Re B (Care: Expert Witnesses)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUTLER-SLOSS,LORD JUSTICE WARD |
| Judgment Date | 29 September 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J0929-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | FC2 95/6965/F and FC2 95/6956/F |
| Date | 29 September 1995 |
In the Matter of:
[1995] EWCA Civ J0929-1
(His Honour Judge Bradbury)
Before: Lord Justice Butler-Sloss Lord Justice Ward
FC2 95/6965/F and FC2 95/6956/F
CCRM1 95/1180/F
IN THE HIGH COURT OF JUSTICE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BEDFORD COUNTY COURT
MR P HORROCKS (Instructed by Sharpe Pritchard, London WC1V 6HG, agents for Motley & Hope, Biggleswade, Beds) appeared on behalf of the Applicant/County Council.
MR S TATTERSELL (Instructed by Barnes Martell & Partners, Bedford) appeared on behalf of the Respondent/mother.
MRS H POPE (Instructed by Batchelors, Bedford) appeared on behalf of the child acting by her Guardian ad Litem)
I will ask Lord Justice Ward to give the first judgment.
This is an appeal by the Local Authority, supported by the guardian ad litem, against an order made by His Honour Judge Bradbury on 18 July 1995, whereby he firstly dismissed the Local Authority's application for a Care Order in respect of a young child, K; secondly, and in circumstances which I shall explain, made an Interim Care Order giving directions for a review; and, thirdly, refused to give the Local Authority leave to terminate contact.
The facts are briefly these: K was born on 27 May 1994. She was the first and only planned child of her parents. The father was a prison officer; the mother had a steady job in the Inland Revenue. The child and mother were seen by the health visitor. Visits were necessarily of short duration but nothing that was seen gave her the slightest cause for any anxiety about the parents and particularly the mother's care of the baby. In about August the mother observed some small dot marks on the child's cheeks. They looked like bruises but she thought they were associated with teething problems. She sought no medical advice in respect of that and the judge rejected criticism of her actions as unjustified.
At the end of September the mother again saw similar marks on the baby. This time she responded by drawing them to the attention of the health visitor when she took the baby to the Health Centre. The matter was referred to the General Practitioner who noted that the mother seemed to be sensible, but he questioned whether this was non-accidental injury. The child was referred to the hospital. The mother heard no more and assumed there was no cause for concern. The judge found that she had behaved appropriately.
There was an occasion in November when the mother recorded the child striking her head on a hard surface in the car. The judge believed that that had happened. On 24 November the baby was in the care of the father. The mother had temporarily returned to work. The father gave an explanation that the child had fallen onto a plastic toy. In fact this child had been grievously injured. She had suffered bruising above the eye; a subconjunctive haemorrhage, a bruise to the left temporal region, bruises on the shoulder and, as it later emerged from the x-rays and CT scans, she had sustained a large fracture, or series of fractures, to the occipital region at back of the head and she was suffering internal bleeding.
Those injuries have caused serious harm to this baby. She suffers some deficiency of movement of one of her arms and her vision is impaired. On the evidence I have seen, it is not yet certain whether her intellectual ability has been impaired. It is quite apparent that this child has been damaged and is now in need of some extra special care.
The authorities were duly and properly concerned. They applied for and were given an emergency Protection Order. In due course an Interim Care Order was made, the child being removed into the care of foster parents. The father was arrested. He was extensively questioned by the police, although no criminal proceedings were ever launched against him. It was then decided, and one applauds the decision, that all concerned would appoint an expert to make an assessment of the parents and their abilities to care for the child. That was a joint instruction to an eminent consultant paediatrician. She conducted a residential assessment with the parents and came to the conclusion that these parents were quite unable to give full and proper care to the child. She expressed her grave concerns about the lack of bonding, particularly with the mother. Consequently, the assessment came to an end and the child was returned to foster parents with substantial contact being afforded to the parents. That contact was supervised by an eminently sensible lady, Mrs Kirkwood, who has no formal qualifications in child care, but has brought to her work a wealth of practical experience.
There was an occasion when the doctor viewed a contact, as did Mrs Kirkwood. They differed in their assessment of that occasion but they differed, moreover, in the observations of what actually transpired. The conclusion reached by the expert with which the Local Authority were in full agreement, was that this child should be permanently removed from her parents and placed for adoption, all contact being terminated. It was a view with which the guardian ad litem, an experienced lady, agreed after having conducted her own independent investigation of this case.
The issues that fell for decision when the matter came before the judge, could be analysed in four parts. Firstly, did one or other, or both, of these parents physically ill-treat this child; secondly, if only one caused these dreadful injuries, had the other failed to protect the child; thirdly, had the child suffered, or was she at risk of suffering, significant emotional harm due to the absence of, or the weakness of a secure attachment between mother and a child; fourthly, if the Section 31 threshold had been crossed, what order did the welfare of this child dictate the court should take?
The judge correctly addressed the various issues. In summary, he concluded that, firstly, the threshold had been crossed because he found that these were non-accidental injuries occasioning her significant harm. Secondly, that the father was solely responsible for the child's injuries. He made the important and crucial finding that the mother was to be exonerated from having played any part in the causation of those injuries. Thirdly, that the mother had not failed to protect her daughter. Fourthly, that the mother had not caused her baby any emotional harm and that she had met, and was capable of meeting, the child's needs physical and emotional. Fifthly, the judge concluded that the best interests of the child would be served by a phased return to her mother's care in the maternal grandparent's home in Lancashire, subject to supervision of the Lancashire Local Authority.
In a sustained attack upon that judgment, Mr Horrocks, stoutly and tenaciously supported by Mrs Pope, contended primarily that, firstly, the judge erred in law in not acting on the unanimous opinion's of the experts, the paediatric consultant, the guardian ad litem and the social worker, all of whom urged that the child be placed for adoption as I have indicated. Secondly, the judge erred in adopting the course which had no support from any expert, and which amounted, therefore, to a wrongful assumption of expertise by the judge which he did not possess. Thirdly, that he wrongly disregarded the guardian ad litem's recommendations and, finally, that he erred in making the Interim Care Order.
I reject Mr Horrock's submission that this case raises important issues of principle in child care cases as to the court's treatment of expert evidence. A similar submission, albeit in a wholly different context, met with a very sharp rebuff from Lord President Cooper who declared in Davis v Edinburgh Magistrates [1953] SC 34 at page 40:
"The parties have involved the decision of a judicial Tribunal and not an oracular pronouncement by an expert."
In a sense the position in children's cases is a fortiori because Section 1 imposes a duty on the court to be satisfied as to, and to give paramount consideration to, the child's welfare, which emphasises the need for the court to exercise its independent judgment of the material facts. Whilst, therefore, I agree with the Lord President's conclusions, I would not wish to adopt quite such a stringent tone. Nothing in this judgment should be thought to undermine, or to undervalue, that great success of the Children Act which has been very firmly to establish the tangible benefits of an inter-disciplinary approach to this work. The court invariably needs and invariably depends upon the help it receives from experts in this field. The court has no expertise of its own, other than legal expertise.
Another success of the Children Act has been the training, including and especially the training in related disciplines, which all judges receive. By their special allocation to this work, they acquire a body of knowledge which, strictly speaking, cannot be substituted for the evidence received, but which can be deployed to spot any weakness in the expert evidence. That is the judicial task. The expert advises, but the judge decides. The judge decides on the evidence. If there is nothing before the court, no facts or no circumstances shown to the court which throw doubt on the expert evidence, then, if that is all with which the court is left, the court must accept it. There is, however, no rule that the judge suspends judicial belief simply because the evidence is given by an expert.
There is no important point of principle arising in this case. This is not a case where there was no other evidence before the judge. The mother...
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