West Sussex County Council v G (1st Respondent) N (2nd Respondent) L (by his Children's Guardian) (3rd Respondent)
| Jurisdiction | England & Wales |
| Judge | HHJ Jakens |
| Judgment Date | 06 July 2015 |
| Neutral Citation | [2015] EWFC 67 |
| Docket Number | Case No: SD14C01171 |
| Court | Family Court |
| Date | 06 July 2015 |
[2015] EWFC 67
IN THE FAMILY COURT AT BRIGHTON
1, Edward Street,
Brighton
BN2 0JD
HHJ Jakens SITTING AS A HIGH COURT JUDGE
Case No: SD14C01171
and
and
Miss Gemma Taylor and Miss Rosamund Hollingsworth for the Local Authority
Mr Paul Storey QC and Mr Adam Smith for the Mother 'G'
Miss Jane Crowley and Miss Catherine Jenkins for the Father 'N'
Miss Anna McKenna and Miss Alison Harbour for the Child 'L'
| INDEX | |
| i. Introduction | Page 2 |
| ii. Synopsis | Page 5 |
| iii. The medical framework | Page 8 |
| iv. Factors in the father's medical history. | Page 23 |
| v. The evidence in the case | Page 24 |
| vi The position of the parties and the identified issues | Page 49 |
| vii. The Law | Page 55 |
| viii. Why the application for withdrawal must succeed | Page 60 |
| ix Considerations in relation to the Human Rights Act 1989 | Page 67 |
| a. The consequences of this case for L and his family and from whence they flow on the evidence | |
| b. The strategy discussion | |
| x. CONCLUSION | Page 67 |
INTRODUCTION
This is the case of L, a baby who was born in 2014, now on his way to his first birthday. L's parents are G and N. As I write he has been returned from foster-care to the care of his mother. His Guardian is Jonathon Shone.
Miss Gemma Taylor and Miss Hollingsworth represent the Local Authority, Mr Storey QC and Mr Smith the mother, Miss Crowley and Miss Jenkins the father and Miss McKenna and Miss Harbour represent L through his Guardian.
This is an application under FPR 2010 r 29.4 by West Sussex County Council for permission to withdraw their application for a care order in respect of L which was issued on 6 th November 2014. L's welfare in care proceedings is my paramount consideration. It must also be considered before granting leave in a case of such significance for him and his family. I have taken stock of all that I have read and heard. The granting of leave is not a rubber-stamping exercise.
The case began its life on the basis that L had suffered significant harm, and the indications from the medical evidence advanced were that this was a shaken baby case for which there was no explanation, but in which the parents and their mothers were in the pool of possible perpetrators.
The local authority must as a matter of law prove their case to the requisite standard, the balance of probabilities, and in a case such as this, the whole of the evidence, including that of the parents and other lay witnesses as well as the doctors and experts concerned would fall to be considered to provide the court with a wide over-view of the relevant facts and matters upon which to evaluate the evidential picture and base its conclusions. The situation in this case is that the extensive medical evidence does not come up to proof and the threshold criteria are not met. Neither L's parents nor anyone in his family harmed him and there is no available route on all the evidence to come to any different conclusion.
All parties agree to the application, but all parties also agree that a judgment in the case is an essential step, given what has transpired during the course of this case, so that the matters which have emerged can be a matter of record. Things went wrong for L and also for his family which cannot be put right.
I have had no hesitation in granting the application, and I shall give my reasons for doing so in full. A judgment is equally essential to map out the progress of L's case, the evidential gaps which have become so clear with hindsight and the complex but ultimately unresolved issues which have led the case into unknown territory.
I am satisfied that on the evidence I have heard, there was an incomplete evidence base, that L was an "incompletely investigated child" and that as Mr Jayamohan who was instructed in this matter stated: "The evidence we have is insufficient for us to be as certain about something as we can be in other cases".
West Sussex Hospitals NHS Trust
Western Sussex Hospitals NHS Foundation Trust was invited to hear the submissions of the parties and my judgment. Mr Sachdeva QC appeared on 29 th June for the Trust. They received the invitation to attend on very short notice and prior to the hearing had made it very clear that they wished to have the opportunity to consider all the relevant evidence, the oral evidence, have the opportunity to investigate the matter for their own benefit and understanding and make informed submissions to the court.
At the hearing Mr Sachdeva applied on behalf of the Trust to be joined as party to the proceedings, for the court to direct a freestanding Human Rights Application to be issued by the parents, and for disclosure. It was opposed by the parents and the Guardian, the local authority's position being that if the Court were to make the findings sought on behalf of the parents it should accede to the Trust's application to be joined.. The experts' reports had already been supplied to Dr Kabole pursuant to a direction of 3 rd March 2015 and I gave a judgment on the application on that day, dismissing the application. They wished to be joined in essence to defend the factual issues raised in this case, but in my judgment that was inappropriate. They are a matter of fact and record.
This is not a claim in clinical negligence, nor is it an application for damages pursuant to the Human Rights Act 1989. This judgment is focussed upon the care case from which it arises and the specific application for permission to withdraw. I do not know whether ultimately such applications will be made, but this judgment is not supportive of either: it is my duty in what are highly unusual circumstances to record the matters which have given rise to the application to withdraw and to provide my own analysis and conclusions, relevant to the application, of the evidence which has emerged.
In this judgment I will set out in fullest detail what has transpired in this case where the evidence is now closed, bearing in mind that the Trust has already had the expert evidence, and with the expectation that they will have a copy of my judgment and transcript of the evidence.
SYNOPSIS
Last year, in October, L was taken ill whilst in the care of his mother and father. He was admitted to Worthing Hospital on several occasions over a period of days and underwent some tests. The result was that the injuries seen were thought by the team at Worthing to have been non-accidental head injury — a "shaken baby" case. Luckily he appears to have recovered fully from this trauma.
A strategy discussion was held on 5 th November attended by the medical team and social workers, with input from the family GP, on the basis that L was suspected to have suffered non-accidental head injury, and it appears that part of the information (from an unidentified source and without any evidence in support) was that the father was believed to have caused it. The parents were arrested and interviewed that day, and he was placed with his paternal aunt, under an interim care order when he was later discharged from hospital. After a period of time with his aunt, he was placed in foster-care, where he has been ever since, separated from his parents and extended family. On 25 th June 2015 he went back to the care of his mother, having spent over half his life to date with others. L is a little boy who has not been very well, in fact to add to the anxieties about him, he was admitted into hospital with respiratory problems during the course of this hearing, but thankfully has made a good recovery.
L's case was medically extremely complex. All the experts referred to it as unusual. I heard the case on 15 th 16 th 17 th 18 th 19 th 22 nd 23 rd and 25 th June. On that day, the local authority applied to withdraw the application. The interim care order was discharged and L was returned in joyful circumstances to his family. I indicated that I was minded to grant the application but would need to give a full judgment with my reasons.
Essentially, the evidence of the experts and medical professionals was put to the test over those days, and by the conclusion of the medical evidence it had become clear to all those in this matter, including myself, that the local authority, who must prove their case against the parents, were in a position where it was highly unlikely that the evidence would support findings to the requisite standard against the parents and the threshold criteria would not be met in this single-issue case. I make it plain that there can be no criticism of the fact that the Local Authority issued proceedings here where there was clearly a prima facie case from the time L fell ill on the basis of the medical information which was supplied to them.
Very properly in my judgment, and with exemplary good grace, the Local Authority made their application having taken stock of the evidence available to them at this point in the hearing.
To found the basis for permitting the local authority to withdraw their application, I note the difficulties posed which have arisen in this unique case: some are serious, some perhaps less so, and some only visible with hindsight. There were gaps in the information available to the experts, and gaps in their own expertise as regards being able to come to clear understanding about what happened to L medically. There was, however, less uncertainty amongst the treating clinicians at Worthing Hospital as regards the cause of L's head injuries at the critical point in time when life-changing decisions were to be made as regards his future, and I have concluded on all the evidence that this is something which requires careful exploration and recording in this judgment.
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