Re B (Children)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,LORD JUSTICE RIX,LADY JUSTICE ARDEN |
| Judgment Date | 29 May 2002 |
| Neutral Citation | [2002] EWCA Civ 902 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 May 2002 |
| Docket Number | B2/2002/0113 B2/2002/0112/A |
[2002] EWCA Civ 902
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
LEEDS DISTRICT REGISTRY
(Mr Justice Coleridge)
Royal Courts of Justice
Strand
London WC2
Lord Justice Thorpe
Lord Justice Rix
Lady Justice Arden
B2/2002/0113
B2/2002/0112
B2/2002/0112/A
MISS L ARMITAGE (Instructed by North Yorkshire County Council) appeared on behalf of the Applicant Local Authority (Applicant below)
MR P COLLIER QC and MR T HAJIMITSIS (Instructed by Messrs Crombie Wilkinson, York 9RJ) appeared on behalf of Applicant K R (Fourth Respondent below)
MS S CAHILL and MR G SWIFFEN (Instructed by Messrs Cox Robinson, York YO1 9TZ) appeared on behalf of the Mother (First Respondent below)
MR J HAYES (Instructed by North Yorkshire Law, Scarborough YO1 5ED) appeared on behalf of the Guardian ad Litem (Third Respondent below)
D B is 31 years of age. When she was about 22 she gave birth to her daughter, Y. She and the newborn went to live with her mother, and there she cared conscientiously for her daughter until moving into her own home in 1999. There were no criticisms of her standards of care for Y, either prior to or after that move. It seems that she had formed a relationship with a man named D C, of which we have made little investigation at this hearing. A son was born to them on 8th November 1999 named K. It seems that the couple cohabited at about that date. But at some time thereafter they separated, making way for the development of a relationship between D B and K R which commenced in the spring of 2000. It seems that a sexual relationship developed between them quickly and that by September 2000 K R was more or less living full-time with D, although he maintained his own home in a neighbouring town.
There is no doubt at all that K first suffered serious injury in that month of September 2000. He was taken to the local hospital on 20th September because his mother was worried about possible injury to his right arm. She said that he had screamed in pain earlier that day when picked up. He was examined by a doctor at the hospital who did not detect any treatable injury. He was seen on the next day by the mother's general practitioner, who again carried out an examination without detecting any treatable injury. It was not until he was seen again on 27th September that an X-ray revealed a healing fracture of the arm, and that was put into plaster on 4th October.
Thereafter K suffered an appalling series of injuries which were fully detailed in the judgment of Coleridge J which concluded the preliminary issue hearing. The injuries were medically recorded and identified numerically 94 in total. They consisted of fractures to the right leg; to the ribs; to the left big toe; internal injuries to the liver and pancreas; extensive bruising all over the body; and other internal injuries. It would be hard to draw up a more serious catalogue of injuries to a very young child.
The judge made some clear findings as to the date upon which these injuries were sustained. He said in relation to the right arm fracture that it was likely to have occurred in the week of 14th September. Of the fracture to the right distal tibia and the multiple old rib fractures, he found that they were most likely to have taken place in the week of 24th November 2000—although it was possible that the rib injuries had been inflicted during the previous week. He said that the fracture of the toe, the internal injuries to the liver and pancreas (described as old), the old bruises and the second lot of rib injuries seemed to have occurred in the period between 6th December and, at the latest, 12th December. Then in relation to 14th December, the judge said that K had suffered bruising to his face, further fractures to the ribs and very significant internal injuries. Finally, he considered a particularly significant bruise, which had been given the number 18 on the medical schedule. He said that it was a very important and very visible large bruise in the middle of K's back, for which no explanation had properly been provided. He said that he would return later in his judgment to the dating of that bruise, which was crucial to his findings of culpability.
These very serious injuries, sustained in the months of November and December, were neither reported nor treated and the first medical intervention came when K was already dead. He was admitted to the local hospital in the early hours of 15th December, where he was examined by a doctor who subsequently recorded his findings. The coroner's pathologist carried out a post-mortem on the morning of the 15th, and at his first examination he was assisted by the consultant paediatrician from the hospital in the neighbouring city.
These very serious and fatal injuries were obviously the subject of police investigation. Statements were taken from both the mother and Mr R, as well as members of the extended family and others who had been in contact with K.
Obviously for the local authority it posed a very difficult question as to the protection and management of Y. Although she had been put on the At Risk Register in the immediate aftermath, she was left with her mother and K R pending the initiation of proceedings on 30th March 2001. The local authority's care application was subsequently transferred to the County Court. In April Y moved to live with her maternal aunt, where all acknowledge that she is safe. There she remains.
After the transfer to the County Court, directions were given for a split hearing and that was set down before a judge of the Family Division to commence on 4th December. Obviously a good deal of work was done in advance. The local authority marshalled its case, filing statements from other experts as well as Prof Rutty, the coroner, and Dr Ball, the paediatrician. There was a meeting of experts in which broad agreement was reached on all issues. There were no experts instructed on behalf of either the mother or K R, and a series of questions were settled for the judge's determination. They are set out in full at pages 4 and 5 of his judgment.
The relationship between the mother and K R apparently ended on 2nd December when he left her home. The judge recorded their position statements at the preliminary hearing at pages 6 and 7 of his judgment. By paragraph 2 of her position statement the mother accepted that K had the fractures and internal injuries as described by the doctors. She said she had no knowledge of these, save for the arm injury for which she sought treatment. She further accepted that K had died as a result of non-accidental injury inflicted on him in the hours before his death. She continued that she did not know when the injuries were sustained. She did not inflict them and she did not see anyone else inflict them. She denied that she failed to protect K, as she was unaware of the risk to him. She said that she accepted, in view of the medical opinions as to the timing of the injuries causing death, that K R must be the perpetrator of the injuries to K. She said that they had separated.
In K R's position statement he accepted that K had suffered non-accidental injury in the four weeks prior to his death. He continued that he was not in a position to allege that any particular person was responsible for any particular injury. He said that his understanding was that the local authority acknowledged that other people had care of K in the four weeks prior to his death to a greater degree than himself, and he did not understand why the attack on him was not equally mounted against them.
On those position statements the findings that the judge was asked to make, as recorded at pages 4 and 5, were really inapt. Of course they were settled at an earlier stage before the position statements. But once the position statements had been filed, there were really only two issues for the judge: who was responsible for the perpetration of these appalling injuries and who was responsible for failing to protect K from these appalling injuries?
The trial before the judge lasted, as we are told, 11 days for evidence and two days for submissions. He delivered his judgment on 20th December. He came to the clear conclusion that K R was the perpetrator of all injuries, that the mother could be exonerated as a perpetrator, and furthermore that she had not failed to protect K at any stage during his life. He was critical of the mother's continuing relationship with K R, certainly after the spring of 2001 when she had sufficient expert evidence to demonstrate that he must have been the perpetrator.
This was of course for the mother an extraordinarily satisfactory outcome. For the whole purpose of a preliminary issue hearing is to clear the ground to enable the judge to embark upon his crucial and fundamental task to determine the future of the child in respect of whom the care order is sought. That child was Y, and all the investigation in relation to K was but preparatory to a determination of what steps had to be taken to protect Y to ensure that she never suffered the appalling injuries that her half-brother had suffered.
But the outcome was profoundly unsatisfactory to all the other parties. K R sought permission to appeal. His application was founded on the criticism that the judge had arrived at the conclusion that he was the perpetrator by a process of elimination. However, that criticism could not be made good. Since although that was the judge's starting point, he had gone on to make findings and to express conclusions which fully supported the indication...
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