Webster v Norfolk County Council and Another

Hearing date: 4th December 2008

This judgment is divided into the following sections

Introduction

We heard this case on 4 December 2008 and reserved judgment. Unfortunately, it was not possible to put our judgments into writing before Christmas. After further discussion amongst ourselves, however, it became apparent that we were each of the view that Mr and Mrs Webster's applications would have to be refused. We therefore decided that we should communicate our decision to the parties before Christmas, with the reasons for it to follow afterwards. This judgment will give my reasons for the decision I have reached. I apologise to the parties for the delay which has occurred.

Over the period from 4 December 2008, I have been considering whether there is any one noun or adjective which can properly describe this case. I have come to the conclusion that there is not. The four children concerned, namely Brandon, his sister and his two brothers, have been denied the opportunity to argue that they should grow up together with their parents as a family. That is deeply worrying, and, on the face of it, a clear breach of their rights to respect for their family life under Article 8(1) of the European Convention on Human Rights (ECHR).

For Mr and Mrs Webster, the parents of the children concerned, the case has been a disaster, quite apart from any breach of their rights under the ECHR. From their perspective, they have been wrongly accused of physically abusing one of their children, and three of their children have been removed wrongly and permanently from their care. The only mitigation, from their point of view is the local authority's belated recognition that they are fit and able to care for Brandon.

For the Norfolk County Council, despite its forceful forensic stand in this court, the case has been a worrying and deeply regrettable experience, not least because, in the result, a family which might well have been capable of being held together, has been split up.

For the medical profession, the case has also been a painful learning experience, and a further illustration of the proposition that things may not always be what they seem.

Finally, both for the Family Justice System (FJS) in general, and for this court in particular, any miscarriage of justice – or potential miscarriage of justice – is both regrettable and embarrassing, not least when so much multi-disciplinary effort has been put into the promotion of good practice and the creation of procedures designed to ensure that the events which occurred in this case are not repeated.

The FJS has many critics. This is not a matter of complaint, as I regard myself as being among them. However, one of the dangers of ill-informed criticism of the FJS is the tendency either to propagate or to seize upon the tendentious (and often illicitly disclosed) accounts of the unsuccessful party or parties to the proceedings and publish those accounts as if they contained the only – and determinative – features of the particular case. A good example of this phenomenon is the case of Re H (Freeing Orders: Publicity) [2005] EWCA Civ 1325, [2006] 1 FLR 815.

A second risk which critics of the FJS run is to cast the blame for the outcome of a case onto one faction – usually the social workers or the experts. There is, in particular, a misconception that expert witnesses are “hired guns” for the side which has instructed them. In my experience over many years, both as advocate and judge, this is simply not the case. In my judgment one of the principal achievements of the FJS in the past twenty years or so has been the lead it has taken in discouraging partisan experts, and in advancing the proposition that the overriding duty of the expert witness is to the court and to the children concerned in the case, irrespective of the source of his or her instructions.

At the time of these proceedings, this principle was embodied in Appendix C of The Protocol for Judicial Case Management in Public Law Children Act Cases [2003] 2 FLR 719 at 771: it is now contained in the Practice Direction: Experts in Family Proceedings relating to Children which came into force on 1 April 2008.

I regard myself as being amongst those critics of the FJS who recognise that it is indeed fallible, but that the overwhelming majority of those working within it are conscientious professionals seeking – often with access to wholly inadequate resources – to do their best for the disadvantaged children whom they serve. I therefore regard it as my function in this, as in other cases, to examine the case in the round and as a whole —including, of course, the reasoned judgments in the court below. In my judgment this is the best way to promote improvements designed to reduce or eliminate the prospects of repetition. This is a point to which I will return at the end of this judgment.

I shall, of course, deal with the detail of the case in this judgment. I can, however, say at the outset that, having read all the papers in the case, and having listened carefully to the arguments, I have come to the conclusion that it would be wrong to criticise any of the social workers or the doctors who advised Judge Barham in the care and freeing proceedings relating to A, B and C (the initials by which Mr and Mrs Webster's three eldest children are known). I am satisfied that, in this unhappy case, everybody was doing their conscientious best to give the judge professional advice and to act in what they perceived to be the best interests of A. B and C.

In particular, as I point out later in this judgment, the type of injuries which child B sustained have a high specificity for non-accidental injury, and cases of scurvy in children are so rare that few of the specialists in practice had ever seen a case – let alone a recent case.

The difficulties faced by the professionals in these proceedings constitute one of the reasons why I am pleased that Mr and Mrs Webster do not seek to disturb the anonymity hitherto afforded to the doctors and to the social workers involved in the case. I appreciate, of course, both that the issue of transparency lies at the heart of the debate about family justice and that this judgment is not the place to pursue it. However, as I have already stated, anonymity has hitherto been afforded to the three children who have been adopted; to the local authority's social workers; and to the doctors who advised the local authority and the court. Should there be any application in due course by any party to remove this anonymity, we can, no doubt re-constitute to hear it, once the parties have had the opportunity to consider our judgments. In the meantime, I propose to preserve it.

Like all judgments of the Court of Appeal, our judgments in this case will, of course, be handed down in public, and will be available on the internet (www.bailii.org). In my judgment, however, it is perfectly possible to discuss the issues raised by this case without naming individual doctors or social workers. It would, moreover, be quite wrong to seek to scapegoat any individual for what may or may not have been a systemic failure, or what, in particular instances, may not have been a...