North Yorkshire County Council v Sa
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,the President,Lord Justice Clarke |
| Judgment Date | 01 July 2003 |
| Neutral Citation | [2003] EWCA Civ 839 |
| Docket Number | Case No: B1/2003/0974 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 July 2003 |
[2003] EWCA Civ 839
The President
Lord Justice Thorpe and
Lord Justice Clarke
Case No: B1/2003/0974
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(Mr Justice Charles)
Mrs Sally Cahill QC (instructed by North Yorkshire CC) for the Appellant
David Hershman QC and John Myers (instructed by Jones Myers Gordon) for the First and Second Respondents
Jonathan Cohen QC (instructed by Murrays) for the Third Respondent
Ms Eleanor Hamilton QC (instructed by Gordons) for the Fourth Respondent
Mrs Sally Bradley QC and Ms Gillian Mathews (instructed by Crombie Wilkinson) for the Fifth Respondent
Crown Copyright ©
Dame Elizabeth Butler-Sloss P. :
This appeal again raises the issue of the correct approach of the court to the attempts to identify the possible perpetrator(s) of non-accidental injuries to a baby or young child when, as so often is the case, there is no direct evidence of the infliction of the injuries. In the present case a baby boy, M, was 11 weeks old when he was taken to hospital on the 15 th September 2002 suffering from serious injuries. The view of the hospital was that the injuries were non-accidental and the local authority issued care proceedings. The respondents to the care proceedings were the parents, M (through his guardian) and, joined shortly before the hearing, Miss S, the night nanny, who was on duty during part of the period when the child was injured. The maternal grandmother was not a party. The proceedings, the subject of the appeal, involved the first part of a split trial designed to ascertain whether the section 31 Children Act 1989 threshold was reached. The substantive hearing took place before Charles J over 8 days in March 2003 and his judgment was handed down on the 16 th April. The judge held that the child had been injured non-accidentally both on the 14th/15 th September and on an earlier occasion and that, accordingly, the threshold conditions were met. He was unable to identify the perpetrator of either injury but did not exclude any of the parents or the maternal grandmother or the night nanny from being the possible perpetrator of the second incident on the 14 th/15 th September. The local authority and the night nanny are both appellants and the parents, the grandmother and M are respondents to this appeal. The second part of the split trial, fixed for the 17 th June 2003, has now been vacated. We reserved our decision on the appeal.
The Facts
M is now nearly one year old and was born on the 1 st July 200His parents had tried to have a child over several years and had engaged in IVF treatment. The pregnancy was difficult and the mother had an emergency caesarean section with complications. He was not an easy baby to manage; he was fractious and cried a lot and was difficult to settle after feeds. He was however thriving well. After M's birth his mother was his primary carer and the father played a very limited role in his care. The mother had a considerable amount of assistance partly from her mother and primarily from a Mrs B who had been a midwife and regularly cared for the child. The parents were in business together and the mother returned to work at the beginning of September.
On the 10 th September the parents, accompanied by Mrs B and her husband, went to London. Mr and Mrs B left on the 12 th September and the night nanny was employed for the following three nights, 12 th/13 th/ 14 th September. She had not previously worked for the parents. She was employed through an agency and arrived with the highest credentials. On the 13 th September the maternal grandmother looked after M during the day. On the 14 th September M went out with the parents and maternal grandmother. On their return about 5.30 pm he was fed, bathed and put to bed by the maternal grandmother who then looked after him to enable the parents to go out at about 8.15 pm. The night nanny arrived at about 10pm. Between 10pm and 7.30am M was in the care of the night nanny. The parents returned about 11.30pm and went to bed. In the morning the night nanny and the mother met in the kitchen around 7 or 7.15am and the night nanny left at about 7.30am. The mother went to look at the baby and as a result of what she saw she took the child upstairs to her mother. The parents and the grandmother considered, correctly, that he was unwell and the mother and the father took M to the Accident and Emergency Department of the hospital. The child was recorded as arriving at the hospital at 8.27am.
The injuries
On examination M was found to be suffering from
a) fracture to the right arm which was described as a transverse fracture through the proximal shaft of the right ulna, near the elbow joint;
b) bilateral retinal haemorrhages;
c) bilateral subdural haemorrhages; and
d) some damage to the brain shown on the MRI scan.
There was also a bruise to the left forearm which did not appear until the afternoon of the 15 th September. The baby had one or more fits on the 17 th September.
It was accepted by all parties before the judge that the injuries were non-accidental and that the fracture, the retinal haemorrhages and damage to the brain were caused by one incident which occurred between 6.30 pm on 14 th September and the time of the baby's admission to hospital on the morning of the 15 th September. The judge described them as 'the injuries'.
The earlier injury
There was an issue between the parties as to whether there had been one or two incidents causing subdural haemorrhages. The neuro-radiologists identified from the imaging separate collections in the sub-dural region of different appearances which suggested bleeds of different ages. The earlier subdural haematoma described by the judge as the 'possible earlier injury' would have occurred between mid-July and the 8 th September. During this earlier period on the 11 th August the baby was unwell and was taken to the emergency doctor and was admitted to the paediatric department of the local hospital. He was discharged home later that day and there were no further problems. On the 8 th September the baby was again unwell and the mother and father contacted NHS Direct for advice. The mother was advised to take him to hospital but the child recovered and it was not considered necessary to do so. Although either of these occasions was consistent with an earlier incident causing the earlier injury, each was equally consistent with a natural explanation. The judge held, on the balance of probabilities, that there had been an earlier injury but it was not possible to identify the occasion on which it happened. It was however agreed by the family that during this period M had been in the care of the mother, the father and the maternal grandmother. Mrs B also cared for M during that period. The night nanny was not employed by the parents before the 12 th September and could not therefore have been responsible for the earlier injury.
The judge's conclusions
The judge's overall conclusion was as follows:
"337. On the present evidence I have reached the following conclusions to the civil standard and applying the tests set out earlier:
(1) M was injured on two occasions.
(2) On both occasions the perpetrator and anyone observing the event would realise that the handling of the child was wholly inappropriate. On both occasions the child was shaken with or without soft impact. On the later occasion the shaking was accompanied by rough handling of the right arm and overall the assault on the child was more severe than on the first occasion.
(3) I am unable to identify the person who injured M on these two occasions.
(4) I have not excluded the mother the father or the maternal grandmother as possible perpetrators of both the earlier injury and the injuries on 14/15 September 2002 or the night nanny as a possible perpetrator of the later injuries.
338. As was accepted those findings establish the threshold conditions."
In coming to the conclusions in paragraphs (3) and (4) above, the judge applied the test of no possibility, stating (at paragraph 155 of his judgment):
"The approach I have adopted is to ask myself whether having regard to the protective function of the court I am satisfied that there is no possibility that the relevant person injured M. As appears earlier I accept that there are problems in this approach. Further in my view it is unlikely that the House of Lords will adopt it because if they were to adopt a similar approach I think that they would be likely to define what should be regarded as "no possibility" by some pragmatic limitation and thereby make it easier for a person who had an opportunity to injure the child to satisfy the test. But as I have pointed out a "no possibility test" is arguably the approach in Re B No 2 and it is one that focuses on child protection. I have therefore decided to adopt it whilst accepting that after the decisions of the House of Lords I will probably have to revisit the issue whether the pool of possible perpetrators can be narrowed."
He was asked by all the parties to narrow the pool of possible perpetrators and explained why he refused to do so (at paragraph 325)
"I confess that I have reached this conclusion with some reluctance because of the difficult positions it leaves both the family and the night nanny in and because as I have explained I doubt that the guidance from the House of Lords will support the test I have adopted. However in my judgment at this stage it would be...
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