Kent County Council, Re B (A Child) v the Mother and Others
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Munby |
| Judgment Date | 19 March 2004 |
| Neutral Citation | [2004] EWHC 411 (Fam) |
| Docket Number | Case No: CT01C00052 |
| Court | Family Division |
| Date | 19 March 2004 |
[2004] EWHC 411 (Fam)
The Honourable Mr Justice Munby
Case No: CT01C00052
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
PRINCIPAL REGISTRY
(In Public)
Royal Courts of Justice
Strand, London, WC2A 2LL
Charles Howard QC and Sarah O'Connor (instructed by the County Secretary) for the applicant (local authority)
Stephen Cobb QC (instructed by Harman & Harman) for the first respondent (mother)
Nicholas Baldock (instructed by Kingsfords) for the third respondent (child)
Joanna Dodson QC (instructed by Christian Khan) for Ms Sarah Harman
Angus Moon (instructed by Radcliffes Le Brasseur) for Dr Y
Adam Wolanski (instructed by the BBC Litigation Department) for the British Broadcasting Corporation The second respondent (father) was neither present nor represented
Hearing date : 25 February 2004
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.
WARNING
This judgment is being handed down in public on the strict understanding that the anonymity of the children and the adult members of their family must be strictly preserved. There is no restriction on the identification of any person who is named in the judgment but attention is drawn to the terms of the injunction set out in paragraph [154] of the judgment.
Mr Justice Munby:
A mother who claims to be the victim of a miscarriage of justice in care proceedings brought by a local authority seeks to debate her case in public. The question is whether the law permits her to do so. The issue is one of great importance, which is why I am giving this judgment in public.
The setting
On 29 January 2003 the Criminal Division of the Court of Appeal (Kay LJ, Holland and Hallett JJ) quashed the conviction of Sally Clark: R v Sally Clark [2003] EWCA Crim 1020. She had been convicted at Chester Crown Court on 9 November 1999 of the murder of her two sons by, in the one case, smothering and, in the other, suffocation. Amongst the experts called at her trial by the Crown was Professor Sir Roy Meadow. An earlier appeal had been dismissed by the Court of Appeal (Henry LJ, Bracewell and Richards JJ) on 2 October 2000: R v Sally Clark [2000] EWCA Crim 54.
On 11 June 2003 Trupti Patel was acquitted by a jury at Reading Crown Court of the murder of her three children by suffocation. Amongst the experts called at her trial by the Crown was Sir Roy Meadow.
On 10 December 2003 the Criminal Division of the Court of Appeal (Judge LJ, Rafferty and Pitchers JJ) quashed the conviction of Angela Cannings: R v Angela Cannings [2004] EWCA Crim 1, [2004] 1 FCR 193. She had been convicted at Winchester Crown Court on 16 April 2002 of the murder of her two sons by smothering. Amongst the experts called at her trial by the Crown was Sir Roy Meadow.
These high profile cases – for each has understandably generated much media attention – have given rise to what is now a very anxious public debate. That debate is no longer confined to the possibility of further miscarriages of justice in the criminal justice system but extends also to the possibility of similar miscarriages of justice in the family justice system. The debate relates in particular to what is commonly called Munchausen's Syndrome by Proxy, a condition first identified and so described by Sir Roy Meadow. Much of the public's concern, whether justified or not, has focussed on Sir Roy's research work and the expert evidence he has given down the years in many criminal and care cases.
On 19 January 2004 the Court of Appeal handed down judgment explaining why it had quashed Angela Cannings's conviction. In the course of giving the judgment of the Court, Judge LJ at para [22] highlighted what he said was a "problem which can arise in this case, and cases like Sally Clark and Trupti Patel":
"We have read bundles of reports from numerous experts of great distinction in this field, together with transcripts of their evidence. If we have derived an overwhelming and abiding impression from studying this material, it is that a great deal about death in infancy, and its causes, remains as yet unknown and undiscovered. That impression is confirmed by counsel on both sides. Much work by dedicated men and women is devoted to this problem. No doubt one urgent objective is to reduce to an irreducible minimum the tragic waste of life and consequent life-scarring grief suffered by parents. In the process however much will also be learned about those deaths which are not natural, and are indeed the consequence of harmful parental activity. We cannot avoid the thought that some of the honest views expressed with reasonable confidence in the present case (on both sides of the argument) will have to be revised in years to come, when the fruits of continuing medical research, both here and internationally, become available. What may be unexplained today may be perfectly well understood tomorrow. Until then, any tendency to dogmatise should be met with an answering challenge."
He added this at para [178]:
"With unexplained infant deaths, however, as this judgment has demonstrated, in many important respects we are still at the frontiers of knowledge. Necessarily, further research is needed, and fortunately, thanks to the dedication of the medical profession, it is continuing. All this suggests that, for the time being, where a full investigation into two or more sudden unexplained infant deaths in the same family is followed by a serious disagreement between reputable experts about the cause of death, and a body of such expert opinion concludes that natural causes, whether explained or unexplained, cannot be excluded as a reasonable (and not a fanciful) possibility, the prosecution of a parent or parents for murder should not be started, or continued, unless there is additional cogent evidence, extraneous to the expert evidence, … which tends to support the conclusion that the infant, or where there is more than one death, one of the infants, was deliberately harmed. In cases like the present, if the outcome of the trial depends exclusively or almost exclusively on a serious disagreement between distinguished and reputable experts, it will often be unwise, and therefore unsafe, to proceed."
The previous weekend, on 18 January 2004, the Sunday Telegraph newspaper had published as its front-page lead story an interview with the Rt Hon Margaret Hodge MBE MP, the Minister of State for Children in the Department for Education and Skills ("DfES"). The story was headlined "'We can't reunite thousands of mothers with children wrongly taken from them' – Minister admits that she cannot rectify mistakes caused by discredited expert". The story asserted that:
"Ministers are to review as many as 5,000 civil cases of families affected over the past 15 years by Prof Meadow's now discredited theory of Munchausen Syndrome By Proxy."
It continued:
"Mrs Hodge is likely to ask local authorities to search through their records to find all family law cases involving Meadow. … Another option being considered by Mrs Hodge is to appoint a judge to trawl through the records of each authority to identify possible miscarriages of justice, but this would prove costly."
The Minister was quoted as saying:
"The Government is not running away from this issue. I hope the families understand that these are really, really difficult decisions we have to take."
On 20 January 2004, the day after the Court of Appeal had given judgment in the Angela Cannings case, statements were made in the House of Commons by the Solicitor-General, the Rt Hon Harriet Harman QC MP, and, a little later, in the House of Lords by the Attorney-General, the Rt Hon Lord Goldsmith QC. Those statements dealt with the possible implications of the Cannings judgment for the criminal justice system but did not address any implications there might be for the family justice system. However, in answer to a supplementary question, the Solicitor-General said this (Official Report, Commons, Sixth Series, Vol 416, col 1218):
"We will ensure not only that injustices in the criminal justice system, but that any potential injustices in care proceedings are identified and acted on.
We should recognise that for women who have lost a child and then had another child taken away, prison is no penalty compared with the terrible suffering that they have endured. As we deal straight away with those in prison and those involved in criminal processes, we must bear in mind the absolute and utmost gravity of the situation facing those whose injustice is at the hands not of the criminal justice system, but of the family justice system."
After a Member of Parliament had pointed out that she had not said whether there would be a review of family court cases as there would be for criminal cases, and asked "Will she confirm that such a review is either happening or is about to happen?", the Solicitor-General responded (col 1221):
"The process of how to go about a review in family cases is now being considered. The judgment that I have quoted makes clear what is at issue, but the process of identifying cases – and the machinery that should be used to remedy miscarriages of justice – is not straightforward.
Neither the Government nor the family division of the Court of Appeal, nor anyone else, are holding back in their attempts to ensure that any injustice is remedied. That is our absolute focus, but we have to determine what the best procedures are, and what the best machinery is. That is by no means straightforward, but I do not rule out any of...
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