Re G (A Minor) (Care: Evidence)
| Jurisdiction | England & Wales |
| Judgment Date | 06 May 1994 |
| Court | Court of Appeal (Civil Division) |
STAUGHTON, WAITE, AND PETER GIBSON, L JJ
Appeal – fresh evidence – child case – whether fresh evidence would be admitted.
Care proceedings – evidence – death of mother's first child as result of injuries caused by cohabitee – mother found to have failed to protect child – mother found to have caused bite marks to child – fresh evidence indicating same conclusion may not have been reached – whether fresh evidence should be admitted – whether case should be remitted for rehearing.
Evidence – child case – fresh evidence becoming available after hearing and making of care order – whether appeal court should order rehearing.
The mother had a child, a boy, who was born in November 1990. Soon after the birth of that child the mother went to live with a man ("the cohabitee"). That man was not the father of the child. In February 1991 the child died as a result of serious injuries he had suffered and which were probably caused by shaking. The child also had injuries caused by biting. Criminal proceedings were taken against the mother and the cohabitee. In the course of the criminal investigation an odontologist, on the material then supplied to him, could neither include or exclude either the mother or the cohabitee from having been responsible for the bite marks. There was no attempt by the prosecution to identify either the mother or the cohabitee as the author of any of the child's injuries by scientific tests. During interviews the cohabitee had identified himself as the sole perpetrator of the child's injuries. He was convicted of manslaughter and sentenced to seven years' imprisonment. The mother was convicted of wilful neglect and placed on probation for two years.
Subsequently the mother resumed an association with the man who was the deceased child's father. In December 1992 the mother gave birth to a second child, a girl. An interim care order was made the day after the child's birth. The local authority sought a care order with a view to placing the child with a permanent substitute family with a view to adoption.
The hearing of the local authority's application began before Johnson, J on 17 May 1993. On 24 May a report from a different odontologist, which had been obtained by the Official Solicitor, was handed in and he gave evidence the same day. He stated that the bite marks on the deceased child had a far higher degree of probability of being those of the mother than of the cohabitee. This opinion was based upon material which was significantly different from that available at the time of the criminal investigation and to the first odontologist. It was not practical for the case to be adjourned to enable the mother's advisers to seek another opinion and the case proceeded.
The Judge found that the mother had inflicted injury upon the deceased child by biting him. He also found that the second child would be at risk from future failure on the mother's part to protect the child from injury by others. Consequently, the Judge made
a care order.
Subsequently, the mother's advisers made contact with the first odontologist who examined all the relevant material including that made available to the second odontologist. His opinion was that, even with the further material, he was unable to include either the mother or the cohabitee as being the person responsible for the bite mark injuries to the deceased child.
The mother was granted leave to appeal out of time and applied for the evidence of the first odontologist to be admitted and for the case to be remitted for rehearing.
Held – allowing the appeal: The balance of advantage, when regarded both from the standpoint of the child and from the standpoint of fairness and justice to the mother, fell in favour of securing to the mother the maximum opportunity of refuting the charge of direct violence to her baby if she could. The finding that the mother had bitten the deceased child, and the evidence of the second odontologist upon which that finding was principally based, played so crucial and central a part in the whole reasoning of the Judge that it would be unsafe to assume that, without them, he would necessarily have reached the same conclusion on the risks of failure to protect. The case would therefore be remitted for rehearing.
Per Waite, LJ: In family cases there could be listing problems and the penalty for re-fixing or adjourning a hearing could involve many weeks or months of delay; the procedure did not require precise pleading; and the rules of evidence and procedure were commonly relaxed to take account of the demands of the welfare of the child. Given these special characteristics, there were bound to be occasions when routine evidential or procedural rules were broken where it was imperative to reach an early conclusion for the sake of the child concerned. It was no doubt in recognition of this that the principle had been developed that the rule in Ladd v Marshall [1954] 1 WLR 1489 regarding the admission of fresh evidence on appeal was applied less rigorously in children cases than in others.
Statutory provisions referred to:Children (Admissibility of Hearsay Evidence) Order 1991
Children and Young Persons Act 1933, s 1.
Family Proceedings Rules 1991, r 4.17.
Offences Against the Person Act 1861, ss 18 and 47.
Cases referred to in judgments:Ladd v Marshall [1954] 1 WLR 1489.
Newham London Borough Council v AG[1992] 2 FCR 119.
W (Minors) (Wardship: Evidence), Re [1990] FCR 286.
Allan Levy, QC and Roger Gray for the mother.
Brian Jubb for the local authority.
Anna Pauffley and Barbara Mills for the child and Official Solicitor as guardian ad litem.
LORD JUSTICE WAITE.The subject of this appeal is a baby girl, G, born on 7 December 1992. Her mother appeals against a care order made by Johnson, J on 27 May 1993 in favour of the local authority which proposes to place G
permanently for adoption. The Judge held that G was likely to suffer significant harm if brought up by her natural mother, such likelihood being attributable (in the terms of the threshold requirement in s 31(2)(b) of the Children Act 1989) to the care likely to be given to her not being what it would be reasonable to expect a parent to give.
The case has a tragic background. The mother was born in 1970 into circumstances of acute social disadvantage. She was the youngest of six children of a mother living in East London. Her father left the home when she was only 6 months old. In her early years she experienced a period in care while her mother served a prison sentence for offences of dishonesty. Two of her brothers received prison sentences for crimes of violence, and one of them, after his release, was murdered in the course of a fight with the woman with whom he was living. By her early teens the mother was experiencing difficulty in relating to her mother's new male companion, and she was unsettled and disruptive at school. At the age of 15 she was placed with a foster-mother to whom she became very attached. Then the foster-mother died unexpectedly.
It is not surprising that the mother, although she is (as the Judge found) an intelligent and likeable person, emerged from all these experiences suffering from immaturity, pathetically low self-esteem, and from a craving for affection which left her vulnerable to male exploitation and submissive to male violence. At the age of 18 she met and formed an association with a man, S, who was sentenced to four years' youth custody for a serious offence of violence. She went through a ceremony of marriage with him, while he was detained. Then, while S was still in custody, she met Mr T – a man described by the Judge as irresponsible and self-centred. He was living with a woman by whom he had one child and was shortly to have another. Those responsibilities did not inhibit him from starting a sexual relationship with the mother, as a result of which she became pregnant by him.
A child of that association (to whom I will refer as "C") was born on 9 November 1990. The mother had obtained a council flat tenancy which she shared with her friend DT. Soon after the birth, however, the mother met and went almost immediately to live with a man, H, whom the Judge described as a violent and unpleasant thug, addicted at that time to drugs. By the beginning of December 1990 the mother had moved in to H's flat with C. DT continued to visit her.
On 2 February 1991 the mother and H brought C to the casualty ward at the local hospital, saying that the baby could not get his breath. Injuries were noted on the baby on admission. The medical team began cardiac massage and ventilation procedures which achieved a cardiac output but failed to induce breathing. C was transferred to the intensive therapy unit at another hospital, where further unsuccessful attempts were made to induce breathing and to release the intercranial pressure which had by then been detected. The baby was pronounced dead at 10.25 am on 3 February 1991.
The cause of death certified by the pathologists who carried out a post-mortem on C was traumatic sub-arachnoid haemorrhage probably caused by shaking. A number of injuries were found on the baby consistent with his having been shaken or pulled up by the ears. There were injuries, also, of a different kind – notably bite marks on his cheeks and forearm and other marks on his ankles which might have been produced by biting.
A criminal investigation was immediately undertaken by the police. Statements were taken from numerous witnesses, including friends like DT and relatives who had seen the child in the last few weeks of his life, as well as from the hospital authorities who spoke of the response and behaviour of the mother and H when first observed and questioned at the hospital.
There were interviews with the mother and Mr H, at which they gave varying accounts of the origins of C's injuries. Unusually, there was no attempt to shift or share the blame. Each was willing to take sole...
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