L-B (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice Rimer,Sir Stephen Sedley |
| Judgment Date | 18 July 2012 |
| Neutral Citation | [2012] EWCA Civ 984 |
| Docket Number | Case No: B4/2012/0555 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 July 2012 |
[2012] EWCA Civ 984
Lord Justice Thorpe
Lord Justice Rimer
and
Sir Stephen Sedley
Case No: B4/2012/0555
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Manchester Civil Justice Centre
Her Honour Judge Penna
DK10C00068
Royal Courts of Justice
Strand, London, WC2A 2LL
Rachel Banks (instructed by Cyril Morris Arkwright) for the Applicant
Karl Rowley (instructed by Bolton Borough Council) and Linda Sweeney (instructed by AFG Law) for the Respondents
Hearing dates: Thursday 14 June 2012
This is the appeal of the mother, brought by the Official Solicitor on her behalf, against the order of 20 th February made by Her Honour Judge Penna in the Manchester County Court. The appeal turns to some extent on the chronology of the proceedings in the court below which I will therefore set out in some detail.
Judge Penna conducted a preliminary fact finding hearing over 10 days spread between May and November 2011. The trial was fragmented by the mother's mental illness and her fluctuating ability to participate in the proceedings.
The evidence concluded on the 25 th November and the judge directed written submissions to be filed by 5 th December to enable her to give judgment on the 15 th December.
On the 15 th December the parties attended, as did a representative of Greater Manchester Police in order to pursue an application for the release of the judgment and other documentation.
The issue to be settled by judgment was whether or not it was possible to identify either of the parents as the sole perpetrator of serious injuries to their child.
The judge did not hand down a judgment, as had been anticipated, but gave an oral judgment. The recording begins after the judge has embarked on judgment. However, counsel for the Guardian took a typed note and recorded the judge's opening words to the effect that the judgment would be brief.
The judgment as transcribed runs to fifteen paragraphs. Therein, the judge stated that the father was the perpetrator, having snapped when under intolerable pressure. She exonerated the mother from responsibility.
She then said:—
"Those, in what I know are very broad terms, are the findings of the court. If any party would be assisted by the provision of detail in relation to specific points, I would by all means address those points. However, I was concerned for you to know my view in broad terms at the earliest possible date".
In response to the application of the representative of the Greater Manchester Police, the judge said:—
"It may assist you to know that this matter is back here for directions on 23 rd January and the parties, no doubt, will have reflected upon their positions and if you wish to make further application, do come on that date."
Her concluding words were to this effect:—
"What Miss Sweeney is politely not saying in terms is that you need to know that I have found the injuries were caused by the father."
It seems that when the transcript was subsequently submitted to the judge for approval she headed it:—
"PRELIMINARY OUTLINE JUDGMENT APPROVED BY THE COURT."
On the 15 th December the judge not only set up the directions hearing on 23 rd January 2012 but also a final hearing for 5 days to commence 20 th February 2012.
In consequence of the judgment of 15 th December, the local authority's provisional care plan was for the child, born on 24 th July 2010' to join her brother, born on 30 th January 2006, in the care of his maternal grandparents.
The father's counsel, by email of 16 th December, asked the judge to deal with what had not specifically been dealt with on the previous day. Those matters were identified by reference to paragraphs of counsel's written submissions filed by 5 th December: namely paragraphs 3–6, 11, 17 and 31.
The parties re-assembled on 23 rd January without the representative of the greater Manchester Police. The orders that resulted from that directions hearing simply confirm the direction set by the judgment of the 15 th December. Thus amongst the recitals there are:—
"2. The Local Authority is advocating a placement of Summer with the maternal Grandparents and in light of their current care of Thomas does not believe that such a placement needs to await the Special Guardianship Report provided for below.
"3. The Mother is supportive of a placement of Summer with the maternal Grandparents and half sibling Thomas.
4. The Father would agree to the maternal Grandparents caring for Summer on a long term basis only in the event that the court does not deem it appropriate for Summer to be placed in his care. Father may reflect further on this position following receipt of the perfected judgment.
5. The Court will utilise 3 days of the hearing commencing 20 th February 2012 in order to determine if Summer should be placed in her Grandparents care.
Amongst the paragraphs of the order I cite the following:—
1. The Court will distribute a perfected judgment at the request of the Father by 4pm on 9 th February 2012. The judgment will be deemed to have been handed down on the day of distribution.
2. The Local Authority shall file and serve an interim care plan and any updating evidence (if so advised) setting out detailed rehabilitation plan to facilitate Summer's placement in her Grandparents care and the support which will be provided to that placement by 4pm on 6 th February 2012.
7. This matter is listed for hearing on the issue of placement before Her Honour Judge Penna on 20 th February 2012 at 10.30am (Elh 3 days). All advocates shall attend at 9.30am for prior discussion. The remaining hearing dates which had been allocated to this matter during that week are hereby vacated."
The perfected judgment was not in fact distributed until the 15 th February. In that judgment the judge stated that she had "reconsidered the matter carefully" and had reached the view that "to identify a perpetrator would be to strain beyond the constraints of the evidence which I have both read and heard".
This was indeed a bombshell. There had been no warning of an impending u-turn. It undermined the draft care plan and removed the purpose and objective of the fixture on the 20 th February.
On the 20 th February counsel for the Mother did not challenge the judge's liberty to change her conclusion but only advanced an argument that the judgment of the 15 th February was deficient and requested the judge to extend the judgment to make good the asserted deficiency.
The judge's response was the subject of a brief judgment in which in her opening paragraph she apologised to family members for subjecting them to an unpleasant and difficult period. She continued:—
"You thought the position was made clear in December and there has been a change which you have all had to accommodate, which has been particularly unpleasant for some; so I'm sorry that you've had that to go through."
She explained that difficulties had been caused by her "absence from work, partly through illness, partly through leave."
The two remaining paragraphs I cite in full:—
"2. However the decision I reached had to be reached on the balance of probabilities and when I considered the matter carefully I could not exclude the mother because I was not sufficiently satisfied that no time had arisen when she had not been alone with the child and might not have caused some injury.
3. I would be reluctant to expand further than that. I hope that will, in fact, constitute the clarification which you seek and I am reluctant to take time now to produce something further in writing, given that I have already given you my decision twice, the second time changing direction, but, as I say, I do not view it as incompatible with what I said the first time; it is simply a reconsideration of the point I reached on the balance of probabilities led to my second expressed view."
The order of the 20 th February adjourned the case to the 23 rd and required the Local Authority to file by the 21 st details of its proposed assessment of the Father who, in the light of the judgment of 15 th February, was now replacing the maternal Grandparents as the preferred option.
The 23 rd February listing produced an order from which I cite the first three recorded paragraphs:—
"1. The Local Authority had, in accordance with the direction of the Court on 20/2/12, filed its proposed Social Assessment Plan in respect of the father. Having considered the same, the father, through his counsel, indicated that he was content with the Plan and was not seeking a direction for an independent social work assessment. The Guardian, through his counsel, also expressed his contentment with the Plan.
2. The Court too had carefully considered the Local Authority's Plan and it was satisfied that it was an appropriate way forward in respect of assessment of the father.
3. The mother, through her counsel sought permission to appeal the judgment of 15/2/12, which the Court granted."
The appellant's notice of the 5 th March 2012 challenges the judgment of the 15 th February rather than the order which records it, namely the order of the 20 th February. We gave leave to the appellant to amend her Notice. We also suggested to Mr Rowley, counsel for the Local Authority who drafted the order, that paragraph two should be extended to read "The Court delivered an extempore further judgment setting out its reasons for concluding that neither parent could be identified as a sole perpetrator."
In preparation for the appeal the Official Solicitor on the Mother's behalf filed a skeleton...
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