Re F (Minors) (Wardship: Jurisdiction)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,LORD JUSTICE DILLON,LORD JUSTICE NOURSE |
| Judgment Date | 18 December 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J1218-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 87/1306 |
| Date | 18 December 1987 |
[1987] EWCA Civ J1218-2
Lord Justice Purchas
Lord Justice Dillon
Lord Justice Nourse
87/1306
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN ORDER OF MR JUSTICE HOLLIS
Royal Courts of Justice
MR SIMON HAWKESWORTH Q.C. and MR M.J. TAYLOR, instructed by Messrs O'Rourke, James, Scourfield & McCarthy, appeared for the Appellants (Plaintiffs).
MR IAN FAIRWOOD, instructed by the Solicitor to the Cleveland City Council, appeared for the Respondents (Defendants).
Before we deliver the judgments in this appeal we propose to take the course that Mr Justice Hollis took in the court below and invite the gentlemen of the press and others who may be reporting this case to do so in a way that will not identify the children or the families involved in the case. We take that course rather than make a formal order because we do not think that a formal order is necessary.
This is an appeal by the parents of three small girls against an order in wardship made by Mr Justice Hollis at Leeds on 30th July 1987. I shall refer to the three girls as Katie, who was born on 2nd May 1980, Laura, who was born on 28th May 1985, and Emma, who was born on 29th October 1986.
In the judgment from which this appeal was brought the learned judge was in fact dealing with two families, but this appeal is concerned only with the family described as "family A".
The order provided that the three children should remain wards of court during their minority or until further order, and that they be committed to the care and control of the parents. There was a further provision, which reads:
"UPON the [parents] undertaking to take all three minors to the family general practitioner for regular checkups it is directed that: All three minors be examined by the general practitioner within the next month and at three monthly intervals thereafter."
Then there are other orders with which we are not concerned.
There have in fact been two examinations following upon that order. These were carried out by Dr Waters. His affidavit has been admitted before us. It was evidence that clearly arose since the hearing, and it was proper that we should receive it. No objection was taken to its admission. That affidavit discloses that the two examinations took place, one on 10th August 1987, and the second on 26th October 1987, when all three children were found to be fit and well.
This appeal lies within a very small compass. Mr Hawkesworth, who has appeared for the parents, submits firstly, that there was no evidence upon which the learned judge was entitled to continue wardship (that is particularly in the case of Katie and Laura), secondly that in the case of Emma his concern was directed towards her medical condition, which had been, and will continue to be, subject to medical attention in any event, and thirdly that the wardship jurisdiction of the court is neither in the interest of the child nor necessary for her protection. That third ground was not pursued to any great extent, it being apparent that the purpose of the order providing for the future examination of these children was to reassure and secure the position against some possible interference with the children which would affect the wardship position and which would be detected by the general practitioner.
Mr Hawkesworth also submitted that the learned judge failed to consider the effect of continuing wardship upon Katie, who had reached the age where she was conscious of events and would not understand fully the position of remaining a ward. She would certainly be conscious of, and possibly affected by, the continuing medical examinations. She would also quite probably reflect the continuing stress in her parents caused by the continuation of the wardship, with the inevitable anxiety in the parents resulting from that position.
It is fair to say that that aspect of the case was not argued before the learned judge. As he said in his judgment, the cases with which he was dealing—families A and B and a third family, whose case was adjourned—were the pilot cases of a considerable number of wardship applications which had arisen as a result of events that were taking place in Cleveland of which there is general knowledge. These two cases were selected for an early hearing. The matter was dealt with at short notice with a great deal of evidence that was put before the learned judge for which he expressed his gratitude at the beginning of his judgment.
Mr Fairwood for the defendant Council submits that the judge was entitled as a matter of discretion to follow the advice, tendered certainly by certain experts who gave evidence before him, to "play safe" by providing for a limited further control in the form of the medical inspections in the continuing wardship to which I have referred. But he frankly conceded that after two more visits to the doctor and there being no adverse finding upon such occasions, the Council themselves would consider that the time had been reached when the children should be dewarded.
Mr Hawkesworth, in the interests of all three children and maintaining a sound family unit, in respect of whom in the past there have been no allegations, urges the court that the children should be dewarded forthwith.
The history can be shortly related, and one can start, for practical purposes, at the beginning of 1987. Katie and Laura had grown up as normal, well-adjusted little girls. Emma had not thrived so well, and I now read from the transcript of the judgment at page 11:
"Family A have three children, all being girls. K is seven, L two and E nine months old. The father is a professional man in a position of trust. E was rather a floppy baby and she has been described as being hypotonic, which really means having some lack of muscle control. She suffered from chest infections which affected her breathing and ability to suck, and therefore her ability to feed. She was an in-patient in hospital in January of 1987 and again in April 1987.
"On 12th June, 1987 her mother took her back to the hospital to see Dr. Higgs on a routine check. She was—that is E was—at that time suffering from a chest infection and so Dr. Higgs decided that she should be kept in hospital for a time in any event. While looking at and examining her, Dr. Higgs abducted her hips because there had been some concern about her hip movements in the past and in doing so she says that she noticed what appeared to be bruising on her anus. She carried out a further examination later the same day, and according to her finding E's anus was discoloured, the skin of the anal verge was thickened, there were three fissures and she also displayed reflex relaxation and dilatation of the anal sphincter. Dr. Wyatt confirmed that diagnosis.
"The next day, 13th June, Dr. Higgs saw the mother again and told her that she thought there was something wrong with E's bottom and the mother then said, I am satisfied, that E had been constipated for some three weeks and had been straining when trying to pass a motion." I leave the transcript.
Dr Higgs asked the mother to bring the other two girls in for the purposes of an examination. They arrived the same afternoon, and, after waiting to see Dr Higgs, they were examined. As a result of the examination and the advice given by Dr Higgs, with the details of which I will not burden this judgment at the moment, the Council took the only course that they could take in the circumstances, and that was to apply for place of safety orders. The two elder children were placed in a short-term foster parents home. Dr Higgs examined them again there, and then examined them, or at least examined Katie, again on 23rd June. That is significant, because on 24th June, as a result of action very wisely taken by the parents, Katie was examined by a Dr Paul, a general practitioner who has been engaged in clinical forensic medicine for some 31 years and has had experience of dealing with and examining children who were suspected of being sexually abused since 1958.
So the stage was set, and the matter came before the learned judge. There was a lengthy hearing. Much of the evidence was professional evidence given by Dr Higgs, Dr Wyatt, Dr Paul—all of whom had examined the children—and also by experts who had not examined the children but had examined photographs taken of the children and gave the judge the benefit of their expertise in these matters—Dr Franklin, Dr Taitz and Dr Wynne. I expect that I have left out some, but the result was that the judge was faced with a large body of professional evidence. He also had evidence of the family, and it is right to say at once that throughout this case there has not been one iota of evidence that could reflect any doubt or reflect upon the suitability of the parents as custodial parents.
The learned judge made important findings to which it is convenient now to refer. He recorded ten features which were common to both cases which were before him. I will read those out:
"1. In the case of each child, the diagnoses of sexual abuse is derived from a clinical examination alone.
"2. In the case of each child, the evidence having been distilled, the diagnosis is of an external penetration of the anus.
"3. None of the children has had a deprived upbringing.
"4. None of the children show any of the signs of a disturbed child, such as bed-wetting, withdrawal symptoms, overt sexuality or other behavioural problems.
"5. None of the children of school age has been noted at school as behaving other than normally and averagely.
"6. None of the children have complained of having been...
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