Re X (A Child) (No 5)
| Jurisdiction | England & Wales |
| Judgment Date | 14 December 2018 |
| Neutral Citation | [2018] EWHC 3442 (Fam) |
| Date | 2018 |
| Year | 2018 |
| Court | Family Division |
Publicity – Care proceedings – Birth parents presenting as victims of a miscarriage of justice – Whether reporting restriction order to be extended beyond hearing confirming findings that one or both had inflicted serious injuries on child.
The case involved the third trial of allegations that the child's birth parents had inflicted serious injuries on the child when he was only a few weeks old in 2012. The injuries included fractures to three different bones, bruises and a torn upper lip and were discovered when the child was taken to hospital by the birth parents with oral bleeding.
The first trial was a fact-finding hearing in the county court in March 2013, conducted in the course of care and placement order proceedings brought by the local authority. The judge found that the child had suffered a number of serious injuries at the hands of one or other, or both, of the birth parents. There was no appeal against this judgment and the judge subsequently made both care and placement orders, placing the child with adoptive parents.
The second trial was a criminal trial at the crown court in September 2015, at which the parents were accused of child cruelty, contrary to s 1(1) of the Children and Young Persons Act 1933. During the trial, one of the prosecution's medical experts, recently consulted, stated that he was not sure that the evidence established to the necessary standard that the fractures identified by other experts were in fact present. As a result, the prosecution proposed to offer no evidence on this issue and the judge directed the jury to return verdicts of not guilty, which they duly did.
Following this, the birth parents immediately protested that they and the child had been the victims of a miscarriage of justice in the family proceedings, taking their case to the media, including the Daily Mirror. Interviews with the birth parents were published, including photographs – references were made to the child having been 'stolen' from the birth parents. In December 2015 the birth parents applied to the Court of Appeal for permission to appeal out of time against the judge's fact-finding (rather than the care and placement orders), on the ground that there was now fresh evidence available, satisfying the test in Ladd v Marshall [1954] 1 WLR 1489. The Court of Appeal ordered reconsideration of the facts in the light of the expert evidence given at the criminal trial.
That reconsideration led, in June 2016, to an order for a full re-hearing of the original allegations together with a reporting restriction order restraining identification of the child and of the adoptive parents. The order also provided for the anonymity of the birth parents, at least until the end of the rehearing, notwithstanding that they had already talked to the media; this was expressed to be because of 'the pressing need to protect X, and also the adoptive parents, from the enhanced glare of publicity in the interim.'
Less than a week before the re-hearing, listed for October 2016, both birth parents notified the court and the other parties that they wanted to withdraw and that they no longer sought to challenge the judge's findings, although they both still put the local authority's case in issue and denied causing the child any injuries. The judge concluded that the hearing would proceed in any event, and did not rule out the birth parents being compelled to give evidence, in the interests of finding out the truth for the child and for the public.
At this third trial the birth parents attended to give evidence when summoned but were not otherwise present or represented. A number of new expert reports were considered and oral evidence was provided by many of the experts. One of the experts, Dr Ayoub, a US practitioner, whose evidence in the crown court had essentially been to the effect that almost all childhood fractures he had studied were the result of childhood rickets, was not available to give evidence, even by video-link. The expert who had expressed concerns during the criminal trial about the quality of the evidence of fractures still had concerns, but he agreed with the other experts that there was evidence that the child had sustained an injury to his left ulna, as the result of some trauma, specifically a gripping or twisting force greater than any involved in the normal handling of a baby. Two other experts were clear that in their view the evidence established the presence of fractures. All the experts, other than Dr Ayoub, were clear that the child did not have rickets and had normal bone density.
The question arose, once the court had given judgment, whether, and if so to what extent, the reporting restriction order imposed in 2016 should now be continued. All parties agreed that the reporting restriction should continue in relation to the child and the adoptive parents. In relation to the birth parents, the local authority, the adoptive parents and the Press Association all argued that it should be discharged. The birth mother, who now regretted her engagement with the media, argued that it should continue.
Held – (1) The evidence provided by Dr Ayoub was worthless; it had convincingly been described as 'nonsense' by another expert, both in the colloquial meaning of 'bonkers' and the meaning 'lacking any sense'. It was difficult to imagine any circumstances in which Dr Ayoub could appropriately be called as an expert to give evidence in a family court in this jurisdiction (see (no 4) [43], [45], [46], below).
(2) Despite the unusual forensic history it was for the local authority to prove its case, if it could, and not for the birth parents to prove their case or to demonstrate that the original judge had been wrong. Except in relation to the important question of the number of fractures the child had suffered, the entire substance of the local authority's case had been demonstrated – demonstrated convincingly and compellingly and in a manner plainly satisfying the relevant burden and standard of proof. Further reflection since the hearing concluded had persuaded the court, furthermore, that the local authority had likewise made out its case in relation to all the fractures the child was alleged to have suffered. The court found as a fact that in all significant respects the original findings of fact had withstood scrutiny and stood firm. The additional expert evidence which had become available since the original fact-finding, far from undermining the original judge's findings, had proved entirely supportive of them. The court found as a fact, that the process before the original judge had been vindicated. It followed, and the court found as a fact, that the birth parents had not been the victims of any miscarriage of justice, nor had the child (see (no 4) [50]–[52], below).
(3) Whoever was, or were, the perpetrator or perpetrators, both the birth parents carried a high measure of responsibility for what on any view were serious parental failures. The perpetrator must have known that the child required medical attention. Even if one of the parents was neither the perpetrator nor present at the time when injuries were inflicted, that parent must have realised, even if only as time went by, that something was seriously wrong and that the child required medical attention. Yet, until the final episode of oral bleeding, neither of the birth parents had made any real attempt to obtain medical assistance for the child, let alone to protect the child from what was going on. Neither of the birth parents had genuinely been trying to assist the court on any issue. Much of their evidence had been evasive; some had simply been lies, designed to obscure and cover up the truth. The very wide range of the descriptions and explanations given by them from time to time was itself suggestive of a dishonest account; their explanations had ranged from global ignorance to the highly specific and speculative; and their evidence had veered between the deliberately unhelpful and the absurd (for example, the suggestions that the child had been injured in a paranormal event or had, at the age of no more than six weeks, self-injured). Neither parent had been able to recall a single incident which, in the light of all the expert evidence, could actually explain any of the injuries. The court did not accept the birth parents' protestation that the motivation for their attempted withdrawal from the proceedings was concern for the child's welfare and a recognition that there was little realistic prospect, whatever the court's findings, of ever being able to challenge the adoption order. If that had indeed been the case, they could have sought to withdraw much earlier. The truth seemed to be that, faced with the overwhelming weight of all the expert evidence, the birth parents had realised that 'the game was up' and had cynically sought to withdraw, hoping that this would stymie any attempt to re-visit the original findings and thus prevent those findings from being vindicated. Given the totality of the evidence now available, it was little wonder that the birth parents had not wished the court to examine it and that they had sought by their actions immediately before the final hearing to ensure that the court did not do so (see (no 4) [121], [123], [125], below).
(4) There were various differences as between the criminal and family courts in the practice and procedure relating to expert witnesses, even if in substance the approach was the same, but no useful purpose would be served by any extended analysis. For present purposes, beyond referencing comments in In re AD and Anor (children) (fact-finding rehearing)[2016] EWHC 2912 (Fam), paras [13]–[15], the court's only comment was that nothing in the history of this unfortunate litigation gave cause for concern about the continuing utility and appropriateness of the processes and procedures in the family courts provided for in FPR 2010 Pt 25 and PDs 25A–E. On the contrary, the system in...
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