M & M C (Children)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,MR JUSTICE NEUBERGER |
| Judgment Date | 12 March 2002 |
| Neutral Citation | [2002] EWCA Civ 499 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 March 2002 |
[2002] EWCA Civ 499
IN THE SUPREME COURT OF JUDICATURE B1/2001/2404
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT
(HIS HONOUR JUDGE HAMILTON)
Royal Courts of Justice
Strand
London WC2
Lord Justice Thorpe
-and—
Mr Justice Neuberger
MISS S BRADLEY QC & MISS E CARLETON (instructed by Walker Crompton Halliwell, Lancashire BB4 7AB) appeared on behalf of the Appellant
MISS BLAND (instructed by Bury Metropolitan Borough Council, Lancashire BL9 0SW) appeared on behalf of the Respondents
Tuesday, 12th March 2002
This is an application for permission with appeal to follow directed for oral hearing following consideration of the case on the papers. The application attacks the outcome of a hearing in front of Judge Hamilton, sitting in the Manchester County Court, on 12th October 2001.
The case raises a relatively simple problem and one capable of relatively easy solution as far as the boundaries of the issues in this case can be defined, but there may be wider consequences of our determination. Accordingly, I think it is important to try and establish the record in the present case with some precision.
The proceedings were brought by the local authority seeking care orders in respect of two children: J, born in 1997 and D born in 2001. The principal issue of fact was as to how J and another child, named J (No.2), whose future had been settled without the need for litigation, came by some serious injuries.
On 8th May the district judge made an order, paragraph 1 of which must be recited in full:
"The matter be listed before a circuit judge at a venue to be decided, time and estimate one day, for determination of the following issues: (a) the nature of the injuries sustained by the child; (b) the time and place where such injuries were sustained by the child; (c) how such injuries were caused and in particular whether the cause of such injuries was:- (i) intentional acts or omissions by any person, or (ii) reckless acts or omissions by any person, or (iii) careless acts or omissions by any person falling short of recklessness, or (iv) an accident for which no person can reasonably be held responsible; (d) the extent to which any explanation for those injuries offered by any person is consistent with such expert medical evidence as is accepted by the court; (e) the identity of any person or persons whose acts or omissions caused or occasioned or enabled those injuries to be inflicted; (f) the extent to which there was a culpable failure to protect the child on the part of any party or other person or persons."
After an unforeseen adjournment that issue came to trial before Judge Hamilton on 19th July. He delivered a judgment, the broad thrust of which was to reject the evidence of both the mother and Mr C but to fix liability for the assault more upon Mr C than upon the mother.
The order drawn to reflect that judgment is in many ways deficient. Nowhere can the reader glean what was the outcome of the day's trial. It is, in my opinion, important to observe the formalities. Where a court has directed the determination of specific issues then the judgment of the court performing the task should first address those issues in turn, and specifically, so that it is evident that there has been a complete and thorough performance of the operation. Then those findings should be set out in the order drawn to record the outcome of the day's proceedings. The order can then go on to make such further directions as are appropriate, such as the direction recited in this order to the effect that the first, second third and fourth respondents must file statements detailing their respective positions in reaction to judgment by a certain date.
Those position statements were, in the main, filed, and in the following month of September the mother confessed to a social worker that she was responsible for the injuries to J (No.2) but not for the injuries to J. That confession was subsequently formalised in a statement filed in the proceedings. That led the local authority to issue an application on 26th September which sought a directions hearing before Judge Hamilton. At that appointment the application said that:
"The judge should consider further directions.
It is felt by all parties that the matter should be returned before Judge Hamilton so that directions can be given in relation to the following issues. 1. An assessment of CC.
2. The possibility of a further assessment of KM. 3. To consider whether any further directions may be required in the light of the recent admissions."
When the parties appeared in front of Judge Hamilton on October 12th we understand that counsel for the mother made an application for a retrial of the preliminary issues. That application was supported by counsel for Mr C. The judge delivered a short judgment, in which he said:
"Having heard the submissions which have been made in the light of the further statement which has been filed by the Mother, which is dated 28th September, in which she makes admissions as to inflicting the injuries upon J [(No.2)], and the request for a further hearing to consider the findings I made, I have to say I am not convinced that that is either necessary or, indeed, appropriate."
He went on to explain that he had had no confidence in the earlier statements of the mother or in her oral evidence or in the oral evidence of Mr C. Why then should he attach any particular significance to a fifth statement? The judge ended this short judgment by saying:
"So, having given a fair amount of consideration to the situation… my conclusion is that it would not be appropriate to seek to have these matters reopened by having another finding of fact hearing because I have to say I doubt whether the conclusions that I could arrive at would, in fact, be necessarily any different."
The application for permission to this court was supported by a skeleton argument which makes a number of telling points. It is said that the situation that has arisen in this case is not unusual, and that it poses problems that have not so far found any conventional solution. It is said that the judge must have fallen into error in declining to adjust to an admission of responsibility which might be true and which, if ignored, would expose the court to inevitably mistaken assessments of risk in relation to the mother, both as a parent to these children and in relation to children more generally. It is also said that any refusal to accept and weigh this statement risked a false appraisal of what was necessary to protect these two children for the future and perhaps more generally other children. Those, of course, are two sides of the same coin.
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