A Local Authority v The Mother
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lieven |
| Judgment Date | 01 June 2020 |
| Neutral Citation | [2020] EWHC 1573 (Fam) |
| Date | 01 June 2020 |
| Court | Family Division |
| Docket Number | Case No: ZC19C00351 |
[2020] EWHC 1573 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lieven
Case No: ZC19C00351
and
and
Mr Nick Goodwin QC and Ms Gayle Bisbey (instructed by A Local Authority) for the Applicant
Ms Sam King QC and Mr Julian Hayes (instructed by Berris Law) for the First Respondent
Mr John Tughan QC and Mr Greg Davies (instructed by HarrisTemperley LLP) for the Second Respondent
Mr Alex Verdan QC and Ms Sally Bradley (instructed by Eskinazi & Co) for the Third Respondent
Hearing dates: 15 April – 15 May 2020 —
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.
This judgment concerns a fact finding hearing in care proceedings relating to SX, a four year old boy who is presently in foster care under an Interim Care Order. Proceedings were issued following the unexplained death of SX's younger sister, AX, in April 2019 aged two months. At post mortem it was discovered that AX had suffered multiple unexplained fractures.
The Local Authority were represented by Mr Goodwin QC and Ms Bisbey; the Mother by Ms King QC and Mr Hayes; the Father by Mr Tughan QC and Mr Davies; and the Guardian by Mr Verdan QC and Ms Bradley. The fact finding hearing lasted in total for 19 days, although for many of those days the evidence did not take up the whole day.
The hearing was held remotely using the Zoom platform. I have issued a judgment setting out my reasons for proceeding with hearing the lay evidence remotely, see A Local Authority v Mother and Father and SX [2020] EWHC 1086 (Fam).
All the witnesses gave their evidence remotely through computers from wherever they were staying in lockdown. When it came to the Father giving evidence there were significant difficulties with his attendance during parts of the hearing. I will not set out the detail but on the morning of the second day of his evidence he said that his Wi-Fi was not working and that significantly delayed the morning session. In the afternoon he said that he had a flood in his kitchen and could not attend the hearing, although he ultimately did do so. Whatever the truth of these events, I took the decision that to ensure that the hearing could be completed he should complete his evidence from counsel's chambers. I ordered him to attend those chambers on the third day of his evidence and he completed his evidence on 13 May from a computer in chambers. Similarly, Ms King had a problem with her Wi-Fi whilst cross examining the Father. She agreed to travel into chambers, which happily was only 30 minutes away, so that she had a secure connection. I record these events in order to highlight that conducting a hearing such as this does require some flexibility and perhaps creativity, but on this particular case problems were capable of being overcome.
Overall, I am confident that the hearing was undertaken fairly, all the witnesses had the opportunity to give their best evidence, and the hearing was not materially impeded by being undertaken remotely rather than in a courtroom. Some of the evidence was extremely upsetting and there were times when the Mother, Father and the paternal grandmother obviously found the process distressing, but in my judgement this reality was not worsened by the evidence being given remotely. I set out below my judgement as to the truth of the evidence that I heard. I do not consider that my ability to judge the truth or otherwise of the evidence was materially hampered by the remote nature of the hearing. Although watching a witness via computer is different from doing so in court there are advantages as well as disadvantages. The witness appeared much closer and facial expressions were easier to pick up. The interaction between the cross examiner and the witness was surprisingly similar to that in court and, in my view, cross examination was as effective as would have been the case in court. I am also confident that each witness was on their own when giving evidence and was not seeking external advice.
I also record that all the advocates and, I was assured, the parties were entirely content with the process and felt that a fair hearing had been achieved. At the end of the hearing there was a clear consensus that the decision to proceed with the hearing had been the correct one. I want to emphasise this because I am conscious of the danger that the professional parties view a remote hearing to have gone well whereas the lay parties may sometimes feel less content. It took considerable effort to ensure that this was not the case here. There was no suggestion from any of the lay parties, or witnesses, that they did not feel satisfied with the process. I must also record my thanks to Mr Tughan who organised the technology in a most efficient and seamless way. In my view the process of having counsel manage the technology was an excellent solution. I had no concerns it was not being done entirely fairly to all parties and it meant that there was no burden on HMCTS or my clerk.
However, I must emphasise that my decision to go ahead with the lay evidence remotely and my comments about the efficacy of the hearing are entirely case specific. This was a case where all the parties were very well represented; the technology worked well; there were no interpreters or intermediaries and none of the witnesses were, in any legal sense, vulnerable. As the Court of Appeal said in Re A, decisions about whether to proceed with each case remotely have to be made in a highly case-specific manner.
The LA did not seek findings in respect of the cause of AX's death. By the time of the fact finding hearing it was almost a year since AX's death and SX had been in foster care throughout that time. There had been very considerable delays in obtaining the medical evidence. The lead pathologist, Dr Fitzpatrick-Swallow's final report stated that the cause of death could not be identified. The LA took the view that rather than delay the hearing in order to appoint further experts to give a further opinion on cause of death, they would ask the Court to simply proceed on the basis of the established injuries. Given the scale of those injuries I acceded to that course. Therefore, the cause of AX's death remains unidentified.
The LA did seek findings in respect of AX's head injuries; rib fractures; limb fractures and bruising to the chest. The findings sought were that one or both of the parents had inflicted these injuries; alternatively, that I should place both parents in the pool of perpetrators; that both parents would have known they had been inflicted and neither parent had sought medical attention. The LA also sought incidental findings relating to abusive treatment of SX; domestic abuse by the Father against the Mother and his previous partner, Ms Z; and domestic abuse by Mother against Father.
The factual background
I had written statements from all the witnesses referred to below and heard oral evidence from six medical witnesses and seven lay witnesses. The police had seized the parents' phones when they were arrested and the phones they subsequently purchased. The police had carried out covert surveillance on the parents. From these sources there were transcripts in the bundle of numerous WhatsApp and text messages, voicemails and transcripts of overheard conversations. I will refer to these where relevant below. The parties agreed which parts of this material were relevant and had reduced it to manageable dimensions from many thousands of pages. I am extremely grateful to them for doing this exercise. I am very conscious that what I have are the edited “highlights” and that there is a danger of this giving an exaggerated or false view of the parents' relationship because it misses out the doubtless numerous more mundane exchanges. The material is however of the utmost importance in revealing a number of episodes and exchanges which the parents did not refer to in their statements.
The Father is now 25 years old. He had a somewhat troubled childhood with some reference to having been involved in at least one fight with a knife. However, I view this as being of little relevance to the matters I need to consider. The relevant history commences when he met Ms Z in 2012 and commenced a relationship with her when she was 15. They had a baby (Y) in 2014. They separated in 2015 and Ms Z alleges that the Father threatened her with violence on occasion and was highly manipulative of her.
The Mother and Father had had a relationship when the Mother was 15 and the Father 18. They are now aged 22 and 25 respectively. They separated after a few months when the Father discovered Ms Z was pregnant. The Mother and Father met again and commenced a relationship in 2015. On 30 May 2015 the Father was cautioned for criminal damage for punching his fist through his mother's door.
In October 2015 the Father applied to join the Army Reserves and was in the Reserves, at least for a time.
In March 2016 SX was born. In February 2018 SX was taken to the local A&E with a reported febrile convulsion. Doctors raised concern about a bruise to his left arm that resembled a bite mark and a chipped front tooth. Safeguarding enquiries were undertaken and SX was discharged home.
The parents moved with SX to a two bedroom flat. I have seen a plan of the...
To continue reading
Request your trial