Re T (Care Proceedings: Appeal)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wilson,Lord Justice Rimer |
| Judgment Date | 20 November 2009 |
| Neutral Citation | [2009] EWCA Civ 1208 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 November 2009 |
| Docket Number | Case No: B4/2009/1945 |
[2009] EWCA Civ 1208
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION
HIS HONOUR JUDGE O'DWYER
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Mark Potter, the President of the Family Division
Lord Justice Wilson
Lord Justice Rimer
Case No: B4/2009/1945
Lower Court No: FD08000390
Grahame Richardson (instructed by Paul Robinson Solicitors) for the Appellant
Sarah Davies (instructed by H E Thomas & Co) for the Respondent Father
Judith Charlton (instructed by its Law and Governance Department) for the Local Authority
Damian Stuart (instructed by Sternberg Reid) for the Child, by his Children's Guardian
Hearing date: 5 November 2009
Sir Mark Potter P:
This case concerns an infant male child, T, born on 15 July 2008 and now some 16 months old. On 18 September 2008, when he was only 2 months old, he was admitted to hospital with multiple injuries which I will describe below. He was discharged on 22 October 2008 into foster care pursuant to an interim care order obtained by the respondent local authority (“the LA”) on 3 October 2008.
We are concerned with an application by T's mother (“the mother”), who seeks permission to appeal against the findings of His Honour Judge O'Dwyer in a judgment dated 7 August 2009, following a 5-day fact finding hearing concerning the causation of T's injuries in the course of the care proceedings.
The second respondent to this application is T's father (“the father”) with whom the mother was living at the time that T's injuries were sustained and when he was admitted to hospital. The third respondent is T, by his guardian (“the guardian”) appointed in the care proceedings.
T had been briefly admitted to hospital on two previous occasions shortly before 18 September 2008, namely 6 August (a day visit) and 11 August (a five day stay), but no serious injuries were found at the time.
On 6 August 2008 he was admitted to hospital following the parents reporting a “limp and floppy episode”. At that time some concern was expressed at the time of his admission that there was evidence of a cut lip sustained on or shortly before 6 August. There was a linear bruise on the right buttock similarly sustained shortly before that date. No explanation from the parents was forthcoming in respect of those injuries and it is not in dispute they were not followed through by health professionals at the time.
On 11 August 2008 T was again admitted following what the parents reported as a further “limp and floppy episode”, being discharged on 16 August 2008. The medical assessment by the treating professionals at that time in respect of both episodes, each of which was said by the parents to have occurred around or shortly after feeding, was that T was suffering from reflux.
On 13 August 2008, T sustained an injury while in hospital which caused a bruise to his left forehead. He was in the immediate care of his father on the ward at the time. There were no other witnesses.
On 2 September 2008, T was seen by a health visitor who noted that the right side of his head was swollen. She advised the parents to seek medical advice but did not oversee it herself. T did not go to hospital. Experts later diagnosed that T had suffered a right sided complex t-shaped fracture of the skull during the week ending 2 September.
On admission to hospital on 18 September, T was found to have suffered bilateral frontal haemorrhages, acute subdural blood and acute blood in the posterior fossa, all of which were evidence of a left sided injury which occurred on or before 18 September 2008 and were noted as likely to have precipitated the deterioration which led to T's admission to hospital.
Subsequent x-rays on 24 September 2008 revealed right sided posterior fractures of T's fifth and sixth ribs, diagnosed as having occurred three to six weeks earlier i.e. during the period 13 August – 3 September 2008.
Finally, there was also a bruise under T's left eye diagnosed to have occurred on or shortly before 18 September, the date of admission.
Both parents have been charged with offences of causing grievous bodily harm under section 18 and section 20 of the Offences Against the Person Act 1861 and with child cruelty. They have pleaded not guilty and are due to be tried in January 2010.
In view of the age of T and the need to settle his future placement as soon as possible, it was not a case which could wait the outcome of the criminal proceedings to establish responsibility for T's injuries and, the day before T's discharge from the hospital, a fact-finding hearing was listed for hearing on 2 March 2009, the first date upon which five days were available. Regrettably, it was not completed within that time. The father suffers from dyslexia and, on 6 March 2009, the fact finding hearing had to be adjourned in the course of his oral evidence for his representatives to take him through the police disclosure which had not hitherto been done. His counsel then fell ill and the matter had to be adjourned for the obtaining of transcripts of evidence to assist counsel newly instructed in the matter. It was relisted for the first available date, namely 27 May 2009 when the evidence was concluded, submissions taking place on 27/28 May. The case was then adjourned for judgment which was unfortunately delayed for some nine weeks, being handed down on 2 August 2009. The Judge held both parents responsible for T's injuries in terms to which I will shortly turn.
At a hearing for further directions on 21 August 2009, the mother gave no indication that she would seek to appeal. Both parents agreed, and the Court ordered, the instruction of a consultant psychiatrist to undertake a forensic risk assessment of the parents and any other family member put forward as prospective carers for T, it being anticipated that such assessment would be available for a review before the Judge on 13 November 2009. The 21 day period for appeal lapsed on 28 August 2009. An appeal was lodged on 4 September 2009. It was delayed by reason of the absence on holiday of counsel whose advice was required for the purposes of applying for public funding and the time taken in making the necessary application.
On 19 October 2009, Wall LJ adjourned the mother's application for permission to appeal, directing that it be heard on notice to the other parties for hearing before the Full Court. He observed that it might well be that the Judge's conclusions could not be faulted, but he identified as unusual features the delay occasioned by the split hearing and the Judge's adverse comments on the conduct of the health visitor involved in the case, indicating that these failures made it appropriate for the case to receive the attention of the Full Court.
In the event, I do not consider that the Judge's conclusions can be faulted; but I will first say a word or two on the matters identified by Wall LJ. The reference to the health visitor arises in this way. Her evidence was criticised by the Judge in his judgment on the basis that it was “inconsistent, undocumented and misleading”. He was particularly critical about her identification of a “boggy swelling” on the right side of T's head on 2 September which he said should have been the subject of rapid child protection and health initiatives, but in respect of which she failed to take effective action. He recorded that the health visitor herself admitted that she should have ensured that T was taken to hospital immediately and should have communicated his condition to her successor health visitor (which she failed to do). The Judge went on to criticise the standard of investigation undertaken by the hospital following T's admissions on 6 August and 11 August. These matters indeed give rise to concern. However, having been recorded by the Judge in his judgment, on 21 August 2009 they were the subject of a direction by him for disclosure of his judgment to the chairman of the local Childrens' Safeguarding Board, the Director of Childrens Services for the particular local authority and the chairman of the relevant Hospital Trust, for them to consider the appropriateness of the procedures followed in the case of T and to undertake an assessment of the adequacy of their procedures generally. In those circumstances, it does not seem to me that there is anything which this Court can usefully add by way of consideration on appeal.
So far as the delays in the split hearing are concerned, they are both unusual and unfortunate. They have meant that the care proceedings, which should by now have been finally dealt with in the interests of a child who has now spent 14 of the first 16 months of his life in foster care, are still unresolved. Further they are now pushing up against the date at which the parties will be tried in criminal proceedings which, so far as the question of the actual perpetrator is concerned, may establish the position beyond reasonable doubt. In these circumstances, the Judge will have to consider whether the finalisation of the care plan should await the outcome of the criminal trial.
The delay between delivery of the submissions and delivery of the judgment was also regrettable. We have been told that the Judge made clear that it resulted from pressure of work, namely the volume of cases being listed before him on a “back to back” basis, thus impinging on the time available to him for preparation of a full judgment. It also appears that there was some delay in listing the judgment for hand-down, once prepared. Despite the lapse of time in this...
To continue reading
Request your trial
-
Re J (Children) (Care Proceedings: Threshold Criteria) [SC]
...that Y perpetrated the injuries is stronger than the real possibility that X did so. In a case in the Court of Appeal, namely In re T (Care Proceedings: Appeal) [2009] EWCA Civ 1208, [2010] 1 FLR 1325, I suggested, at para 62, that a judge who had made such a suggestion might have been tr......
-
Re S-B (Children) (Care Proceedings: Standard of Proof)
...(Fact-finding Hearing: Burden of Proof), In re [2008] EWCA Civ 1261; [2009] 1 FLR 1177, CAT (A Child (Non-accidental Injury), In re [2009] EWCA Civ 1208; [2009] 3 FCR 631, CAAPPEAL from the Court of AppealThe mother, S-B, appealed with permission granted by the Supreme Court (Lord Hope of C......