A v Cardiff City Council

JurisdictionEngland & Wales
JudgeMrs Justice Theis DBE,Lord Justice Baker,Lord Justice Peter Jackson
Judgment Date30 July 2019
Neutral Citation[2019] EWCA Civ 1360
Docket NumberCase No: B4/2019/1026
CourtCourt of Appeal (Civil Division)
Date30 July 2019

[2019] EWCA Civ 1360

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM HHJ PARRY

SITTING IN THE FAMILY COURT AT CARDIFF

CASE No: CF18C00955

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Peter Jackson

Lord Justice Baker

and

Mrs Justice Theis

Case No: B4/2019/1026

Between:
A
Appellant
and
Cardiff City Council
1 st Respondent

and

B
2 nd Respondent

and

X and Y (By their Guardian, Helen Tucker)
3 rd & 4 th Respondents

Mr Mark G Allen (instructed by Hurlows Family Law Practice) for the Appellant

Mr Simon Stephenson (instructed by Cardiff CC) for the 1 st Respondent

The 2 nd, 3 rd and 4 th Respondents were not represented

Hearing dates: 11 th July 2019

Approved Judgment

If this Judgment has been emailed to you it is to be treated as ‘read-only’. You should send any suggested amendments as a separate Word document.

Mrs Justice Theis DBE

Introduction

1

This is an appeal from orders made by Her Honour Judge Parry on 12 April 2019 in relation to two children: X (4 years) and Y (1 year) where she found the threshold criteria were established and made a care order in relation to each child, with a plan for the children to remain placed with their maternal grandparents.

2

The appellant is the mother; the father supports her appeal. The appeal is opposed by the local authority and the children's guardian.

3

The grounds of appeal put forward by Mr Allen, on behalf of the mother, can be summarised as follows:

(1) The judge failed to give any, or sufficient weight to the parents' positive parenting and the expert evidence and gave too much scrutiny to the detail of an account of an incident by an 11 year old niece, Z, which may have caused the injury.

(2) The judge failed to properly direct herself when considering the credibility of the parents' evidence (in particular that of the mother) with the result that her conclusions about credibility cannot stand.

4

On 14 June 2019 King LJ gave permission to appeal saying

‘The case was a so called ‘single issue case’ where the baby of otherwise unimpeachable parents sustained a single fracture. It arguable that the judge failed to give adequate weight to the expert paediatrician who, it is said, gave evidence that the account put forward by an 11 year old niece in her ABE interview of an account within the relevant timeframe provided a feasible explanation for the injury. Further, it is arguable that the judge erred in her approach to the evidence of the child witness, in respect of whom it is not suggested had been coached or coerced to give an account of an accident whilst the baby was in her sole care’. In granting permission, she gave leave for the grounds of appeal to be amended.

5

At the conclusion of the appeal hearing the parties were informed the appeal would be allowed, the judgment set-aside and the matter would be reheard before a different judge. The case has been remitted, with a directions hearing listed shortly through liaison with the Family Division Liaison Judge with a view to a rehearing in September.

6

This judgment contains my reasons for that conclusion.

Relevant Background

7

The mother and father are married and have two children, X and Y. Prior to the issue of these proceedings they had no previous involvement with the local authority.

8

On 17 May 2018 Y, age 5 months, attended with her parents to have her third set of immunisations. The father held Y whilst she had the injection, holding her arms and left leg as requested by the nurse. The nurse administered one injection to the left leg and two to the right leg. The parents recalled the nurse holding Y's right leg. Y cried and struggled at the time and the parents describe her being unsettled and crying afterwards. At the time they put this down to the effect of the injections.

9

The following day, 18 May, the parents went with X and Y to stay with relatives for the weekend, from Friday to Sunday. Those relatives have four children, one of whom is Z, then age 11 years.

10

On 19 May 2018 Z was briefly caring for Y unsupervised whilst the mother went and prepared some milk for Y. There are varying accounts as to how that came about: whether Z came to collect Y from the parents' bedroom and took both X and Y downstairs, or the mother came downstairs with X, Y and Z. In any event, it is agreed there was a period with no adult present. During that time Z went from sitting on the floor with Y on her lap to standing up with Y in her arms. During that manoeuvre Z subsequently described Y falling backwards, away from her body whilst she kept hold of her legs and pulled Y back to hold her against her body. The subsequent accounts refer to Z screaming or crying, and the mother returning to the room with a bottle and taking over care of Z. Y's crying was reported to subside when she took the bottle. At the time, other than Y being upset there was no suggestion anything of significance had occurred.

11

On the Sunday evening, 20 May, the family returned home. In his report Dr Cartlidge, the expert paediatrician, notes that Y had not moved her leg normally during the weekend and flinched when her leg was touched (it is not clear what the source of this information is). In a statement from the maternal aunt, who visited the family on the evening of 20 May, she refers to tickling underneath Y's feet, which made her move her left leg away but not her right leg.

12

As there was no improvement in Y's position the mother took Y to the GP, Dr Hunter, on the morning of 21 May. The doctor notes that the mother reported Y had been crying excessively since the immunisations and that both thighs felt hard at the injection sites. Y cried when the doctor palpated the injection sites, which were firmer than usual. The doctor thought the discomfort was caused by the immunisations and prescribed Calpol, with advice to review if there was further concern.

13

Later that evening the parents noticed Y's right leg was swollen and in the early hours of Tuesday morning (22 May) the maternal aunt took a photograph, which she exhibited to her statement. The mother noticed that the leg was still swollen on the 22 May and returned to the GP that day. She saw Dr Carter-Thomas who noted Y was distressed and that the circumference of the right thigh was 3cm more than the left and was very tender. Y was immediately referred for a paediatric opinion.

14

Y was seen later that day at the hospital by the paediatric registrar who noted swelling at the injection site of both thighs, no voluntary movement of the right lower limb and visible pain on moving it. The differential diagnosis was post-immunisation abscess or possibly a fracture. Following an ultrasound scan which noted a subcutaneous oedema of the right thigh, a 9x3mm hypoechoic lesion which might be a small abscess but more likely inflammation, the consultant paediatric radiologist advised against an x-ray.

15

Y stayed in hospital overnight and on 23 May a paediatric registrar noted Y to have no active movement of the right leg. Y was later seen by an orthopaedic registrar who diagnosed a possible small haematoma in the muscle caused by the immunisation, and again an x-ray was not thought necessary. Y was discharged home from hospital that evening, with a plan to review in the fracture clinic if the symptoms did not resolve.

16

Y continued to cry when moved and was unsettled. On 27 May the parents brought her to the out of hours service at the hospital, where her right thigh was found to be swollen but no pain was noted when moving the right hip. She was discharged home later that day.

17

On 31 May Y was brought to the fracture clinic where an x-ray finally took place. The x-ray findings were noted to be a displaced and healing transverse fracture of the mid shaft of the right femur with soft callus and periosteal reaction probably at least 10 – 14 days old. Further medical investigations revealed no other injuries. A referral was made to the local authority.

18

Y was discharged from hospital on 6 June. She was placed with the maternal aunt until 4 August, and thereafter with the maternal grandparents where the children remain. The parents moved into rented accommodation and contact arrangements three times per week were agreed with the local authority.

19

On 1 June Y was seen for a Child Protection medical by Dr Scheller (Consultant Paediatrician). Both parents were present. The father gave details of an incident when they went to stay with relatives the weekend after the immunisations and Y was left in the sole care of Z and said that Z ‘remembers that Y suddenly cried but she was unsettled throughout the day anyway and often cries when she is not with the parents…nobody else had looked after Y during that time’.

20

A strategy meeting took place on 5 June. The minutes are not in the papers although the social worker's statement relates that the meeting was informed about what the father told Dr Scheller.

21

Proceedings were issued by the local authority on 28 June 2018. The basis for establishing the threshold criteria was Y's fracture being non-accidental and having occurred whilst Y was in the care of one, or both parents. In the schedule of threshold findings dated 10 November 2018 the local authority put the timing of the fracture as being between 21 and 22 May.

22

In their respective responses to threshold each parent referred to the time when Z cared for Y unsupervised, the mother's is dated 19 July and the father's 20 July.

23

The case management hearing before the judge took place on 24 July 2018. The issue of an accidental cause of the injury when Y was in the care of Z was raised. In her judgment the judge refers to that hearing as follows [45] ‘I indicated, probably quite strongly, that the court had no intention of joining a not quite 12 year old child as an intervener in a case of inflicted injury but that there might need to be an...

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