Re W (Children)
| Jurisdiction | England & Wales |
| Judgment Date | 18 June 2008 |
| Neutral Citation | [2008] EWHC 1188 (Fam) |
| Docket Number | Case No. LV06C07394 |
| Court | Family Division |
| Date | 18 June 2008 |
[2008] EWHC 1188 Fam
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
MANCHESTER DISTRICT REGISTRY
Civil Justice Centre
1 Bridge Street West
Manchester
M60 9DJ
Mr Justice Mcfarlane
Case No. LV06C07394
In the matter of:
Counsel for the Local Authority: MR HAYDEN QC
Counsel for the Mother: MRS CROWLEY QC
Counsel for the Father: MR KEEHAN QC (Leading Counsel) and MRS HUGHES (Junior Counsel)
Counsel for the Children/Guardian MR HAGGIS
JUDGMENT APPROVED BY THE COURT
THE JUDGE: This is a judgment given on a number of preliminary issues that have arisen in the course of a fact finding hearing in care proceedings relating to some seven children, all of them the children of Dawn W. The fact finding hearing in particular focuses on allegations of physical abuse to those children, or some of them, and in particular a fracture caused to Rhys H, who was born on 27 th September 2004.
Background
The principal parties to the proceedings, other than the Local Authority, St Helen's Council, and the children who are represented through their guardian, are Dawn W, the children's mother, and Andrew G, who was her partner at the time that injuries to Rhys were discovered in 2006 and who is the father of the youngest of the children, Connor W, born on 18 th January 2007, after these proceedings were commenced.
The focus of the fact finding hearing is to be on the physical injuries found on Rhys on 8 th March 2006, principal of which is a spiral fracture to the lower left tibia, but in addition to that fracture, a large number of bruises were seen on Rhys' body over his head, face, arms, trunk and legs, and, in all, the Local Authority assert the timing and presentation of the bruises and the fracture are such that there are some eight different occasions when it is probable that he was assaulted. In addition, the fracture is likely to have taken place in or around 4 th March 2006 and it is accepted that neither of the principal carers, Miss W or Mr G, sought medical attention until 8 th March.
Other allegations that fall to be considered relate to accounts given of physical behaviour, abusive behaviour, to Kimberley, Kayleigh and Adam, the older three children by Mr G. In addition, as between the two adults themselves, Miss W alleges that there were occasions, in particular during 2006, that Mr G was violent towards her. Those allegations relate to the period after the injuries to Rhys were discovered. Mr G denies most of the allegations but does admit an occasion of domestic violence against Miss W in July 2006 where he saw some letters that she had written which caused him distress and he lost his temper and physically assaulted her. That incident led to a criminal charge of assault occasioning actual bodily harm, which in the course of proceedings relating to Rhys' care were before the Crown Court, and in relation to that assault occasioning actually bodily harm offence, he pleaded guilty.
The care proceedings, for some reason – and I flag up the fact that the court will need to be given an explanation as to this delay – were not commenced until 29 th November 2006 by which time the criminal process relating to the allegation of physical abuse causing the injury to Rhys' leg and child cruelty in relation to Miss W's activities, and allegations of the causation of the bruising to Rhys were before the criminal court.
On 24 th January 2007 Mr G pleaded guilty on a limited basis to an offence of causing grievous bodily harm under Section 20 of the Offences against the Person Act in relation to the fracture to Rhys' leg. The prosecution did not proceed against him in relation to any of the other unrelated physical injuries seen on Rhys and he was sentenced in due course to a total of 30 months' imprisonment in March 2007 for that offence of assault on Rhys and the offence of assault occasioning actual bodily harm on Miss W.
Miss W pleaded guilty on 24 th January 2007 to an offence of child cruelty based on her failure to protect Rhys and failure to seek medical attention for him and she received a two-year community sentence.
The Official Solicitor became involved in these proceedings, acting on behalf of Mr G, after the solicitors that were instructed for him in the care proceedings wisely sought professional opinion from a psychiatrist, Dr Davenport. On the basis of Dr Davenport's appraisal, which at that time, in March 2007, was that Mr G lacked capacity to take part in this litigation, an order was made by His Honour Judge Duncan on 11 th June 2007 inviting the Official Solicitor to act on Mr G's behalf. The Official Solicitor accepted that invitation. In the conventional way he instructed the solicitors who were already acting for Mr G and they in turn have instructed junior and leading counsel. That model of representation has been in place since the summer of 2007, however further expert assessment has taken place on the general psychological functioning of both of these adults, Dawn W and Andrew G, and as a result of that appraisal and the re-instruction of Dr Davenport, a view was formed at an experts meeting on 30 th May 2008 (and therefore less than two weeks before the start of this hearing), that view being a unanimous view of those experts, that Mr G now does have capacity to conduct this litigation without the intervention of a litigation friend in the form of the Official Solicitor.
The principal driver that caused the change of professional view was that Dr Davenport visited Mr G, who still serves the term of imprisonment to which he was sentenced, and took the view that he had changed to a degree in his presentation sufficient for her to say that he no longer lacked litigation capacity.
The Issues
The issues that this court has to determine at this preliminary stage are twofold. First of all, although I will deal with it second, whether Mr G lacks litigation capacity now to take these proceedings forward. The other issue relates to his guilty plea to the grievous bodily harm offence on Rhys. Those acting on Mr G's behalf submit that the court should not rely upon his conviction for that offence as establishing his identity as the perpetrator of the fracture to Rhys' leg. The submission is that the court is not estopped from going behind that plea of guilty and resulting conviction and that it is right for the court at this fact finding hearing to open up the factual issue of the causation of Rhys' leg fracture and the identity of the perpetrator so that that can be litigated within the fact finding process, alongside all of the other injuries to Rhys and other allegations that are going to be placed before this court.
The submission made on behalf of Mr G is really on two levels. First of all, the submission is that there is sufficient evidence for this court to say that as at January of 2007, when he entered his guilty plea, Mr G lacked litigation capacity sufficient to give instructions that he was going to plead guilty and indeed sign the necessary acceptance of guilt. Secondly, and at a lower level in any event, those acting on behalf of Mr G say that when this court looks at all the circumstances that are now before it, it is unsafe to rely upon the plea of guilty as indicating the truth of the causation of that injury and that, applying the law that this court does in care proceedings, on the authorities it is right to reopen that factual issue.
It is right to record that during the course of the expert evidence over the last two days, it seemed that a question mark was also being placed over the litigation capacity of Miss W in these proceedings. Further assessment has in fact taken place in the course of the proceedings, and the court is grateful to Mr Glasgow, the psychologist who undertook further assessment and all parties and indeed the court are now satisfied that Miss W does not lack litigation capacity provided that she continues to receive the appropriately focused and supplied support that she gets from her legal team and follows the very sensible practice that she has adopted of noting down key matters that she has heard in the evidence and/or wants to raise with her lawyers.
The Legal Context
The law relating to litigation capacity has to be looked at both in the context of the current law under the Mental Capacity Act 2005, but also the law as it was in January 2007 before that new legislation came into force, when Mr G was giving instructions to his legal team. Fortunately this court has the benefit of a very recent decision of the Court of Appeal in the case of RP v Nottingham City Council & The Official Solicitor [2008] EWCA Civ 462, handed down by the Court of Appeal on 8 th May this year. Characteristically Lord Justice Wall uses the opportunity of the court being seized of that case to review, with the assistance of the Official Solicitor, the entire landscape of mental capacity in relation to litigation and the role of the Official Solicitor. It is an extremely useful judgment. However, on the issue of litigation capacity, the section of the judgment that is of most relevance for this decision today starts at paragraph 111 and, again, the Court of Appeal were in the fortunate position of that court in a different constitution having considered the issue at length some six years earlier in the case of Masterman-Lister v Brutton & Co (No's 1 and 2) and Masterman-Lister v Jewell & Another [2002] EWCA Civ 1880; [2003] EWCA Civ 70.
The quotations therefore from RP v Nottingham City Council that I now make refer to Masterman-Lister as the summary of the law in relation to litigation capacity as it was prior to the implementation of the 2005 Act. I propose to...
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