Re Cb and Jb (Minors) (Care Proceedings: Case Conduct)
| Jurisdiction | England & Wales |
| Judgment Date | 1998 |
| Date | 1998 |
| Court | Family Division |
Child – Non-accidental injury caused whilst in care of parents – No other possible perpetrator – Both parents denying causing injuries – Guidance as to preparation of such cases.
Care proceedings were brought in respect of twins who were born in February 1996. It was alleged that one of them had been the victim of two shaking episodes whilst in the care of their parents, the first in October and the second in November 1996. After a hearing in chambers the judge made care orders in respect of both children. The facts in the case were very simple, the only factual issue being which parent had inflicted the child’s injuries. Yet, although the care proceedings were commenced in November 1996, the substantive hearing did not take place until February 1998; a large number of expert opinions had been sought; and the legal advisers had not worked towards clarifying the issues. The judge found that it was a simple case that had gone badly wrong and adjourned into open court to give the following guidance as to the preparation of future cases.
Held—(1) Where a factual issue was critical to the establishment of the threshold criteria and a split hearing was ordered, the parties and the court should concentrate their energies on assembling evidence relevant to that issue to the exclusion of other evidence, such as an assessment of the parents, which would only be relevant if and when the threshold criteria were established.
(2) It was not usually appropriate for psychiatric or psychological evidence to be adduced as to the propensity of a parent to injure a child or as to the likelihood of a parent having done so; Re M and R (minors) (expert opinion: evidence) [1996] 2 FCR 617 considered.
(3) Where the evidence satisfied the court that one of two children had been non-accidentally injured by a parent but the court could not decide which parent had inflicted the injuries, the threshold criteria would have been met in respect of the uninjured child as well as the injured child; further, where, subsequently, one parent was off the scene it did not follow that the children could safely be returned to the other parent as the fact remained that injuries were inflicted on one of them by one or both parents whilst in their care.
(4) Where experts were instructed they were at liberty to discuss the case with each other provided such discussions were recorded and disclosed.
(5) Although a party’s letter instructing an expert should be disclosed, it was not necessary for it to be agreed with the other parties unless the expert was jointly instructed pursuant to an order of the court.
(6) Where experts needed to confer to define or limit areas of disagreement or to elucidate points that could be at a face to face meeting or by telephone conference or fax. The subject matter for discussion should be carefully considered beforehand and only the relevant disciplines involved. A proper record should be kept and the results of the meeting distilled into a statement to which all the experts could put their names and which thus acquired evidential standing.
(7) Where the medical evidence was unanimous it was not necessary for any of the experts to attend to give evidence unless the parents had not instructed an expert and their instructions to their legal representatives did not permit agreement with the medical evidence in which case it might be appropriate for leave to be given for one of the medical witnesses to be called.
(8) It was essential that guardians ad litem and the solicitors they instructed should work together to define the issues, the nature of the investigation to be undertaken, the need to instruct experts, and the conclusions to be presented to the court in any report.
(9) Applications for consent orders should be examined by the court and only orders which the court deemed appropriate should be made.
(10) Judicial continuity was important as was continuity of legal representation; wherever possible, one judge should preside over all the interlocutory stages of a case and take the final hearing.
(11) In the present case, an inquiry as to which parent injured the child was necessary as, if it had been found that the father was responsible, an assessment of the risk involved in placing the children with the mother would have had to be undertaken.
Cases referred to in judgmentG (children’s cases: instruction of experts), Re[1994] 2 FCR 106.
H and R (minors) (sexual abuse: standard of proof), Re[1996] 1 FCR 509; sub nom Re H (minors) (sexual abuse: standard of proof) [1996] AC 563, [1996] 1 All ER 1, [1996] 2 WLR 8, HL.
M (minors) (care proceedings: conflict of children’s wishes: instruction of expert witnesses), Re[1994] 1 FCR 866.
M and R (minors) (expert opinion: evidence), Re[1996] 2 FCR 617; sub nom Re M and R (minors) (sexual abuse: expert evidence) [1996] 4 All ER 239, CA.
M v M (allocation of judge) [1993] 1 FCR 781, CA.
S (care order: split hearing), Re[1996] 3 FCR 578.
ApplicationCare proceedings were brought as a result of a child suffering non-accidental injuries at the hands of a parent. At the hearing Wall J found that what was a
simple case had gone badly wrong and, having dealt with the merits in chambers, adjourned into open court to give guidance as to the preparation of future cases of this nature.
Cur adv vult
8 April 1998. The following judgment was handed down.
WALL J.On 13 February 1998, after a hearing in chambers, I made care orders in favour of a local authority in relation to twins, CB and JB, born on 7 February 1996 and so two years old. CB is a girl; JB is a boy. I also made a supervision order in favour of the same local authority relating to the twins’ half-brother, SS, who was born on 28 August 1991, and so is now six.
The parties to the proceedings were AMS, the mother of the three children, and PB, the father of the twins. SS’s father, one PG, played no part in the proceedings. The mother had a fourth and eldest child, a girl called KS, born on 17 December 1988 and so now aged nine. KS lives with her maternal grandmother, Mrs S, whose home is very close to that of the mother. KS thus sees her mother on a daily basis, and was not the subject of the proceedings. CB, JB and SS were all represented in the proceedings by a guardian ad litem.
The need for a supervision order in relation to SS was on the evidence overwhelming and the order was agreed by the mother during the course of the hearing. So far as the supervision order in relation to SS is concerned, neither the basis upon which the threshold criteria were satisfied nor the reasons for making it is material to this judgment. SS lives with his mother, and the supervision order was designed to secure that placement rather than alter it.
The facts of the case are very simple. CB was the victim of at least two shaking episodes whilst living in the care of her parents. The medical evidence to this effect was unanimous as to causation and unequivocal as to timing. The first episode had occurred within a maximum of 24 hours of, and probably some two hours prior to, a 999 call made by the mother at 09.36 on the morning of 1 October 1996, which led to CB’s admission to hospital at 09.59 on that day. The second had occurred within a maximum of two hours before the child’s admission to hospital at 15.29 on the afternoon of 12 November 1996, following a 999 call by the mother at 15.00 on that day. Moreover, the parents were the only candidates for the role of perpetrator.
Both parents denied shaking the child. Accordingly, the only factual issue in the case was whether or not it was possible to make a finding of fact as to which parent had inflicted the injuries, applying the standard of proof laid down by the majority of the House of Lords in Re H and R (minors) (sexual abuse: standard of proof) [1996] 1 FCR 509; sub nom Re H (minors) (sexual abuse: standard of proof) [1996] AC 563, [1996] 1 All ER 1 (which I will call henceforth the ‘Re H and R standard’).
On the evidence available to me, I was unable to find which of the parents had shaken CB on the first occasion: however, the evidence was overwhelming that the mother had been alone with the child throughout the relevant period
on the second occasion and that on this occasion it was she who had shaken the child. I so found. That finding was determinative of the case. By the time of the hearing before me, the father was in prison, serving six years for domestic burglaries committed during the period of the proceedings but otherwise unrelated to the case. The mother continued throughout the hearing to deny that she had shaken CB. Quite apart from the evidence relating to her parenting skills therefore, there was no question, on the facts of the case, of either child being returned to her care.
Care orders in relation to both children were thus inevitable. The local authority had issued applications to free both children for adoption. Without objection from the parents’ lawyers those proceedings were listed concurrently with the care proceedings. Having made care orders, I dealt with the freeing applications. The father did not have parental responsibility for the twins. I therefore dispensed with the mother’s agreement on the basis that it was being unreasonably withheld, and freed both children for adoption.
Against this very simple background it came as a considerable surprise to me when I saw the case for the first time at the pre-hearing review in January 1998, that the documentation ran to three large and bulging ring binders; that both parents were represented by leading counsel (although leading counsel for the father was in the event detained by an overrunning criminal trial, and the case was conducted, very competently, by his junior); that in relation to the purely medical issue there were statements and reports from no less than three consultant paediatricians, a professor of paediatric radiology, a paediatric neurosurgeon, a consultant paediatric neurologist and a consultant...
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