A v A Local Authority
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker |
| Judgment Date | 18 January 2022 |
| Neutral Citation | [2022] EWCA Civ 8 |
| Docket Number | Case No: CA-2021-000688 |
| Court | Court of Appeal (Civil Division) |
S (Vulnerable Party: Fairness of Proceedings)
[2022] EWCA Civ 8
Lord Justice Baker
Lady Justice Whipple
and
Mr Justice Francis
Case No: CA-2021-000688
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT GUILDFORD
HH Judge Nisa
GU20C00098
Royal Courts of Justice
Strand, London, WC2A 2LL
Suzanne Kelly (instructed by Venters) for the Appellant
Sally Stone QC (instructed by Local Authority Solicitor) for the First Respondent
Poonam Bari (instructed by Child Law Partnership) for the Second Respondent
The Third and Fourth Respondents were not present nor represented.
Hearing date: 23 November 2021
Approved Judgment
Remote hand-down: This judgment was handed down remotely at 10:30am on Tuesday 18 January 2022 by circulation to the parties or their representatives by email and by release to BAILII and the National Archives.
Lord Justice Baker (giving the judgment of the Court):
This is the judgment of the Court to which all members have contributed.
The appeal arises from a fact-finding hearing that took place during January and February 2021 in care proceedings involving a girl, S, then aged 6 1/2. The principal issue arising in the hearing was the cause of injuries sustained by another child, J, a boy then aged 5 1/2, who is not the subject of these proceedings but who became the focus of the proceedings because his injuries were sustained around the weekend of 18 to 19 January 2020 during which he spent a period of time in the care of S's mother X and father Y. At the conclusion of the hearing, HH Judge Nisa found that most of J's injuries had been sustained accidentally but some had been inflicted by J's mother, A, who had been joined as an intervenor. She now appeals to this Court against the findings made against her.
In the period between the fact-finding hearing and the appeal, S, who had been removed from her parents' care, is living with family and is apparently thriving in their care. Meanwhile, in part as a result of the findings, the local authority has started further care proceedings in respect of J and his brother, although they remain at home under an interim supervision order. The future of all three children may therefore be affected significantly by the outcome of this appeal.
Background
In 2019, J and his older brother had been the subject of an assessment by the local authority's children's services as a result A's misuse of ketamine. Concerns had also been raised about bruises and marks seen on the child at school. In the weeks leading up to the weekend of 18 to 19 January 2020, J spent periods in the care of X and Y, who were friends of A, although there was a dispute at the hearing as to how often this had occurred. In the days before the weekend, J attended school, where staff observed no marks on him. At about 4.30pm on Saturday 18 January, A handed J over to X to spend the night and following day with X, Y and S. At the hearing, there was a dispute between the adults as to whether there had been any marks on J at this point, A saying that there had been no marks, X saying that there had been a mark on the side of his face. Over the next twenty-four hours, according to X and Y, various accidents occurred which they later suggested could have caused some of the marks subsequently seen on J. For example, X alleged that J fell into a ditch while playing in woods and that he had hit a radiator after jumping on a bed. A number of text messages passed between A and X during this period which were adduced in evidence at the hearing. At about 8pm on Sunday 19 January, Y returned J to A's home. It was A's evidence that she then noticed an abrasion on his left forearm, although there were inconsistencies in her various accounts as to what she saw and when. Later that evening, she texted X asking what had happened to J's arm. In reply, X said she had not seen anything.
It was A's evidence that, while getting J dressed for school the following morning, she noticed other marks and bruising on his face and body. It was her further evidence that, on her way to school, she asked another friend whether she could see any marks on J's face and that the friend said that it looked like a slap and advised her to contact social services. At that point, A did not say anything to the school staff about the marks. Instead, she went home and, as the judge found, forty minutes later telephoned her family support worker and then children's services. After that, she telephoned the school and, according to evidence from a member of staff, said that J had been with friends over the weekend and that on his return she had noted marks, and asked the school to log the marks. During the morning there were further phone calls and text messages between A and X.
The local authority instigated an investigation under s.47 of the Children Act 1989. A medical examination of J disclosed a total of twenty-three marks, bruises and abrasions, including a series of marks and abrasions on the left side of his face, amongst which were linear marks extending to his ear, a deep abrasion or burn on the left forearm, various bruises on his buttocks and thighs, and some superficial abrasions on the front of his penis. The conclusion of the examining doctor was that at least some of the injuries were non-accidental.
On discharge from hospital J, accompanied by his older brother, went to stay with grandparents but returned to A's care after three weeks. X was arrested, interviewed and released on bail. Subsequently, the police decided to take no further action with regard to J's injuries. Meanwhile, S had moved to live with a maternal aunt and, in June 2020, the local authority started these care proceedings, relying in part on the injuries sustained by J as evidence that S was likely to suffer significant harm in her parents' care. A series of case management hearings took place, in the course of which A was joined as an intervenor.
The fact-finding hearing was listed for five days but in the event, as a result of X's ill-health, extended over nine days in January and February 2021. The findings sought by the local authority related not only to the injuries sustained by J but also to other matters, including allegations of domestic abuse by Y towards X and A's misuse of ketamine. At the outset of the hearing, representations were made on behalf of A as to the appropriateness of seeking findings about her care of J in proceedings which did not relate to him. The court was asked not to consider any allegations against A which went beyond the single question of identifying the person in whose care the injuries had occurred. The court rejected this argument and counsel acting for A made an application for permission to appeal that decision. That application was dismissed and has not been renewed before this Court.
The hearing proceeded with oral evidence given by seven witnesses including X and A, but not Y, who refused to attend most of the hearing. At the conclusion of the evidence, the hearing was adjourned for written submissions. Judgment was handed down on 1 March.
In her judgment, the judge started by setting out the law as agreed by counsel. She summarised the opinion of the court-appointed expert, Dr Goddard, a consultant paediatrician, that the majority of J's injuries were “concerning for inflicted injury in the form of physical abuse” because of their number and location; that the linear marks on the left cheek were “consistent with a slap”; that marks on the ear “are more commonly seen in abused children”; that J would have cried out in pain after the injury to the left arm, and that, in the absence of a reasonable explanation, that injury was more likely to be non-accidental.
Turning to the evidence given by the three adults, the judge observed that there were “inconsistencies in every single witness”. She recorded the difficulties the court had experienced as a result of X becoming ill in the middle of her evidence. Later, she had failed to attend on the day allocated for the resumption of her evidence and as a result the hearing was adjourned again for X to attend. The judge stated that “the court gave the indulgence that it ought to have done quite correctly because the evidence of parents is very important and [X's] evidence was heard in full”. She described aspects of X's evidence as “quite confused and inconsistent” and “quite extraordinary”. She set out at length her evidence about her relationship with Y, describing how she had initially lied about his behaviour towards her and about his presence in the house over the weekend but finally, on the last day of her evidence when Y was not present in court, had admitted that he had been abusive. The judge observed, however, that “just because she has lied to the court in that regard, it does not mean that all her evidence is a lie”. Having summarised Y's written statements and police interview, she concluded that he had assaulted X during the weekend when J had been in the house, but was unable to find, as urged by other parties, that J had been “caught up in the crossfire”.
The judge started her summary of A's evidence by recording that she now accepted that she had lied to the court about the extent of her ketamine abuse. Having considered the evidence about the issue, the judge observed that A
“has lied and it is not in my view because she is embarrassed. She has far more to hide and quite a lot to lose in that regard. Even in her evidence she did not seem to give it the seriousness that she ought to have done. She was still in partial denial but by her attitude she was trying to state that it was something that was wrong with the results …. I was not impressed by [her] evidence.”
The judge then set out in some detail A's...
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