G and B (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall,Lord Justice Moore-Bick,Lord Justice Thorpe |
| Judgment Date | 21 January 2009 |
| Neutral Citation | [2009] EWCA Civ 10 |
| Docket Number | Case No: B4/2008/2607 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 January 2009 |
[2009] EWCA Civ 10
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HH JUDGE CARR QC on 16th October 2008
SHEFFIELD COUNTY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Before: Lord Justice Thorpe
Lord Justice Wall and
Lord Justice Moore-Bick
Case No: B4/2008/2607
Clive Heaton QC and Farah Bhatty (junior) (instructed by Messrs Leviten, Thompson—Solicitors) for the Appellant
Anthony Hayden QC and Kerry Broughton (Junior) (instructed by Messrs Taylor & Emmet—Solicitors)) for the 1st Respondent
Lucy Theis QC and Mr John Jackson (Junior) (instructed by Patrick Chisholm—Solicitors) for the 2 nd Respondents
R Uppal (instructed by Messrs Parker Bird Gardner – Solicitors) Advocate for the 3 rd Respondents
Lindy Armitage (instructed by Messrs Atteys – Solicitors) for the 4 th Respondents
Hearing date: 17th December 2008
Lord Justice Wall:
Introduction
1. After we had heard this case on 17 December 2008, we announced our decision, but reserved our reasons. We granted permission to appeal; we allowed the appeal to the extent of replacing the schedule of the judge's recorded findings of fact with an amended schedule in terms which the parties had been able to agree; we directed that the judge's judgment should henceforth be read in the light of the judgments to be given by this court; and we directed that the welfare limb of the proceedings, due to be heard on 23 February 2009, should be taken by a different judge to be allocated by the Liaison Judge for the North Eastern Circuit.
2. This judgment now sets out my reasons for reaching the decisions outlined above. As the case is ongoing, I propose to say only that which is necessary for the resolution of the appeal. Nothing in what follows should be taken as expressing any view about the ultimate outcome of the case.
The facts
3. The father of a small child, supported by the mother of that child, and of an older child sought permission to appeal against findings of fact made by HH Judge Carr QC in care proceedings under Part IV of the Children Act 1989 (the 1989 Act) relating to the two children and currently pending in the Sheffield County Court.
4. The judge had been conducting what has become known as the first limb of a split hearing of care proceedings, in which the local authority seeks findings of fact sufficient to satisfy the so called threshold criteria under section 31 of the 1989 Act. The findings which the parents sought to impugn in this court relate to a third child born to the parents, whom I will call AB. AB was born on 5 January 2007 and died on 7 August 2007 at the age of 7 months. His death, it should be said, was by no means the sole basis upon which the local authority sought to satisfy the court that the threshold criteria under section 31 of the 1989 Act had been satisfied.
5. In accordance with the current practice, the local authority had filed a schedule of the findings which it invited the judge to make. That schedule began, under the heading GENERAL FINDINGS with the following five essentially factual and uncontroversial paragraphs:—
1.1 AB died on the 7 th August 2007 aged 7 months
1.2 AB died from a hypoxic-ischaemic encephalopathy of uncertain aetiology [reference given] report from Dr W forensic pathology – subnormal level of oxygen restricting AB's blood supply to the brain the cause of which was unknown.
1.3 Following a skeletal survey AB was found to have suffered earlier injuries
1.3.1 AB suffered from a fracture to the left ulna and radius (the left forearm) consistent with a fracture aged in the region of 20–40 days usually associated with non- accidental injury (references given)
1.3.2 Injuries to the 4 th and 5 th and 6 th ribs consistent with trauma (reference) and consistent with a compression injury (reference)
6. In the second section of the document, under the heading THRESHOLD FINDINGS, there were only limited references to AB. These were as follows:
2.2. A contributory factor in the death of AB were the neglectful and harmful parenting practices exercised by (the mother) and (the father) and
2.3 the parents have failed to give a clear and consistent account of the events leading up to AB's hospitalisation (reference) to an extent that the circumstances up to AB's admission to hospital are far from clear showing a failure on behalf of the couple to cooperate with professionals.
7. The Schedule goes on to allege that the injuries identified in paragraphs 1.3.1 and 1.3.2. above were caused whilst AB was in the parents' care and that neither could be excluded from having caused the injury.
8. The medical evidence relating to AB called by the local authority at the hearing before Judge Carr came from one of the treating paediatricians and a forensic pathologist. The latter had carried out a post mortem on AB, and had reached the conclusion which I have already recorded in sub-paragraph 1.2 of paragraph 5 above. The pathologist explained that conclusion further in his evidence in chief:—
If I could just explain that, encephalopathy is an abnormal functioning of the brain as a result of either – of many different causes. Hypoxic ischemic encephalopathy refers to abnormal functioning when the brain is starved of oxygen and / or blood supply such that the normal function of the brain is interrupted. In this particular case, there was clear documented clinical evidence of hypoxic ischemic encephalopathy. However, our post mortem examination failed to find a definitive cause of that hypoxic ischemic encephalophy, hence the formulation of the cause of death.
9. Although Dr W was cross-examined about the possibility of AB having been smothered, he maintained his position that the cause of death was unknown. “We don't know. The cause of the hypoxic ischemic encephalopathy has not been determined, after extensive investigation.”
10. Once the advocates had concluded their examination of the pathologist, the judge was asked if she had any questions. She immediately asked: “Could this be, on balance, an unlawful killing? The pathologist's response was that he had “no pathological findings to support that contention”. Pressed by the judge, he said it was possible. But once again, he could not confirm it. The judge then put to him: “It is beyond possible, it is probable, I suggest to you. In the light of what you now know”. The pathologist replied “How probable, again, I can't say how probable”. The judge replied that that was a matter for her, and that she was going to record it is “probable”.
11. This exchange brought junior counsel for the father to her feet. She asked the pathologist to confirm his last answer, and he stated: “My view has to be formulated on pathological evidence, and there's no pathological evidence to support it”. The judge then commented “I'm not altering my note”.
12. Counsel for the father then applied for an adjournment so that evidence could be assembled...
To continue reading
Request your trial
-
Z v A Local Authority
...to the case put by the other side. In support of this argument, Mr Sharp cited, amongst other cases, Re G and B (Fact-Finding Hearing) [2009] EWCA Civ 10, [2009] 1 FLR 1145 and Re A (No.2) (Children: Findings of Fact) [2019] EWCA Civ 1947 [2021] 1 FLR 755, considered 54 Mr Sharp submitte......
-
Re W (A Child)
...Civ 228, CACo-operative Group (CWS) Ltd v International Computers Ltd [2003] EWCA Civ 1955, CAG and B (Fact-Finding Hearing), In re [2009] EWCA Civ 10; [2009] 1 FLR 1145, CAGrosvenor v Governing Body of Aylesford School UKEAT/1/08 (unreported) 3 October 2008, EATLloyd v McMahon [1987] AC 62......
-
L (A Child)
...exceptions to the rule. One of them, exemplified both in this case and in Re G and B (children) (fact-finding hearing) [ EWCA Civ 10, [2009] 1 FLR 1145 ( Re G and B) is where one of the parties, for good reason, has lost confidence in the judge. In Re G and B the judge had found as a fact ......
-
Re D (Care Proceedings: Preliminary Hearing)
...There are, of course, exceptions to it. One such exception, relating to care proceedings, is the decision of this court in Re G and B (Children) [2009] EWCA Civ 10 ( Re G and B), in which a judge had made findings of fact, not sought by the local authority, that a father had intentionally s......
-
Expert Evidence, Judicial Reasoning, and the Family Courts Information Pilot
...expert evidence) [2001] 2 FCR 44; Re B (A Minor)(rejection of expert evidence) [1996] 3 FCR 272, at 280; Re G (Fact-FindingHearing) [2009] EWCA Civ 10 [17]; Re MW (a child) (Care order: expert evidence)[2010] EWCA Civ 12, [39].129 [2010] EWCC 38 and 45; [2010] EWMC 66 and 80.130 A. Bainham,......
-
Judicial assessment of expert evidence
...elements of the factual evidence will assist the court in forming its views on the expert testimony and vice 8AB v. BG and Others [2009] E.W.C.A. Civ. 10. This proposition also has an equally obvious corollary. There must be material upon which the judge in question can safely found his dis......