Re B (A Child)

JurisdictionEngland & Wales
JudgeLORD JUSTICE WALL,LORD JUSTICE MAY
Judgment Date24 March 2006
Neutral Citation[2006] EWCA Civ 486
Docket NumberB4/2006/0226, B4/2006/0268
CourtCourt of Appeal (Civil Division)
Date24 March 2006

[2006] EWCA Civ 486

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM READING COUNTY COURT

(HIS HONOUR JUDGE MCINTYRE)

Royal Courts of Justice

Strand

London, WC2

Before:

Lord Justice May

Lord Justice Wall

B4/2006/0226, B4/2006/0268

In The Matter of B (A Child)

MR J AGEROS (instructed by Messrs Deborah Baxter & Co, 9 Church Street, Reading, RG1 2SB) appeared on behalf of the appellant father.

(instructed by Messrs Clifton Ingram, 22–24 Broad Street, Wokingham, RG40 1BA) appeared on behalf of the appellant mother.

MS J MITCHELL (instructed by Woking District Council and Messrs Ratcliffe Duce & Gammer, 86 Rose Street, Wokingham, RG40 1XU) appeared on behalf of the child.

LORD JUSTICE WALL
1

1. This is an application by the parents of a little boy called S, who will be two years old on 27 March, for permission to appeal against the refusal of HHJ McIntyre to make an order in care proceedings relating to S, that they should have permission to show the papers to and instruct a particular organisation to advise about the ability of the parents to care for S in the short term.

2

The background is that S suffered two serious injuries when he was very small. The first, when he was about eight months old, was a fracture of the skull. The second, at the beginning of April 2005, was when he suffered a fracture to his shinbone. Because the parents were unable to produce a satisfactory explanation for either injury, the local authority took care proceedings. S went to live with his maternal grandparents, where he still is, and as is often the case the court conducted a causation, or fact-finding, hearing. The reason for that is that a child can only be the subject of a care order or supervision order if the threshold criteria in section 31 of the Children Act 1989 are met; that is, the child has either suffered or is likely to suffer significant harm effectively caused by his parents. Plainly if there was a satisfactory accidental cause for S's injuries the care proceedings would fall at that stage. There was therefore a lengthy causation hearing before the judge which culminated in a judgment which we have, dated 2 December 2005. The judge found that both injuries were non-accidental; that both had been caused whilst S was in the care of his parents; that there was no satisfactory accidental explanation for the injuries; and accordingly that the threshold criteria under section 31 were satisfied. There is no application for permission to appeal against those findings.

3

The case then had to move to the second stage, the welfare stage, where the court has to decide what should to happen to the little boy. It is a curious feature of this case that prior to the causation hearing, the case management of it had included an order made on 15 August 2005 by Judge Ellie, that Doctor Emma Williams, a psychologist, should file and serve a report by 17 October, that is before the causation hearing. Unfortunately the documentation does not demonstrate clearly on what basis Doctor Williams was to be instructed or what precisely was to be her brief. There is some suggestion that it was to include the question of propensity, but Mr Ageros rightly points out that if that was the case it should not have been, because propensity was not an issue that was material for the judge who was deciding a pure issue of fact.

4

What in fact happened was that Doctor Williams did produce her first report prior to the hearing before the judge. It is dated 12 October, and she lists what her instructions were. They were to assess and describe the cognitive functioning of the parents; the attachment of S to his parents; his parents' capacity to provide consistent nurturing and safe parenting for him; to identify any changes that would be required to enable the parents to resume his care; what the timescale for that was; and, if she did not think the parents were able to care for him, what alternative placement there should be.

5

Doctor Williams produced, as I indicated, her first report and in my judgment it is an extremely good report. It contains a thorough investigation of both parents (with psychometric testing) but of course, as Doctor Williams was the first to recognise, this opinion, or any opinion she was seeking to express, was expressed in advance of the finding of fact hearing. The parents denied injuring the child, and therefore clearly it was not possible for Doctor Williams to form a final opinion until such time as the finding of fact hearing had been completed. Therefore she said that the remaining issues would be addressed by her once she had had the opportunity to see the judgment in the causation hearing.

6

She goes on to say that in relation to the second, welfare aspect of the case:

"… the acceptance of responsibility would be a fundamental requirement. The level of parental of acceptance responsibility for the injury/injuries as opposed to continued denial is a crucial factor in considering the likely success of reunification following serious non-accidental injury."

That was her first report. She reported for the second time on 1 January 2006 after the causation hearing had taken place. Once again she produces a concise description of her assessment of the parents, and she answers the question, "What is the level of their acceptance?" in these terms:

"The parents do not accept the findings. Both parents were vehement that the findings were biased and wrong. [The mother] interpreted the findings as 'being blamed' and the implications of the findings as 'having a lot of changes to make to prove him wrong'. [The mother] found it hard to believe that the judge had found the injuries to be non-accidental and caused whilst in their care."

She went on then to answer the question:

"In the light of the above what risks does either or both parents pose to S?"

and she says this:

"There is currently an impasse; the judge has found that both of the baby's fractures were caused non-accidentally, and whilst in the care of his parents, either one of whom might be the perpetrator. The parents continue to state that the tibia fracture was caused whilst under Claire Davis's care [that is a maternal aunt] and the skull fracture was accidental but without known cause. The risk of returning S to an environment in which he has twice sustained non-accidental injury, the antecedents and cause of which remain unknown, is considerable."

7

She goes on, when asked the question "What is their motivation, commitment and capacity to effect what changes are needed?" to report:

"Currently both parents stake strong commitment to wanting S to return to their care and are expressing some motivation to change. However the relevance of the changes proposed is not known; [the mother] cites stopping alcohol and cannabis use as important. [The father] said that he has reduced his use of alcohol at the request of his partner but felt that cannabis helped him to relax. The pertinence of these factors to the non-accidental injuries is unclear, and other potential factors remain unacknowledged and therefore unaddressed.

"Whilst mindful that the exact nature of the necessary changes is, as yet, unclear, there are no major impediments to either parent's capacity to change."

She then goes on, when asked about the therapy that would be required, to say that:

"… the following changes would be necessary. (1) Acknowledgment of the injuries as non-accidental thereby enabling (2) Admittance of causation of the injuries by the perpetrator (3) Understanding of factors involved in the incident, (4) Treatment or management of those factors. This might include the following types of intervention; practical parenting skills, cognitive- behavioural therapy (for example to challenge thinking errors, misattribution) , emotional control (for example anger...

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