I (Children)

JurisdictionEngland & Wales
JudgeLady Justice King,Lord Justice Singh,Lord Justice Bean
Judgment Date24 May 2019
Neutral Citation[2019] EWCA Civ 898
Docket NumberCase No: B4/2019/0658
CourtCourt of Appeal (Civil Division)
Date24 May 2019
Between:
I (Children)
Appellant
and
Respondent

[2019] EWCA Civ 898

Before:

Lord Justice Bean

Lady Justice King

and

Lord Justice Singh

Case No: B4/2019/0658

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM LANCASTER COUNTY COURT AND FAMILY COURT

HHJ BANCROFT

PR18C00277

Royal Courts of Justice

Strand, London, WC2A 2LL

Rex Howling QC and Margaret Parr (instructed by Msb Solicitors) for the Appellant

Samantha Jane Bowcock and Stephanie Perplus (instructed by Legal and Democratic Services) for the Local Authority 1 st Respondent

Hearing date: 21 st May 2019

Approved Judgment

Lady Justice King
1

On 22 February 2019, following a finding of fact hearing, Her Honour Judge Bancroft handed down her judgment. The case was of the utmost seriousness, centring around two unexplained skull fractures sustained by a baby (“A”), still only 15 weeks old, when taken to hospital with the second of the two fractures.

2

The Local Authority had, by their threshold document, sought specific findings, namely that each of the injuries were inflicted by LH, the baby's mother (“the mother”). At the centre of the appeal is the judge's finding in relation to the second, right-hand side, fracture. The judge held:

“133. In my judgment all this set the context for a sudden loss of control resulting in an injury to A inflicted or caused by an anxious, stressed mother. Alternatively, and there is some evidence for this from M herself in her police interview and in the children's reported conversations in the car [that] she left A unattended and was downstairs at the time.”

3

No additional light is thrown upon this finding (paragraph 133) by reference to the judge's findings in respect of the earlier left-sided fracture. So far as that fracture is concerned, the judge found (at paragraph 136) that the left-sided fracture was an older injury, was not a birth injury and which, on the balance of probabilities, occurred whilst A was in the mother's care. The judge said that, “after much anxious consideration I have concluded that beyond that I will be entering into the realms of speculation as to what happened”.

4

In the light of her findings at paragraph 133 in relation to the right-sided fracture, the judge felt it unnecessary to go further in respect of the left-hand side fracture in order either to satisfy the threshold criteria, or to assist in any further risk and welfare assessments.

5

Those representing the mother filed six grounds of appeal. Permission to appeal was refused in relation to a number of those grounds, and two further grounds have not been pursued by the mother. The court was left therefore with one ground, Ground 1(iv), which says;

“In reaching the conclusion that there are two potential explanations for the injury the learned judge has failed to make a determination of facts.”

6

This ground of appeal relates directly to paragraph 133. The mother, the Local Authority and the Guardian are all agreed that the appeal in relation to that ground, notwithstanding some helpful clarification by the judge, must be allowed by consent. The issue for this Court has been to consider the proper order to make upon the appeal being allowed, consideration of which has necessarily involved an examination of events following the conclusion of the trial and the handing down of the judgment.

The Parties' Positions

7

Mr Howling QC, on behalf of the mother, submits that the matter can be dealt with quite simply. There is, he says, a clear way to read into the judgment a phrase which was, he says, omitted. He proposes that paragraph 133 should be amended to add the following words at the end of the paragraph:

“Consequently, I am unable to reach a clear finding as to what caused the right-hand fracture and it remains unexplained.”

8

His proposed wording, he accepts, would have the effect of any risk assessment of the mother having to proceed on the basis that each of the two fractures sustained by her baby whilst in her sole care are “unexplained”.

9

Miss Bowcock, on behalf of the Local Authority, supported by the Children's Guardian, submits that, upon the appeal being allowed, there should be a re-hearing before a different judge to determine how A's right-sided injuries were caused. Determination of that issue is, she submits, essential in order to lead to a fair and comprehensive assessment of the mother as a future carer for the children.

Events Surrounding the Handing Down of the Judgment

10

In order to understand the events surrounding the handing down of the judgment, it is also necessary to understand the way the mother had put and now puts, her case. Throughout the care proceedings, and at trial, the mother's case had been that, on 27 May 2018, A had fallen off the bed whilst she, the mother, was in the room. On 30 May 2018, the mother took A to hospital with a swelling to the right-side of his head and subsequent investigations identified the two skull fractures. The Court had before it a statement from a Ms Melissa Emmerson, a social worker, who gave oral evidence. Her evidence described a conversation which took place between A's sister and half-brother, B and C, when only a matter of days after A's admission to hospital, she (the social worker) was taking them to school following contact,. B, the younger child, had described her mother as being in the room at the time of the incident when A sustained his second injury. C, her elder brother, said that he had not seen him fall and their mother had actually been downstairs when it had happened. The social workers evidence was that C had said that B was to “stop lying”.

11

This piece of evidence, it would seem, is what the judge referred to in paragraph 133 when she spoke of “the children's reported conversation in the car”.

12

It is accepted that nowhere in the judge's judgment does she set out, or analyse, either this evidence or indeed the evidence to which she refers in paragraph 133 as being “from M herself in her police interview”.

13

Subsequently, following the conclusion of the trial on 11 February 2019, C apparently told an adult at school that he himself had been in the room when A fell and that he feared that he had hurt A. This Court has not seen the statement in relation to this which is apparently in existence. On 20 February 2019, the mother filed an unsolicited statement in which she completely changed the account which she had given hitherto. In that statement, the mother said that she had been lying when she had said that A had fallen off the bed in her presence and that the truth was that, on 27 May 2018, she had left A and C alone in the bedroom while she went downstairs to make A's bottle. Whilst down there, the statement says, she heard a “loud bang” and ran upstairs to the rescue.

14

Turning then to how these developments fit with the care proceedings which were ongoing; the judge had heard evidence between 7 and 10 January 2018, written submissions being filed at a later date. On 14 February, a draft judgment was sent out in the usual way to those representing the various parties. At that stage, the court is told, paragraph 133 (then paragraph 132) read somewhat differently:

“132. In my judgment all this set the context for a sudden loss of control resulting in an injury to A inflicted or caused by an anxious, stressed mother, such as an intemperate throw or a drop rather than a cruelly inflicted injury. Alternatively, and there is some evidence for this from M herself in her police interview and in the children's reported conversation in the car, [that] she left A unattended and was downstairs at the time.”

(My emphasis added)

15

In an email dated 15 February 2019 Mr Howling dealt with some minor typographical errors and an error of attribution before raising what he called “the following additional points”:-

“2. With regard to paragraph 128 and 129 can you please explain in greater detail why it is unnecessary to engage with mechanism when it is for the Local Authority to prove how the head injury was sustained and mechanism is a fundamental aspect of causation. The only case put to mother by the LA was an ill-tempered throwing to the ground. This point is inconsistent with the conclusion which you have reached in paragraph 128. [Now paragraph 133].

3. With regard to paragraph 132 can you please explain how you reached the conclusion that there may have been ‘an intemperate throw’ when this was specifically discounted by Dr Croft in paragraphs 59 and 60 of his report at E279. These points were not put to him in cross-examination. Again, the mechanism of a drop was never put to mother for a plausible explanation for the injury. It is fundamental and key to any care case that the local authority needs to put its alleged case to the perpetrators. Can you please also explain, therefore, how based on the medical evidence, you reached the alternative conclusion about a drop, particularly as Peter Richards was very clear at E263 that both injuries remained unexplained.

4. With regard to paragraph 133 [now paragraph 134], can you please explain how your conclusion that “[mother] is not being frank, honest and open with the court” establishes the local authority's case? As currently drafted, the paragraph seems to suggest that there has been a reversal of the burden of proof.

As matters currently stand I am instructed to seek leave to appeal on Friday.

As far as the additional evidence, I need to take instructions.”

16

This request for “clarification” was followed, on 20 February 2019, by the statement of the mother already referred to which, it would seem, the judge received on the morning of 22 February before she handed down her judgment.

17

At a hearing on 22 February 2019, which had been designed to hand down the judgment and to make consequential orders, Mr Howling made an application to the judge that the judgment should not be handed down so that...

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