Webster v Norfolk County Council and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Munby |
| Judgment Date | 17 November 2006 |
| Neutral Citation | [2006] EWHC 2898 (Fam) |
| Docket Number | Case No: NR06C00371 |
| Court | Family Division |
| Date | 17 November 2006 |
[2006] EWHC 2898 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(In Public)
Mr Justice Munby
In the Matter of Brandon Webster (A Child, Dob 29.5.2006)
Case No: NR06C00371
Ms Rachel Langdale (instructed by the Solicitor, Norfolk County Council) for the applicant
Mr Richard Anelay QC and Ms Jane Hoyal (instructed by Harman and Harman) for the first and second respondents
Mr Jonathan Bennett (instructed by Tom Higgin) for the children's guardian
Mr Mark Warby QC (instructed by Reynolds Porter Chamberlain LLP) held a watching brief for British Broadcasting Corporation and Associated Newspapers Limited
Ms Susan Reed held a watching brief for the adoptive parents of A and B
Hearing date: 3 November 2006
These are care proceedings in relation to Brandon Webster, who was born on 29 May 2006. I have already sketched out the background in a judgment I handed down in public on 2 November 2006 and need not repeat what I said on that occasion: see Re Brandon Webster, Norfolk County Council v Webster [2006] EWHC 2733 (Fam) at paras [2]-[7]. However, in order to make sense of what follows I must add a little to that account.
Background to the proceedings
Central to the allegations in the earlier care proceedings in relation to A, B and C were allegations that B had suffered non-accidental fractures at the hands of one or other or both of the parents. His Honour Judge Barham read and heard evidence from two experts, Dr D, a consultant radiologist, and Mr E, a consultant orthopaedic surgeon. He also read but did not hear oral evidence from two other experts, Dr F, a consultant paediatrician, and Dr G, a consultant community paediatrician. In substance the expert evidence, albeit with different shades of emphasis and certainty, all pointed in the same direction. In the judgment he gave on 21 May 2004, Judge Barham found that B had suffered six fractures in all: fractures to a rib, to both arms and to both legs. Those fractures had occurred on at least two occasions and possibly on more than two occasions. The experts ruled out all the various alternative possibilities that had been put forward by the parents to explain the fractures: osteomyelitis, osteogenesis imperfecta (brittle bone disease), poor nutrition and scurvy or rickets. The experts also rejected as plausible explanations of the fractures any of the following: parental restraint, the child getting a leg caught in a stair gate, or the injuries having been inflicted by child A (who at the relevant time, I might add, was not yet four years old). Judge Barham found that the injuries were non-accidental and that the only possible perpetrators were the parents.
In the further judgment that he gave on 24 November 2004, Judge Barham made additional findings against the parents. I need not go into the details, for I am going to direct that both of Judge Barham's judgments be released into the public domain (see paragraph [61] below), but these additional findings were, on any view, much less grave than his findings in relation to the injuries to B.
The proceedings
The present proceedings were commenced by Norfolk County Council ("NCC") on 8 June 2006. The proceedings were subsequently transferred first to the County Court and then to the High Court, where they have been allocated to Holman J in accordance with the President's Practice Direction (Care Cases: Judicial Continuity and Judicial Case Management) appended to the Public Law Protocol [2003] 2 FLR 719.
An interim care order was made on 10 June 2006. On the same day His Honour Judge Curl, sitting as a Judge of the High Court, made an order imposing very drastic reporting restrictions. Addressed contra mundum (to the world at large), it prohibited, subject only to one minor exception, the publication of "any … information relating to" Brandon and the soliciting from the parents of "any information relating to [Brandon] or his parents". Prior to that, on 16 May 2006, Pauffley J had made an order designed to protect the identities of A, B, C and their adoptive parents.
By an order he made on 17 July 2006, Holman J directed that the final hearing, with a time estimate of five days, was to be on 25 June 2007, with a pre-hearing review on 22 February 2007. Both are listed before Holman J as the allocated judge. By an order he made on 10 August 2006, Roderic Wood J extended the time estimate for the final hearing to 10 days.
On 28 June 2006 NCC had filed its threshold statement. (For the statutory tests of threshold for interim and final purposes see respectively sections 31(2) and 38(2) of the Children Act 1989.) Unsurprisingly, NCC's threshold statement rehearsed Judge Barham's findings in the earlier care proceedings. The core of NCC's case was – and is – contained in the following two paragraphs:
"This was not a single issue case. Furthermore, the guardian outlined in her report to the court and it was referred to by the trial judge, that the parents were "unable to take professional concern seriously" and "it would not be possible for any essential changes to be effected to safeguard the children's wellbeing and welfare."
In view of the findings made by a competent court with relevant jurisdiction in 2004, it is NCC's case that Brandon is at risk of significant harm in the form of physical abuse, emotional harm or neglect in the care of his parents. It is acknowledged, however, that is over 2 years since the findings in respect of [B]'s injuries were made, and over a year and a half since the conclusion of [A, B and C]'s care proceedings. Given the passage of time, NCC has decided to undertake further assessment of the parents and their parenting capacity."
By the order made by Roderic Wood J on 10 August 2006, the parents were directed to file a position statement in respect of threshold criteria by 30 August 2006. They have not done so.
In accordance with directions given by Holman J in the order dated 17 July 2006 and by Roderic Wood J in the order dated 10 August 2006, the parents were given leave to instruct a consultant paediatric radiologist, Dr L, who was to be given access to all the relevant documents from the previous care proceedings. His instructions, in short, were to report on B's X-rays. His report is dated 12 October 2006. His conclusions were clear and unequivocal:
"The fractures in this child are of the 'classic metaphyseal lesion' type and are highly specific injuries for inflicted injury. The number and distribution of fractures suggests all the child's limbs were forcibly twisted on one or more occasions with enough force to cause the fractures. The degree of force is inconsistent with normal handling. The degree of force identified to cause these injuries is described as such that an observer would be clear that an assault had occurred. It is my opinion that a 4 year old would have insufficient strength to inflict these injuries on a 2 year old sibling. Indeed, significant force would have been required to inflict these fractures in a child of almost 2 years old who would be able to resist any painful stimuli …
These fractures suggest that he had been injured by one or more episodes of forcible twisting of the limbs and compression of the chest … There is no evidence to suggest that [B] suffered from an underlying bone condition that would predispose him to fractures of the kind found. I note the family history of OI, but find no evidence that [B] suffers from OI himself.
It is my opinion that the fractures could not have been sustained accidentally or by normal daily activities or be inflicted by a 4 year old sibling. No explanation has been provided for the injuries. It is my opinion on balance of probabilities that one or other of the parents inflicted these injuries."
In May 2006 the mother had obtained a report from a consultant in clinical genetics. Previous DNA testing of one of the mother's siblings had identified a specific mutation indicative of osteogenesis imperfecta ("OI"). But DNA testing of the mother showed that she does not carry this variant gene, so that "the risk of [her] being affected with OI is very low." In short, the report indicated that the mother does not have OI. She is not a symptomless carrier.
Brandon and his parents were placed in a specialist residential unit for the purposes of intensive assessment. Envisaging that this assessment would conclude in the early part of November 2006, Holman J on 17 July 2006 directed that the matter was to be listed for one day on 3 November 2006 "for consideration of the interim care plan." No doubt aware that he would be out on circuit, as in fact he was, Holman J directed that this hearing was not reserved to himself.
In accordance with directions given by Holman J in the order dated 17 July 2006 and by Roderic Wood J in the order dated 10 August 2006, NCC and the children's guardian were given leave to instruct Dr M, a chartered clinical psychologist, for the purpose of conducting a risk assessment of the parents, and the parents were given leave to instruct Dr N, a consultant psychiatrist, for the purpose of conducting psychiatric assessments of them. Dr N made two reports, one in respect of each parent, both dated 25 August 2006. Dr M made two reports, one in respect of each parent, both dated 29 September 2006.
Dr N concluded that each parent's current mental state is normal, with no diagnosable psychiatric disorder or personality disorder which would make a contribution to possible future risks posed by the parents. He suggested that further assessments can contribute to an understanding of potential future risk and that this is something to be explored further during...
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