L (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall |
| Judgment Date | 07 October 2009 |
| Neutral Citation | [2009] EWCA Civ 1008 |
| Docket Number | Case No: B4/2009/1119 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 October 2009 |
[2009] EWCA Civ 1008
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Her Honour Judge Katharine Marshall Sitting in The Portsmouth County Court on 1 April 2009
Before: Lord Justice Waller
Lord Justice Ward
and
Lord Justice Wall
Case No: B4/2009/1119
Robin Belben (instructed by Eric Robinson—Solicitors) for the Appellant
Simon Miller (instructed by the Local Authority and the Guardian)– for the Respondents
Hearing date: 27th August 2009
Lord Justice Wall :
The mother of a child whom I propose to identify only by the initial R, seeks permission to appeal from a order made by Her Honour Judge Katharine Marshall sitting in the Portsmouth County Court on 1 April 2009 whereby she refused the mother's application for permission to instruct Mr. Colin Luger of an organisation called Resolutions to carry out a risk assessment relating to the mother's capacity safely to parent R.
I saw the application on paper on 12 July 2009, and directed that it be listed before a three judge court on notice to the other parties in the long vacation with the appeal to follow if permission was granted. I described the case as urgent, and invited the parties to consider carefully who needed to be represented. Pursuant to that invitation, only the mother, the local authority and the guardian appeared by counsel, the latter being jointly represented by Mr Simon Miller. The father, who is represented by the Official Solicitor (the OS) did not appear, although the OS had filed a statement supporting the mother's appeal. R's paternal grandparents, who are parties to the proceedings, and whose application for an independent assessment of themselves as carers for R was also refused by the judge on 1 April 2009, did not appear, although they put in a position statement also supporting the appeal and in which they state that, if the appeal is allowed, they would “instantly renew their own application for independent assessment by an independent social worker and within the same timescales”.
I am extremely grateful to counsel for the submissions we received, and in particular to Mr Miller who, on the joint instruction of the local authority and the guardian, made submissions which were both well-judged and realistic.
On 27 August 2009, we made the following order in this case:
(1) we granted permission to appeal;
(2) we allowed the appeal and set aside the order made by the judge on 1 April 2009;
(3) we vacated the final hearing of the care proceedings fixed by the judge for 1–4 September 2009 and directed the parties forthwith to find a date for the final hearing, that hearing to take place as soon as practicable after the hearing of the criminal trial of the mother and the father currently fixed for November 2009;
(4) we directed that the care proceedings be listed for final directions before the designated family judge for Portsmouth (the DFJ) as soon as practicable after the conclusion of the criminal proceedings;
(5) we gave permission for the mother to obtain an assessment of her capacity safely to parent the child who is the subject of the care proceedings from Resolutions, that body to report in writing to the judge prior to the final hearing of the care proceedings or as otherwise directed by the DFJ;
(6) we directed that the final hearing of the care proceedings be taken by a judge other than Her Honour Judge Marshall.
We reserved our reasons for this outcome, which we now give.
The issues raised by the case
In my judgment. this case raises a number of important issues. The first is that it is a salutary reminder of the care which judges need to take when conducting what have become known as “split hearings” in care proceedings. The second is the need for close liaison between those responsible for care and criminal proceedings arising out of the same set of serious injuries suffered by young children. Thirdly, and above all, it is a timely remainder that process in family proceedings is important, and that care and adoption proceedings, which have rightly been described as being at the extremity of the court's powers, must not only be fair, but must be seen to be fair.
The case also manifests a lamentable time-table. The subject child was born on 31 October 2007, so he is now 22 months old. On 23 April 2008, he was admitted to the Southampton General Hospital suffering from extremely serious injuries, all of which were, and have been found by the judge to be non-accidental. The local authority, Southampton City Council, began care proceedings on 7 May 2008. Yet more than 15 months later not only has there been no final hearing of the care proceedings, but the effect of our order is to build in still more delay, albeit, one hopes, delay which will be limited in its scope and which will provide the judge who takes the final hearing with substantial additional information with which to reach a conclusion.
The facts
As the case is ongoing, I propose to say only that which I think necessary for the resolution of the appeal. R's parents are unmarried, and R is their only child. His father, LL, is 21. He was assessed in the proceedings by Dr Nigel North, a consultant clinical psychologist, who reported on 12 September 2008. Dr. North's view was that:—
The principal difficulty faced by (the father) is that he is able to understand simple information but cannot retain this information when trying to weigh up decisions or answers. In addition, his problems with verbal comprehension makes it extremely difficult for him to provide considered and accurate answers. He must be considered as a vulnerable adult in terms of his cognitive problems and full scale IQ.
The consequences of Dr. North's report and subsequent evidence were; (1) that the OS was appointed to represent the father; and (2) that he did not give oral evidence before the judge. As a result, the judge was deprived of the opportunity to assess his credibility, and the mother was deprived of the opportunity to cross-examine him on R's injuries.
It is, however, plain from Dr. North's report that the father had spent many years in foster care. The evidence filed by his mother and stepfather, the paternal grandparents, was that they had always experienced him as a difficult child, and that his behaviour had been extremely difficult to manage from an early age. It was said that from the age of five or six he would kick other children and threaten people with knives, and that, generally, they could not cope with him. He had first been accommodated when he was about 7.
The mother, CR, is 23. She herself had not previously come to the notice of the local authority, although her brother had spent some time in care. She accepts that she has abused alcohol in the past, although there is no evidence that she is currently doing so. Both parents also admit occasional cannabis use.
The parents met towards the end of 2006, and R was conceived in early 2007. During the relevant period, the parents and R lived together in Southampton, but separated in mid-September 2008, when the mother left the father. There is no suggestion that they remain a couple or are intending to reconcile.
The event which brought about the institution of the care proceedings was R's admission to hospital on 23 April 2008. For present purposes it is, I think, sufficient to reproduce in its entirely the document which the local authority presented to the judge for the finding of fact hearing. This reads as follows: —
The Local Authority contend that R has suffered significant ill treatment within the meaning of Section 31 (9) of the Children Act in the care of his parents and has suffered significant impairment of his proper physical and emotional development as defined under Section 31 (9) of The Children Act.
Findings sought on behalf of the Local Authority
(a) Injuries sustained by R
The Court is asked firstly to make findings that R suffered the following injuries whilst in the care of his parents.
On the 24 th April 2008 R was observed to have bruising to his chest, right side of his face, left side of his face, bruise behind the left ear lobe, red mark on the right of his neck and bruising on the right thigh
CT and MRI scans of R's head showed bilateral and subdural effusions,
An Ophthalmic review showed evidence of bilateral pre-retinal haemorrhages
(b) Circumstances and causation of injuries
The Local Authority would invite the Court to consider the explanations reached and to invite the Court to find that the injuries were most likely to have been non-accidental involving unreasonable use of force in relation to a child of this age.
(c) Bruising
In relation to the bruising on the right side of R's face mother's explanation is that R himself caused this swinging a rattle around in his hand and banging his face.
In relation to the bruise on the right cheek mother explained to the Hospital that R had caused this to himself by rolling over and that he does not have good head control. It is mother's contention that his head flopped down whilst he was on his stomach causing him to hit his left cheek and left ear which had left a bruise. (see paragraph 16 of mother's statement). It is the contention of the Local Authority that it is not credible that R was responsible for the infliction of these injuries. If they were caused in the way suggested it is highly suggestive of lack of appropriate supervision.
In relation to the bruise on the left hand side of R's ribs under his nipple it is mother's contention...
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