Re D (Care Proceedings: Legal Privilege)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ward,Lord Justice Rimer,Lord Justice Elias |
| Judgment Date | 14 June 2011 |
| Neutral Citation | [2011] EWCA Civ 684 |
| Docket Number | Case No: B4/2011/0887 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 June 2011 |
[2011] EWCA Civ 684
IN THE SUPREME COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHESTER COUNTY COURT
His Honour Judge Barnett
CH10C00785
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Rimer
and
Lord Justice Elias
Case No: B4/2011/0887
Mr A. Hayden QC and Mr N. Montaldo (instructed by Hibberts LLP) for the appellant
Miss L. Meyer QC and Miss C. Grundy (instructed by Poole Alcock LLP) for the respondent
Mrs D. Gosling (instructed by Forshaws Davies Ridgway LLP) for the Guardian
Hearing date: 10th May 2011
This is a care case with an interesting and unusual twist to it. L is a little boy who will be one year old next month. When he was just 6 weeks old he suffered a fracture of the mid-shaft of his left humerus, fractures of his ribs on both his left and right side and a fracture of the left tibia. The local authority obtained interim care orders and arrangements were in hand for His Honour Judge Kevin Barnett to hold a fact-finding hearing to establish the perpetrator, or the perpetrators, of these injuries.
In her witness statement dated 13th January 2011 L's Mother said that she did not know how L had received his injuries. She did explain:
"I could see that [the Father] was unstrapping L from his buggy. L was still screaming. [The Father] told me that he had to pull L's arm as it was stuck between the fabric and the metal side of the buggy. [The Father] lifted L out of the pushchair and I took L off [the Father]. L was still screaming."
She added that the Father was "a good father willing to do anything for L" and she repeated:
"I have not witnessed anyone hurting L. I know that I have not caused any injury to L. If [the Father] has caused any injury to L then I have not witnessed that and he has not told me that he has injured L."
The Father's description of the pushchair incident was that:
"I … found that, to my horror, L's arm was trapped in the stroller in between the fabric and the metal frame. The rest of L's body was struggling and thrashing around and his face was red with temper and distress. I carefully removed L's arm and gave him a cuddle. L stopped crying approximately 2–3 minutes later. [The Mother] fed him, and he fed well."
His Honour Judge Barnett, who has the conduct of this fact-finding hearing, directed that a case management conference be held on 25th February to ensure all was in order for the hearing fixed for 7th March 2011.
The parents having separated, the Mother applied without notice on 24th February 2011 for an injunction restraining the Father from molesting her, alleging that he had treated her with violence, had threatened her and on 15th February 2011 had forced her "into having sex with him". She also alleged that the Father had threatened to kill her if she spoke to her solicitor "about what has happened with L". Judge Barnett granted her the injunction.
On the same day, 25th February 2011, Mother filed a further statement for the fact-finding enquiry in which she gave a very different explanation of L's injuries. She said:
"10. I heard L screaming. I … ran into the dining room and I saw [the Father] repeatedly yanking L's arm. The pushchair was by the back wall in the dining room … [The Father] was at the bottom left of the pushchair. He had hold of L's left wrist in his right hand and he was pulling L's arm out sideways. He did this more than one time. L was screaming. It was a painful scream. I ran in and saw this and [the Father] shouted, "Shut up, stop crying, shut the fuck up now". …
16. I just cuddled L and I was crying. I ran a bath for L and I and I undressed L. His left arm was red and he had finger marks on his left wrist. …
17. [The Father] was knocking on the door and I told him to "fuck off". Then he said, "It's not my fault, he caught his arm and I was just pulling it out." …"
So here we have what Judge Barnett described as "a paradigm shift" of positions. That may not be altogether unusual. It not infrequently happens in this kind of case that one of or both parents do eventually, especially after prompting and prodding by experienced solicitors and counsel, face the overwhelming case against them and admissions of culpability are made once it is appreciated that a full and frank confession does not necessarily lead to a permanent removal of the child from the parent or parents. Much will depend on the assessments of the parents made in the light of their admissions.
But this case is, as I said, unusual and therefore interesting. The unusual feature is that the Mother gave an explanation for her change of heart which prompted the Father into asserting that in doing so she had waived the professional privilege which exists between solicitor and client so as to justify him in seeking disclosure of the attendance notes made by her solicitors and counsel at the various conferences and meetings leading to the preparation of this witness statement of 25th February. Leading counsel, Miss Lorna Meyer Q.C. for the Father and Mr Anthony Hayden Q.C. for the Mother were brought in to argue this interesting point. In a careful reserved judgment His Honour Judge Barnett found for the Father and on 24th March 2011 ordered that the Mother should serve all contemporaneous notes made by counsel during the conferences with Mother and all contemporaneous notes which were made by her solicitor during their meetings in the period from and including 21st January 2011 until 23rd February 2011, such disclosure to include any notes made by her solicitor during the conferences with counsel. He gave permission to appeal.
This unusual turn of events was founded upon the way in which the Mother introduced the change of her position. She began in paragraph 2 with an apology to the Court for the delay in making her statement:
"I am afraid to say that that has been a very long and a very difficult process for me. I have been asked many times by the Police, by Social Workers and by my solicitor Mr Tony Dimelow how my son came by the injuries that the Court has set out before them, in particular, how he came by his fractured arm. It is fair to say that before now I have not told them everything I know.
3. Before the hearing on 21st January 2011 I had met my solicitor, Mr Dimelow a number of times and I had begun to trust him, and he is someone who I am able to talk to. On 21st January 2011 that was the first time I had an opportunity to meet my barrister, Miss Lorraine Cavanagh. Both she and Mr Dimelow spent some time talking to me and explaining that the consequences of the findings of this Court might make in respect of L's injuries. Indeed, Miss Cavanagh spent some time making it plain to me that unless the Court was able to get to the bottom of what actually did happen to L (she indicated that that would have to be the absolute truth), then the consequences might be that I would lose L, that L might be placed with a family for adoption. My solicitor and my barrister explained to me that I would have to effectively make a choice, that choice would have L on the one side and on the other myself, being loyal to another person. I have to choose L and ever since that hearing I cannot stop thinking about what they said and how serious it was.
4. My solicitor arranged for me to meet with my barrister and with him again after the hearing and he arranged at first one consultation at his offices. I could not bring myself to go. The problem was that [the Father] had said he does not want me to go to any conferences because he was far too worried about what I might say to my solicitors and my lawyers and he would not let me go to the conference. I therefore cancelled the conference. … The solicitor kindly arranged another conference with the barrister and I was very very scared about what I might say at the conference and whether I would tell them what I knew, in addition to that [the Father] didn't want me to go and so therefore I cancelled that conference with my solicitor and barrister also. In all that time, I had not stopped thinking about what the barrister had said, that I might lose L to adoption and that somebody had to choose L or he might be lost. I have been very frightened about the consequences of telling everything to the Court, in particular the consequences to me of having told the Police, the Social Worker and my solicitor other things in the past that were not necessarily accurate or true.
5. My solicitor arranged a conference for me on 9th February 2011 whereby the barrister would come to his office in Crewe, and he indicated to me that was going to become my last opportunity as he could not keep arranging conferences for them to be cancelled. In the week before the conference I found out that [the Father] had ordered goods through a catalogue to the value of about £1,000 in the name of a friend of mine, and a number of our friends had fallen out with him about this. I had split up from [the Father] and we had separated. [The Father] however was still living at my mother's home and I had moved out and was staying with friends. Part of the reason for us splitting up was I could not stop thinking about the importance of getting to the bottom of what happened to L. In the time since L had been injured I had been asking [the Father] if there was anything that I did not know about what he had done to L (even if it was done accidentally) and he would always have a go at me for asking him that question. But [the Father] has never actually asked me if I have ever done anything to L.
6. By 9th February 2011 I was therefore not living in my...
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