Re K (Non-Accidental Injuries: Perpetrator: New Evidence)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall |
| Judgment Date | 27 August 2004 |
| Neutral Citation | [2004] EWCA Civ 1181 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B1/2004/1698 & 1699 |
| Date | 27 August 2004 |
[2004] EWCA Civ 1181
Lord Justice Wall
Lord Justice Neuberger
Case No: B1/2004/1698 & 1699
LS03CO5574
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Leeds District Registry
His Honour Judge Garner and Mr Recorder Peter Collier
Royal Courts of Justice
Strand, London, WC2A 2LL
Michael Harrison QC and Valerie Sterling (instructed by Ramsdens Solicitors) for the Appellant
Jeremy Posnansky QC and Nicola Saxton (instructed by Kirklees Metropolitan Council) for the 1st Respondent
Michael Bourdon (instructed by Eaton Smith Solicitors) for the 2nd Respondent
Alison Grief (instructed by Ridley Hall Solicitors) for the 3rd Respondent
Pamela Lawrence (instructed by Parker Bird) for the Guardian
Introduction
This is the judgment of the court.
This case concerns two children, whom we will identify by the initials A and M. Both children were the subject of care proceedings, and subsequently freed for adoption. A had been found in the care proceedings to have suffered serious non-accidental injuries. Their mother wished to re-open the judge's findings as to perpetrator.
At the conclusion of the argument on 24 August 2004, we announced that their mother's application for permission to appeal would be granted; that the appeal would be allowed; that the orders freeing both children for adoption would be set aside; that the children would be made the subject of interim care orders in favour of Kirklees MBC (the local authority) and that the question of the identity of the perpetrator of the non-accidental injuries to A identified by HH Judge Garner on 11 December 2003 should be remitted to a judge at first instance (preferably HH Judge Garner if available) for further investigation and reconsideration.
By a happy chance, the Designated Family Judge for Leeds, HH Judge Peter Hunt, was sitting in the Royal Courts of Justice on 24 August 2004, and following an informal approach from this court, he was kind enough to agree that he would hold a directions hearing in Leeds on Thursday 2 September 2004 at 10.00am with a time estimate of one hour, so that the future progress of the case could then be time-tabled, and a date and judge allocated for the remitted hearing. We are grateful to Judge Hunt for his most helpful co-operation.
On 24 August 2004 we stated we would give our reasons at a later date. This we now do.
The applications before the court
Before this court are two applications by a mother, DK (whom we will call "the mother") (1) for permission to appeal and (2) for an extension of time for permission to appeal. The applications relate to her two children A and M, who are both girls. A was born on 3 December 2002 and M on 23 December 2003. Their father is the mother's husband, PS. We will refer to him, henceforth, as "the father".
The parents are Sikh. The father was born in England on 10 April 1973, so he is 31. Apart from extended visits to India, has lived in England all his life. He was educated here to A level. The mother was born on 4 October 1982. She was born and brought up in India. She does not speak English. She told the guardian that she had studied at college, but that those studies had not been completed because of her impending marriage to the father.
The parents were married on 28 May 2001 in India. It was an arranged marriage. The mother was 18 and the father 28. The father had been married twice previously, both marriages ending in divorce. As with the current marriage, both of his previous marriages were arranged; both wives were Indian and came to England following a ceremony of marriage in India.
Following the marriage, the mother came to England on 16 October 2001 when she was 19. She went to live with the father in his parents' household. A was born on 3 December 2002. On 17 January 2003, following a previous admission to hospital five days earlier from which she had been discharged on 14 January, A was admitted to hospital for a second time, where a series of investigations by medical staff led to the conclusion that she had suffered serious non-accidental injuries. Care proceedings followed, and A was placed with foster parents under a series of interim care orders. She has thus been in foster care for about 18 months.
The first order in time against which the mother wishes to appeal is that which incorporates findings of fact made by HH Judge Garner sitting in Leeds on 11 December 2003 in the first limb of what has become known as a split hearing in the care proceedings relating to A brought by the local authority. In that first, fact-finding limb of the proceedings, Judge Garner found that A had suffered extremely serious non-accidental injuries and in particular that she had been shaken on at least two separate occasions. She had also suffered a metaphyseal fracture of the distal right tibia caused either by a severe shaking or forceful yanking with the leg gripped at the ankle.
On 20 April 2004, in the second or disposal limb of the care proceedings. Mr. Peter Collier QC, sitting as a Deputy Judge of the High Court made a care order in relation to A, and also freed her for adoption. By that time, of course, M had been born and had been removed from the mother on the day after her birth under an interim care order, to which she remained subject. On the same day, Mr. Collier made a full care order in relation to M and also freed her for adoption. The mother now seeks permission to appeal against the orders freeing the two children for adoption, and the replacement of the full care orders by interim care orders pending a reconsideration of the question of the perpetrator of the injuries to A.
The hearing before Judge Garner
There was no doubt whatsoever that A had suffered significant harm within section 31(2) of the Children Act 1989. The critical question for Judge Garner was, accordingly, whether or not the perpetrator of her injuries could be identified. There were, on the evidence presented to the judge, only three candidates. These were; (1) the mother; (2) the father; and (3) the children's paternal grandmother, BK (the grandmother) in whose household the parents and A were living. Also living in the same household was the paternal grandfather (the grandfather) . However, before the judge, there was no suggestion that he had had anything to do with the care of A, and it was not suggested that he was or could have been a perpetrator.
In a clear and well crafted judgment to which we would wish to pay tribute, Judge Garner carefully analysed the medical evidence, which was unanimous in concluding that A had been the victim of the serious non-accidental injuries identified by the medical evidence. His findings on this part of the case have not been, nor could they be challenged. The judge then listened carefully to the oral evidence of the mother, the father and the grandmother, and stated his conclusions in paragraphs 66 to 70 of his judgment. We set them out in full.
66. I have considered all the reported accounts, statements and then the evidence of the mother, father and grandmother with care. There are not only variations of account prior to their evidence. In their evidence itself there were movements apparently towards an end. Mother moved to emphasise her role as primary carer and to express full confidence in the family. Father moved to reduce his own role almost to absurdity and also to reduce grandmother's role even below that described by her. Grandmother showed imaginative adjustments to a number of phrases not least what "once or twice" meant at various times.
67. The truth has a consistency, which enables accounts given at different times to match each other and form a laminate cogency. Precisely the opposite has applied in the case of the mother, father and grandmother. Overall there is no evidence in the case of sufficient cogency for me to find any of the competing facts contended for on behalf of mother, father and grandmother although I go very near, as will be clear, to the findings sought by mother about a conspiracy by father and grandmother. It is wholly clear that A was in the overall care of mother, father and grandmother when she was injured and, on any view, any of them could have been the perpetrator. There is no proper basis actually to exclude any of them although feelings and suspicions could be another matter.
68. I shall, therefore, find in a moment, as sought by the local authority, that all three must be considered perpetrators. I am also driven to conclude that there has been a conspiracy to conceal the truth over what happened on at least two occasions in that household. The truth remains locked within that household and unless and until it is let out future assessments will be difficult, if not impossible, exercises. The partners in the conspiracy have been mother, father and grandmother and could, I suppose, extend to grandfather as well. I accept the truth of the note of the interpreter's conversations with mother.
69. I am firmly of the view that whilst father and grandmother have been willing partners in that conspiracy, mother herself has been an unwilling partner. So long as she remains in that conspiracy, the consequences will be serious for her as for the others. I will set out the numbered findings.
(1) A sustained the following injuries: (a) bilateral subdural haematomas; (b) a right temporal sheering injury; (c) bilateral retinal and pre-retinal haemorrhages; (d) a metaphyseal fracture of the distal right tibia. All of those I now call "the injuries".
(2) Each of the injuries was non-accidental and could not have occurred by unintentional rough handling.
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