Y & K (Children)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,LADY JUSTICE HALE |
| Judgment Date | 07 April 2003 |
| Neutral Citation | [2003] EWCA Civ 669 |
| Docket Number | B1/2003/0522 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 April 2003 |
[2003] EWCA Civ 669
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
NEWCASTLE-UPON-TYNE COUNTY COURT
(HIS HONOUR JUDGE WOOD)
lord Justice Thorpe
Lady Justice Hale
B1/2003/0522
MR N STONOR (instructed by Goldwaters Solicitors, Newcastle-upon-Tyne NE1 3DE and Newcastle-upon-Tyne City Council, Head of Legal Services, Jesmond) appeared on behalf of the Third and Fourth Respondents and the City Council.
MISS DODSON QC (instructed by David Gray of Newcastle-upon-Tyne, NE1 5XU) appeared on behalf of the First Respondent.
The Second Respondent appeared in person.
(Approved by the Crown)
Monday, 7 April 2003
This appeal is all about a little girl named T who was born on 7 April 1998. At that stage her mother, KY, had yet to meet AK, so at their date of meeting in the spring of 1999 KY brought with her her one year old baby. Mr K was previously married and had two children by his marriage, but he had separated from his wife shortly before the parties met. Shortly after their meeting he moved in to live with KY and T. It seems that T suffered from vulva vaginitis for which she was referred to a local paediatrician, Dr Bryce, on 20 June 1999. It seems that she was thoroughly upset during her examination at the hospital but she revealed normal genitalia with intact hymen.
The child of the parties, C, was born on 22 May 2000, but she plays no significant role in the succeeding story.
The parties moved to Newcastle from Scotland when the father secured employment at Newcastle University. In December 2000 T's maternal aunt, Mrs Russell, reported to health visitors and Social Services Department in Newcastle things which she said she had heard T say which caused her anxiety and led her to believe that T's stepfather had been interfering with her genitalia. That resulted in a paediatric examination at the Royal Victoria Infirmary in Newcastle carried out by Dr San Lazaro and her specialist registrar, Dr Drummond. Essentially Dr Drummond was conducting a medical and forensic examination under the supervision of Dr San Lazaro as the very experienced consultant. The medical examination led those two doctors to the conclusion that T had suffered a traumatic genital injury. Shortly thereafter the parents separated, the mother and the children moving to her father's home in Scotland. Almost immediately there was an incident in which T became upset and told her mother that Mr K had hurt her in the bathroom in the genital area. Proceedings in the criminal field were presaged by a charge of indecent assault on 8 February 2001. However those criminal proceedings were discontinued some six weeks later and, accordingly, immediately thereafter supervised contact between the father and the children resumed and the parents renewed their cohabitation. That state of affairs was considered by a case conference in June 2001, at which it was made plain that if the parents continued to cohabit an emergency protection order would be sought. The parents' response was that they would not separate. Proceedings under the Children Act 1989 were immediately commenced with a large number of interim applications and orders made initially in the family proceedings court, and then, at a later stage after transfer, in the county court in Newcastle. During the development of these proceedings the parents, not unnaturally, wished there to be a further medical appraisal of the investigation and findings carried out by Dr Drummond and Dr San Lazaro. Accordingly, in November 2001 leave was given for the parents to release the papers to Dr Evans for an opinion. On 14 February 2002, however, before her opinion was delivered, a childminder, Mrs Jean Thackray, reported that T had again said words indicating that she had been interfered with by her stepfather. There was a further referral to the Royal Victoria Infirmary and on this occasion Dr San Lazaro supervised the examination of another specialist registrar, Dr Rollison. Again the paediatric opinion was that what was observed at that examination indicated a further traumatic injury since the first examination.
The development of the case thereafter was much complicated by the termination of libel proceedings that had been brought against the local authority by claimants who asserted that they were the victims of great injustice that originated in paediatrician investigations and opinions offered by Dr San Lazaro. The case culminated with the judgment of Eady J in Lilley and Reed v Newcastle City Council & Others [2002] EWHC 1600 (QB). Eady J's conclusions were extremely damaging to Dr San Lazaro. He criticised her as a consultant paediatrician and he criticised her as a witness within the proceedings.
However, Dr Evans' report had been delivered on 8 May and her report, no doubt to the disappointment of the parents, broadly corroborated the opinions formed by Dr San Lazaro and her specialist registrar, and indeed in a number of instances were more strongly expressed.
The local authority obviously had to consider the impact of Eady J's findings on the further progress of this and perhaps other cases, and accordingly at a directions hearing before Judge Moir in August they signalled their intention not to rely upon the evidence of Dr San Lazaro at the imminent preliminary fact-finding hearing. In the following month the same judge gave leave to the instruction of Dr Sunderland as a second source of expert opinion. Understandably the parents were not happy with Dr Evans' contribution and urged the instruction of a second expert. It was agreed between the parties that as a matter of mechanics Dr Sunderland would be instructed by the guardian ad litem. There was an expert's meeting between Dr Sunderland and Dr Evans in November, but it proved abortive since they were not supplied with identical material. Equally, there were a number of adjournments of the fixture for the causation hearing and it was possible for Dr Sunderland and Dr Evans to conduct a telephone discussion in January 2003 as a result of which they were in general agreement before the first day of the hearing before His Honour Judge Wood on 21 January. As a matter of record the judge heard evidence over the course some five days, at the end of which he invited the parents to submit that the local authority had not presented a case that required any answer. Submissions in support and opposition were made on the following day and judgment was given on 21 February.
Notices of application for permission to appeal the judge's conclusion that the local authority had failed to establish any sort of case were received in the instance of the guardian ad litem on 11 March and in the case of the local authority on 13 March. A paper order was made granting permission on both applications on 26 March for hearing today, 7 April. The challenge in itself called for expedition and it was intended that the parties should have at least a clear week in which to prepare their cases. Unfortunately there was some delay on the part of the Civil Appeals Office in notifying the parties and there is no doubt that both the respondents, and to some extent the appellants, have been put under pressure to be ready for today's hearing. Fortunately Mr Stonor was able to be here to advocate his case and by agreement he also represents the guardian ad litem. Fortunately the mother's solicitor, Mrs Routeledge, who appeared for her in the court below, was able to get public funding for this hearing and was able to secure the services of Miss Dodson QC, who has argued the mother's case fully and persuasively. Mr K has not been so fortunate. His application for public funding, although succeeding on the merits, failed on a means test and accordingly he has had to represent himself today. As I endeavoured to point out I do not regard this as necessarily prejudicial. Essentially both appellants share the same ground, as do both respondents. In such a situation it is usually sufficient if one advocate represents each side of the appeal, and just as Mr Stonor has put the case for both the appellants, so essentially has Miss Dodson put the case for both respondents.
I turn then to Mr Stonor's submissions. He essentially presents them in three distinct compartments. First, he criticises the judge generally for, as he would characterise it, treating the split hearing inquiry as something akin to a criminal process in which the prosecution were held to have failed to make a prima facie case. His second and more specific criticism of the judge is in his assessment and rejection of the expert medical evidence. His third criticism is of the judge's rejection of the evidence as to T's several complaints.
I take those three in turn. Both counsel have referred us to Re B [1994] 2 FLR 1, and particularly to the judgment of Butler-Sloss LJ in which she gave guidance as to the procedure to be adopted in Children Act proceedings. There is no doubt at all that the guidance that she there offered applies to split trials as well as to any other sort of hearing. But it is equally clear that Butler-Sloss LJ did not have split trials in mind when she offered her broad guide. All that Re B establishes is the breadth of the spectrum of permissible procedures and the generous extent of the judge's discretion in deciding how to proceed in individual cases.
But the purpose of a preliminary hearing is to determine what has happened historically and to provide a firm foundation to all parties to prepare their cases for the disposal hearing, the purpose of which is to determine the...
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