F v Cumbria County Council and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Peter Jackson |
| Judgment Date | 19 January 2016 |
| Neutral Citation | [2016] EWHC 14 (Fam) |
| Court | Family Division |
| Docket Number | Case No: CA13C000119 |
| Date | 19 January 2016 |
[2016] EWHC 14 (Fam)
The Honourable Mr Justice Peter Jackson
Case No: CA13C000119
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Karl Rowley QC and Jenny Scully (instructed by Livingstons Solicitors) for the Father
Jane Cross QC and Peter Rothery (instructed by Cumbria County Council) for the Local Authority
Gillian Irving QC (instructed by Denby Co Solicitors) for the Mother
Janet Bazley QC and Carly Henley (instructed by Bendles Solicitors) for the Children's Guardian
Hearing dates 25, 26, 30 November, 1 and 4 December 2015
Judgment date 19 January 2016
JUDGMENT (No. 7): F v Cumbria County Council and M (Fact-Finding No. 2)
Introduction
This has been a further hearing in family proceedings that concern the sisters and brothers of Poppi Worthington, who died on 12 December 2012. It follows an application by Paul Worthington, the father of Poppi and of two of the other children. In the course of the hearing, evidence about the interpretation of post-mortem findings was given by six professional witnesses, three of whom had given evidence at an earlier fact-finding hearing in March 2014. That evidence must now be put together with the evidence given at the earlier hearing so that a final conclusion can be reached.
The recent hearing and the judgment can be reported, provided the terms of the reporting restriction order made on 14 January 2015 are complied with. This prohibits the identification of the surviving children or their mother, or their homes, schools or nurseries. It does not prevent the naming of Poppi, or her father, or reporting of the circumstances of her death, provided that any report would not lead to the identification of the surviving children or their mother.
This judgment is arranged in the following way:
A Description of the proceedings
B Publicity
C Fact-finding in the Family Court
D The March 2014 findings
E The further evidence
F The submissions of the parties
G Conclusion
A DESCRIPTION OF THE PROCEEDINGS
There are three possible courts in which the circumstances of Poppi's death might have been investigated: the Coroner's Court, the Crown Court and the Family Court. I deal with each of these as they relate to this case.
The Coroner's Court
A coroner's inquest is held where a death was violent or unnatural or where the cause was sudden and unknown. The purpose of the inquest is to publicly establish the identity of the deceased, the place and time of death, and how the deceased came by her death.
In this case, Her Majesty's Former Senior Coroner for South and East Cumbria opened an investigation shortly after Poppi's death. An inquest was held on 21 October 2014. No evidence was called. The coroner indicated that he had taken account of and adopted the factual findings made by this court in March 2014, but said that he was unable to refer to the findings because of reporting restrictions imposed by this court. The part of the record that is headed "How, when and where the deceased came by his or her death" was left blank.
After disquiet was expressed about this procedure, an application for a new inquest was made by the newly appointed Senior Coroner for Cumbria under the authority of the Solicitor General, acting for the Attorney General. On 22 July 2015, the Divisional Court (Burnett LJ and Holroyde J) granted the application: [2015] EWHC 2465 (Admin), saying that:
"The effect of the procedure followed by the coroner in this case was… to take all the evidence in private. It should not be forgotten that the death of Poppi was investigated and required a coronial investigation because there is reason to suspect that her death was violent or unnatural and because of the uncertainty over the cause of death. It hardly needs stating that the public investigation of such deaths is of great importance. [It] follows that the inquest which was conducted last October was irregular because it failed to perform this central function. Furthermore, it did not result in the recording of the facts which are required by the statutory scheme…. This conclusion is sufficient for the application to succeed."
A new inquest will therefore take place after the conclusion of these proceedings. Its scope will be a matter for HM Coroner, who will consider whether the case is suitable for the application of guidance published in April 2014 by the Chief Coroner with the approval of the President of the Family Division: "Family Court Proceedings — Findings of Fact Admissibility In The Coroner's Court". This allows a coroner to introduce as evidence any findings of fact made in family proceedings, a procedure designed to avoid the need to hear the same evidence more than once, save for good reason.
The ongoing reporting restriction order should not cause difficulty for the conduct of the inquest, but this court will offer any co-operation that it can to ensure that this is so.
The Crown Court
Criminal prosecution will only occur if the Crown Prosecution Service considers that there is sufficient evidence for a realistic prospect of conviction. In order to convict, a jury must be satisfied beyond reasonable doubt of the guilt of the defendant, i.e. to the criminal standard of proof.
In this case, the parents were arrested on 27 August 2013. They were interviewed on the following day and released on bail. On 16 March 2015, Cumbria Constabulary announced that neither parent would face criminal proceedings. No one has therefore been charged with, still less convicted of, any criminal offence in relation to Poppi.
The Family Court
Care proceedings are brought by local authorities in the Family Court if it is considered that children have suffered or are at risk of suffering significant harm and that it would be in their best interests for a care order or a supervision order to be made. The court makes any necessary findings of fact on the balance of probabilities, i.e. on the civil standard of proof.
In this case, Cumbria County Council issued care proceedings in relation to the surviving children on 23 October 2013. On 8 November 2013, the children were placed with a family member and on 8 January 2014, they moved into foster care.
In March 2014, the matter came before me for a fact-finding hearing concerning Poppi's injuries and death. The local authority's case was that Poppi had been assaulted by her father at the time of her death and that she had died as a result. This allegation had to be investigated so that the court could make decisions about the future of the other children. On 28 March 2014, having taken evidence for eight days, I gave a judgment in terms that appear below. For present purposes, it is enough to record that I found that the father had perpetrated a penetrative anal assault on Poppi at or around the time of her death, but that the cause of death was medically unascertained. There was no appeal against those findings.
On 7 October 2014, after a number of welfare assessments had been carried out, I made care orders in relation to the other children. In normal circumstances, that would have marked the end of the family proceedings.
However, on 7 April 2015, the father issued the application that is now before the court in relation to his own children. Using evidence arising out of the further police inquiry, he applied to discharge the care orders and for contact orders. This application was in effect a request for the March 2014 findings to be reconsidered. The request for a further hearing was opposed by the local authority and the mother but supported by the Children's Guardian.
A central element of the father's application was the contention that the new medical evidence offered an alternative explanation for the bleeding found at the time of Poppi's death. This was in the evidence of Dr Cary, who had advised the police in December 2014 that "The finding of anal bleeding when the deceased was examined at the hospital is consistent with the presence of mucosal haemorrhage." and "Importantly this child was clearly suffering from an active viral infection which affects mucosal surfaces."
In granting the father's application, I said this:
4. At the original hearing, the main medical evidence came from three pathologists, Dr Alison Armour, Dr Stephania Bitetti and Dr Stephen Leadbeatter, and from Dr Victoria Evans, a paediatrician. Their opinions coincided in some respects and diverged in others. I substantially accepted the evidence of Dr Armour.
5. As a result of the fact-finding judgment, the police commissioned further medical enquiries. Opinions have now been given by Dr Nathaniel Cary (pathologist) and Dr Liina Kiho (histopathologist). Their views diverge in a number of respects from those of Dr Armour. An opinion has also been obtained from Dr Victoria Aziz, who is described as a forensic examiner.
…
8. In my view, the further evidence contains matters of mixed fact and opinion that deserve further consideration. In particular, it contains an alternative unifying hypothesis for the post-mortem appearances. That hypothesis was not overlooked at the earlier hearing, but it did not receive the degree of attention that is now being paid to it…
9. The circumstances in which the court will reopen established findings of fact are rare. There is a public and private interest in litigation being final. The impact of a renewal of the litigation on the family members can be significant, as is undoubtedly the case here. Further proceedings are also expensive, in this case to the public, and consume court time that is needed for other cases.
…
13. The considerations that persuade me that justice requires that a further hearing should take place are these:
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