31 (Fam)
Mr Justice Ryder
Case No: WR03C00142
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Miss L Meyer (instructed by A County Council)
Miss J Macur QC, Miss M Friel (instructed by Wright & McMillan Bennett) for the mother
Mr L Messling (instructed by Thursfields) for the father
Mr K Barker (instructed by Thomas Horton & Sons) for the guardian
Hearing dates: 6–29 September; 1 & 15 October 2004 and 17 January 2005
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment is being handed down in private on 18 January 2005 It consists of 38 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported in the anonymised form agreed by the parties but in no other form.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Introduction:
X, Y and Z are the children of M, their mother.
X, who was born on the 16 th November 1989, is now 15. His father is believed to have been L who both mother and F (the father of the two younger children) say died by suicide in 1990. It necessarily follows that X has never had knowledge of his birth father. As a consequence of these proceedings and in particular from August 2003 until very recently, X lived in foster care provided by a commercial company. He moved there after a 'voluntary placement' with F had broken down.
On the 15 th November 2004 and after submissions made in writing, I approved a plan to move X back into his mother's care, where he will remain unless and until there is any altered welfare assessment of his needs.
Y was born on the 25 th June 1994. He is 10 and lives with his father, F and his sister Z. Z was born on the 12 th March 1996. She is 8 and lives with her father, F and her brother, Y.
Mother and F (who I shall where appropriate refer to as father in this judgment) were married on the 25 th June 1995. Accordingly F has parental responsibility for the 2 younger children of the family.
Mother has supervised contact with each of the children, Y and Z, twice a week. Contact is available between X and F but X has chosen not to take this up.
The local authority is A County Council. Their formal applications are for care orders in relation to each of the 3 children.
Z's proceedings began by an application for an emergency protection order which was granted on the 10 th March 2003. The application for a care order followed on the 11 th March 2003. The first interim care order in respect of Z was made on the 17 th March 2003 and that order has been renewed by agreement until today.
On the 20 th August 2003 applications for care orders were made in respect of the two boys. No interim orders have been made in relation to the boys having regard to the voluntary nature of their placements.
This is a split hearing i.e. the intention of the case management undertaken by Mr Justice Kirkwood is that findings of fact should be made by this court so that any necessary assessments and reports relating to the welfare of the children can have regard to the facts as found. The welfare decisions relating to the children are to be made at a hearing in 2005.
At the outset of the proceedings F indicated his intention to care for all 3 children on a permanent basis and to apply for residence orders if appropriate. Whatever F may wish so far as X is concerned he is prepared to allow the present placement with his mother to continue for the time being. Notwithstanding this, he remains concerned about X.
M wishes to resume the care of all 3 of her children or in the alternative to exercise the least restrictive contact as may be commensurate with their welfare and placement.
M faces an outstanding criminal trial on a charge of child cruelty relating to Z which I understand is to be listed after the conclusion of this hearing.
The court's papers extend to 18 bundles including copies of all potentially relevant medical, healthcare and social care records (in total well over 5,000 pages). Unusually, almost all of the documentation is relevant and the majority of it was used extensively during the hearing.
66 witnesses were warned to attend to give oral evidence and the case was estimated at 15 working days (but by the time the papers arrived the witness list had increased and it was already known to be likely to last for 18 working days). In fact there were over 20 days of evidence and submissions. The local authority gave notice that it would if necessary rely upon the evidence of up to 124 witnesses from the statements filed.
The Background:
F says that he met M in 1991. They were married one year after the birth of Y on the 25 th June 1995. They finally separated in September 1999 and all three children remained in the care of their mother with extensive contact with and the significant involvement of F. A decree absolute of divorce was pronounced on the 11 th February 2004.
As father says in his first statement to this court made on the 30 th April 2003, although there were matters about which he disagreed with mother, for example, whether Y ever suffered from Dyspraxia or had any continuing need for glasses (he was initially prescribed them by an optician when aged 5 or 6 but effectively never used them), there were also matters about which at that early stage in these proceedings he agreed, namely:
i) 3 weeks after birth he and a friend of his, D, witnessed Z having a seizure
ii) he has seen Z having other minor fits but never a 'grand mal' fit
iii) Z suffered from 'wobbly days' that could last from a few hours to 2 to 3 days
iv) The wobbly days reduced in frequency from aged 5 to 7 i.e. between 2001 and 2003
v) Z regularly complained of pains in her hips and legs, and
vi) Z could be verbally abusive and aggressive to her parents and brothers during wobbly episodes.
Father was then of the opinion that mother had been influenced by other parents whose children had healthcare difficulties to the extent that there is a clear implication that he was then concerned that she was convinced that Z had mild learning disabilities and that she needed a wheelchair. As I shall in due course relate, the former conclusion was supported on more than one occasion in 1997 as an objective diagnosis by medical specialists. The need for the wheelchair remains in issue in these proceedings despite its professional prescription.
Over the period from 1999 to 2001 and as a result of his own care of the children father says that he came to realise that the children and in particular Z did not suffer any health problems when they were with him. As the medical history relates this period coincides with the lack of any significant history of seizures for Z (only two in 1999) and a significant improvement in all reported areas except her aggressive behaviour until a reported fall on the 14 th June 2001.
In father's first statement to the police on the 11 th March 2003 he was even more supportive of mother and more descriptive of Z's ill health. In this, his earliest statement of recollection, he gave details of the following:
i) Z's ill health all her life from a very early age
ii) A couple of apnoeic episodes
iii) Z's inability to hold herself up and her referral for suspected cerebral palsy
iv) Z's complaints that she had severe pain in the legs and hips that was ameliorated by Baclofen which is used to treat spasticity
v) Z's tendency to walk on her tip toes
vi) Wobbly days when Z could not control her limbs and when she was drowsy and appeared drunk: she would be aggressive and her eyes would bulge and turn to the sides
vii) Z's use of a wheelchair when she could not walk long distances.
He says that mother led him to believe that Dr S had undertaken a blood sugar test on Z and that the result was definitely diabetes and he says that he had witnessed mother undertaking blood sugar tests on herself, himself and Z that would be supportive of that proposition.
For reasons that I shall deal with in more detail, I have come to the conclusion that immediately after Z's proceedings began in March 2003 when the issues were as fresh and raw in his mind as they were ever going to be, F was an accurate if somewhat impressionistic reporter of his marriage and the children. He was still on balance an accurate historian one month later. Thereafter, as a consequence of being drawn into the police investigation and his own family's antagonism towards mother, his reliability and credibility were damaged.
The Precipitating Circumstance:
Z was admitted to the 'A' Royal Hospital on the 22 nd February 2003 with a history of raised blood sugar levels as monitored by mother who is herself a diagnosed diabetic. She was discharged on the 24 th February 2003 only to be re-admitted a day later.
It is alleged that between the 22 nd February 2003 and the 7 th March 2003 mother fabricated, falsified and / or tampered with urine test results and blood sugar test readings so as to suggest that and/or cause Z to be diagnosed as having diabetes.
The Issues:
The local authority make the following allegations:
Z is a child of normal medical health, in...
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