K (Children), Re

Judgment

Lord Justice Wall:

Introduction

5. On 24 August 2004 we stated we would give our reasons at a later date. This we now do.

The applications before the court

6. Before this court are two applications by a mother, DK (whom we will call “the mother”) (1) for permission to appeal and (2) for an extension of time for permission to appeal. The applications relate to her two children A and M, who are both girls. A was born on 3 December 2002 and M on 23 December 2003. Their father is the mother’s husband, PS. We will refer to him, henceforth, as “the father”.

7. The parents are Sikh. The father was born in England on 10 April 1973, so he is 31. Apart from extended visits to India, has lived in England all his life. He was educated here to A level. The mother was born on 4 October 1982. She was born and brought up in India. She does not speak English. She told the guardian that she had studied at college, but that those studies had not been completed because of her impending marriage to the father.

8. The parents were married on 28 May 2001 in India. It was an arranged marriage. The mother was 18 and the father 28. The father had been married twice previously, both marriages ending in divorce. As with the current marriage, both of his previous marriages were arranged; both wives were Indian and came to England following a ceremony of marriage in India.

9. Following the marriage, the mother came to England on 16 October 2001 when she was 19. She went to live with the father in his parents’ household. A was born on 3 December 2002. On 17 January 2003, following a previous admission to hospital five days earlier from which she had been discharged on 14 January, A was admitted to hospital for a second time, where a series of investigations by medical staff led to the conclusion that she had suffered serious non-accidental injuries. Care proceedings followed, and A was placed with foster parents under a series of interim care orders. She has thus been in foster care for about 18 months.

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10. The first order in time against which the mother wishes to appeal is that which incorporates findings of fact made by HH Judge Garner sitting in Leeds on 11 December 2003 in the first limb of what has become known as a split hearing in the care proceedings relating to A brought by the local authority. In that first, fact-finding limb of the proceedings, Judge Garner found that A had suffered extremely serious non-accidental injuries and in particular that she had been shaken on at least two separate occasions. She had also suffered a metaphyseal fracture of the distal right tibia caused either by a severe shaking or forceful yanking with the leg gripped at the ankle.

11 On 20 April 2004, in the second or disposal limb of the care proceedings. Mr. Peter Collier QC, sitting as a Deputy Judge of the High Court made a care order in relation to A, and also freed her for adoption. By that time, of course, M had been born and had been removed from the mother on the day after her birth under an interim care order, to which she remained subject. On the same day, Mr. Collier made a full care order in relation to M and also freed her for adoption. The mother now seeks permission to appeal against the orders freeing the two children for adoption, and the replacement of the full care orders by interim care orders pending a reconsideration of the question of the perpetrator of the injuries to A.

The hearing before Judge Garner

12. There was no doubt whatsoever that A had suffered significant harm within section 31(2) of the Children Act 1989. The critical question for Judge Garner was, accordingly, whether or not the perpetrator of her injuries could be identified. There were, on the evidence presented to the judge, only three candidates. These were; (1) the mother; (2) the father; and (3) the children’s paternal grandmother, BK (the grandmother) in whose household the parents and A were living. Also living in the same household was the paternal grandfather (the grandfather). However, before the judge, there was no suggestion that he had had anything to do with the care of A, and it was not suggested that he was or could have been a perpetrator.

13. In a clear and well crafted judgment to which we would wish to pay tribute, Judge Garner carefully analysed the medical evidence, which was unanimous in concluding that A had been the victim of the serious non-accidental injuries identified by the medical evidence. His findings on this part of the case have not been, nor could they be challenged. The judge then listened carefully to the oral evidence of the mother, the father and the grandmother, and stated his conclusions in paragraphs 66 to 70 of his judgment. We set them out in full.

66. I have considered all the reported accounts, statements and then the evidence of the mother, father and grandmother with care. There are not only variations of account prior to their evidence. In their evidence itself there were movements apparently towards an end. Mother moved to emphasise her role as primary carer and to express full confidence in the family. Father moved to reduce his own role almost to absurdity and also to reduce grandmother’s role even below that described by her. Grandmother showed imaginative adjustments to a number of phrases not least what “once or twice” meant at various times.

67. The truth has a consistency, which enables accounts given at different times to match each other and form a laminate cogency. Precisely the opposite has applied in the case of the mother, father and grandmother. Overall there is no evidence in the case of sufficient cogency for me to find any of the competing facts contended for on behalf of mother, father and grandmother although I go very near, as will be clear, to the findings sought by mother about a conspiracy by father and grandmother. It is wholly clear that A was in the overall care of mother, father and grandmother when she was injured and, on any view, any of them could have been the perpetrator. There is no proper basis actually to exclude any of them although feelings and suspicions could be another matter.

68. I shall, therefore, find in a moment, as sought by the local authority, that all three must be considered perpetrators. I am also driven to conclude that there has been a conspiracy to conceal the truth over what happened on at least two occasions in that household. The truth remains locked within that household and unless and until it is let out future assessments will be difficult, if not impossible, exercises. The partners in the conspiracy have been mother, father and grandmother and could, I suppose, extend to grandfather as well. I accept the truth of the note of the interpreter’s conversations with mother.

69. I am firmly of the view that whilst father and grandmother have been willing partners in that conspiracy, mother herself has been an unwilling partner. So long as she remains in that conspiracy, the consequences will be serious for her as for the others. I will set out the numbered findings.

(1) A sustained the following injuries: (a) bilateral subdural haematomas; (b) a right temporal sheering injury; (c) bilateral retinal and pre-retinal haemorrhages; (d) a metaphyseal fracture of the distal right tibia. All of those I now call “the injuries”.

70. On any view those findings establish the threshold criteria under section 31 of the Children Act both as to actual harm in respect of A and likelihood of harm to her in the future were she to return to the care of the mother, father and grandmother or any of them. Without fundamental changes in descriptions of the history, no doubt the same likelihood would apply to any future child but that would be a matter for consideration in the future.

14. In our judgment, these findings, on the evidence available to the judge, are unassailable. Indeed, the judge’s whole approach to the case is impeccable. The findings are also, we think, to an extent, sympathetic to the mother, and the second sentence of paragraph 69 before the judge sets out his detailed findings appears to offer her the first of a number of opportunities subsequently made available to her to break away from the conspiracy which the judge describes.

15. Although the mother now seeks permission to apply to set aside paragraph 69(5) of the judgment, and in particular the judge’s conclusion that she could not be excluded as a potential perpetrator, she did not adopt that position prior to the hearing before Mr. Collier QC in April. In order to put her application in context, therefore, it is necessary to look carefully at the events following Judge Garner’s order.

Events after 11 December 2003

16. The mother was, of course, heavily pregnant at the time of the hearing before Judge Garner, and less than a fortnight after judgment, the mother gave birth to M, who was the immediate subject of care proceedings instituted by the local authority and removed from her mother the day following her birth pursuant to an order made in the Family Proceedings Court. We express some surprise in passing that the justices exercised their jurisdiction to make such a significant order when there were proceedings relating to A pending in the High Court. However, the justices’ order has not been the subject of any criticism by the mother in this court, and the proceedings relating to M have since been transferred to the High Court and consolidated with those relating to A.

17. Between 11 December 2003, the date of Judge Garner’s order, and the date on which the second “disposal” hearing of the care proceedings before Mr. Collier QC on 20 April 2004, it is clear that the mother was given a number of opportunities to break away, both physically and emotionally, from her husband, his household and the conspiracy described by the judge. The guardian in her report for the disposal hearing recounts a series of conversations between herself, the mother and the relevant social worker, the first taking place on 22 December 2003, the day before M’s birth, when she reports the mother as “clearly contemplating leaving the family home and taking up residence in a hostel as she had been told by her legal advisers that this was the only way that she may be able to resume the care of A and have care of her unborn baby”. However, the mother is reported as describing the difficulty of leaving her “life partner” and how difficult it would be to survive without her husband. Both the guardian and the social worker put it to the mother that she had a stark choice between the prospect of caring for her children in the future or remaining with her husband. At that point, however, the mother was still asserting that she did not know who was responsible for A’s injuries.

18. It is not the function of this court to chart in detail each of the attempts of the guardian and the local authority to persuade the mother that her only prospect of caring for her children lay in the court knowing the truth about what happened to A, and (on the basis that she was not the perpetrator) in the mother breaking away from the true perpetrator of the injuries. She was offered places at two refuges following the birth of M, which the local authority was prepared to fund, but chose to return to and remain in her in-laws’ house with her husband

19. In addition to discussions with the guardian and the social worker, the local authority also arranged for the mother to be interviewed by a psychologist, Ms RH, who reported on 21 February 2004. The purpose of the report was to obtain an expert opinion on the mother’s understanding and acceptance of the judge’s findings and the injuries suffered by A. Ms RH’s opinion was as follows: -

It is my view that (the mother) does understand the judgment of HH Judge Garner in all his findings. However, she does not accept any of the findings and continues to maintain that neither she not her husband or mother in law were responsible for the injuries, and denies any sort of conspiracy. She understands the implications of this position for any further children she may have in the future. She does not intend, nor would she be able, to leave the security of the family and live completely on her own in order to apply for rehabilitation of the child (sic) to her care.

20. Against the background we have described, and in the light of Ms RH’s opinion, it is not surprising that on 20 April 2004, at the same time as seeking full care orders in relation to both children, the local authority also applied to free them for adoption.

The hearing before Mr. Peter Collier QC

21. Unfortunately, by this time, Judge Garner had retired, and the second limb of the care proceedings came before Mr. Peter Collier QC sitting as a deputy judge of the High Court on 19 and 20 April 2004. We were told at the bar that much of this hearing was taken up by discussions between the mother and her legal team, and the case extended into a second day as a consequence. In the event, however, there was no change in the mother’s position.

22. Thus the second and consequential set of orders against which the mother wishes to appeal are the care orders made on 20 April 2004 in relation to both children, these orders being combined with permission given to the local authority to refuse contact between the children and their parents. The care orders were, however, only a means to an end, and were immediately overtaken by the orders freeing the children for adoption. In order to free the children for adoption, the deputy judge dispensed with the consent of both parents as being unreasonably withheld. This, on the facts as presented to him, he was manifestly entitled to do.

23. We should make it clear that we do not use the word “unfortunately” at the beginning of the paragraph 21 as being in any way critical of Mr. Collier or the orders he made. We have little doubt that Judge Garner would have made the same orders as those made by Mr. Collier. There is, however, clear guidance from this court that both limbs of a split hearing should be taken, wherever possible, by the same judge so that if, as here, there are dramatic developments post care order, the judge who made the orders is available to deal with them.

Events since the hearing on 20 April 2004

24. The mother’s case is that she has now broken free. She has gone to a refuge. On 15 July 2004 she underwent a termination of the pregnancy, which would otherwise have resulted in the birth of her third child by the father. Furthermore, she made the decision to have an abortion without reference to the father.

25. The mother has made three statements dated 25 May 2004, 26 July 2004 and 23 August 2004 in which she retracts her previous evidence that she was the principal carer of A. She accuses her mother-in-law of violence and cruelty towards her, including locking her out of the house in winter. She accuses her father-in-law – previously said to have had nothing to do with the baby – of being regularly drunk in charge of A. She says the child slept in her in-laws’ bed, although the mother was woken up in the night in order to feed the child. She says in terms that shortly before A was admitted to hospital on the first occasion her mother-in-law shook the child. She also describes her mother-in-law of pulling the child by the leg, albeit that the date given for this incident is not consistent with the actual injury suffered by A. She also accuses her father-in-law of mishandling the child.

27. In her first statement, the mother remains loyal to her husband. In her second statement, however, she describes in greater detail the circumstances in which she became pregnant for the third time, and also an incident on 5 June 2004 when, in combination with his parents, the father met the mother and – it is not too strong a word – kidnapped her and took her back to the family address. The mother describes how she was able to use her mobile telephone to send a text message to a friend who alerted the staff at the refuge in which she was living and the police, who returned her to the refuge. This incident is admitted by the father and the grandmother.

28. In her final statement, the mother repeats an assertion that whilst she was living in her in-laws’ household she was taken to the Temple and made to swear on a holy text not to reveal what was going on in the house.

The case for the mother

29. In a clear and skilfully presented argument, Mr. Michael Harrison QC and Miss Valerie Sterling submit that the court must have regard to the fresh evidence, without which they acknowledged that there was no basis for this court to set aside the judgments and orders made below. Counsel realistically and, in our judgment, correctly accepted that applying the decision of this court in North Yorkshire County Council v SA [2003] 2 FLR 849, Judge Garner was right to conclude on the evidence before him that mother could not be excluded as a possible perpetrator, and that Mr. Collier QC was right to conclude on the material before him that mother’s current circumstances precluded an attempt to work towards reuniting her with her two children.

31. Mr. Harrison and Miss Sterling acknowledged that the Court will always be reluctant to set aside findings and orders where that will necessarily introduce further delay into the settlement of arrangements for the long term future of children, particularly after orders have been made freeing children for adoption. They argued, however, that it was fundamental to securing a just and acceptable regime leading up to the permanent removal of children from a parent that the evidential basis upon which findings and orders were made had not been tainted by the oppression of one parent by other parties to the proceedings. Where the integrity of the judicial process had been compromised, there was, they submitted, a compelling public interest in redressing the consequential injustice to the party prejudiced wherever it is possible to do so, and this weighed strongly against other welfare, judicial and public interest factors involved in ordering a re-hearing.

32. In this case, they submitted, the hearing before Judge Garner was materially compromised by the mother being effectively prevented from giving evidence in accordance with her wishes. Issues of fact that should have been forensically investigated were not addressed: in particular, the important issue of who had primary care of A during the critical periods prior to hospital admissions on 12^th and 17^th January 2003. The mother’s account of the paternal grandmother’s role as primary carer was inherently credible, leading to significant inferences against the grandmother as the perpetrator arising out of (a) the mother being forced to admit to the role of primary carer, and (b) the grandmother’s false denials of her role as such. None of this was properly investigated at trial. The possibility of the paternal grandfather being responsible was never considered.

33. Mr. Harrison and Miss Sterling invited us to find that there was no inconsistency between the mother’s case on appeal and the way her case was argued at trial. They also invited us to make full allowance for the cultural context in which the mother was placed and the control by and dependency upon the father’s family that arose. Mr. Harrison and Miss Sterling accepted that the Guardian and the local authority had afforded the mother opportunities to disclose more fully the circumstances that prevailed in the household when A was injured. They submitted that her failure to do so at those times was accounted for by the continuing influence of the father’s family. She was not free to speak openly then any more than she had been at trial.

34. Mr. Harrison and Miss Sterling argued that the mother’s assertions that she never wished to live with the father or his family again were entirely consistent with her conduct since leaving their household. Had she been free so to express herself in the period leading up to the disposal hearing before Mr. Collier QC, it was clear, they submitted, that the Guardian and local authority would have entertained the possibility of working towards rehabilitation of the children and mother. Her current circumstances were in themselves a sufficient basis for returning to that as a legitimate objective consistent with the welfare of her children. Given the failure of the earlier proposals for placement with prospective adopters, there were no overriding welfare considerations ruling this out.

35. Finally, Mr. Harrison and Miss Sterling submitted that the case raised exceptional and unusual circumstances calling for this court’s intervention. This court’s ability to deal with applications on a case-by-case basis was a sufficient safeguard against a ‘floodgates’ consequence.

The case for the local authority

36. In what were equally clear, moderate and well argued submissions, the local authority’s primary position was stated by Mr. Jeremy Posnansky QC and Miss Nicola Skeleton in five propositions at the outset of their skeleton argument. These were: -

37. Mr. Posnansky and Miss Saxton submitted that the new material on which the mother sought to rely did not constitute fresh evidence. They pointed out that at all the stages of the proceedings under review – a period of more than a year - the mother had had numerous opportunities to give the version of events which she now put forward. Those opportunities included her several witness statements (three before the "findings" hearing and one between that hearing and the "disposal" hearing), a number of meetings with the Guardian, with her own legal advisers and in oral evidence.

38. Mr. Posnansky and Miss Saxton relied in particular on the further opportunities provided to the mother in the period prior to the disposal hearing in April 2004, notably the discussions with the guardian and the social worker, the report of RS, and the first day of the hearing (19 April 2004) much of which was spent with the mother being closeted with her legal advisers while the court and other parties waited.

39. However, with their considerable experience of children’s cases, counsel accepted on the local authority’s behalf that, despite there being cogent grounds for not admitting the evidence which the mother sought to adduce, the court (a) would read her statements de bene esse, and (b) might approach this aspect less strictly than under the Ladd v Marshall and ordinary civil appeal test. Counsel recognised that there was support for such an approach in Re S (Discharge of Care Order) [1995] 2 FLR 639, where, at 646D, Waite LJ said:

The willingness of the family jurisdiction to relax the ordinary rules of issue estoppel, and (at the appellate stage) the constraints of Ladd v Marshall[1954] 1 WLR 1489 upon the admission of new evidence, does not originate from laxity or benevolence but from recognition that where children are concerned there is liable to be an infinite variety of circumstance whose proper consideration in the best interests of the child is not to be trammelled by the arbitrary imposition of procedural rules. That is a policy whose sole purpose, however, is to preserve flexibility to deal with unusual circumstances.

40. Counsel pointed out, however, that Waite LJ had then gone on to say (in a passage which followed immediately:

In the general run of cases the family courts (including the Court of Appeal when it is dealing with applications in the family jurisdiction) will be every bit as alert as courts in other jurisdictions to see to it that no one is allowed to litigate afresh issues that have already been determined. The maxim 'sit finis litis' is, as a general rule, rigorously enforced in children cases, where the statutory objective of an early determination of questions concerning the upbringing of a child expressed in s 1(2) of the Children Act is treated as requiring that such determination shall not only be swift but final.

41. Mr. Posnansky and Miss Saxton submitted accordingly that even applying the more relaxed test referred to by Waite LJ, the mother's evidence should not be admitted: it would amount to allowing the mother to litigate afresh issues that have already been determined and in circumstances where she had ample opportunity to give whatever evidence she wished. Further, as Waite LJ made clear, the statute required the court to have regard to the general principle that any delay is likely to prejudice the welfare of the child. This evidence, they argued, if admitted by the Court of Appeal, would require further hearings at which the mother, father, and both grandparents (and other witnesses) would have to give evidence. The court would need to analyse and consider any new evidence carefully, not only on its own merits but also in the context of the evidence they previously gave.

43. Mr. Posnansky and Miss Saxton accepted that it was possible the mother was overborne and pressured by the father and his family to conceal the truth, particularly before the "findings" hearing. Whether she was, however, was unclear. That, of course, was why the local authority was at pains to ensure that she understood Judge Garner’s judgment and its implications for her and the children and why Ms Hedges was instructed. Similarly, the mother was given advice about separating and/or moving to a refuge, but did not do so until a very late stage. She had had many chances and taken none of them, despite the fact that she was aware of the consequences of her action (or inaction) so far as her ability to care for the children in the figure was concerned

44. Furthermore, counsel complained, the mother has still not explained how or by whom the injuries were caused. Neither her 25 May 2004 statement nor the one made on 26 July 2004, they submitted, explained either occasion when the serious injuries occurred. She implied that the paternal grandmother may have injured A, saying that the grandmother was the child's main carer, and that she was a nasty woman. But she shed no light on any material occasion when the child was or may have been injured. Further, she now sought also to point the finger at the paternal grandfather accidentally/carelessly injuring A when he was drunk.

45. There was, in sum, counsel submitted, nothing in either of the mother's statements, which could lead to a finding excluding her as a possible perpetrator within the appropriate test. The injuries remain unexplained and she was an important member of the household where A was seriously injured on two occasions.

46. Mr. Posnansky and Miss Saxton further submitted that the mother's May 2004 statement was also worrying in that she continued to protect the father, saying, for example: “My husband has always been extremely nice to me, he is a nice and kind man and I know that he does not know the majority of what really went on in the household whilst he was at work or asleep”. As a full member of the household, the father would have known what went on in it. Further, if there was a conspiracy in which the mother was overborne by the father's family, the father must have known; yet in the statement the mother ignored this and sought to exculpate him. It could not, counsel submitted, have been out of fear, because (a) the statement was largely an attack on his family and their home of which he was a member, and (b) the statement was made on the day the mother moved to a refuge.

48 In relation to welfare issues, Mr. Posnansky and Miss Saxton submitted that even if the mother's account were true, the outcome would be the same. The history, including her own failure to be frank and honest, meant that the children could not safely be placed with her. The children's interests require that they are placed and settled without further delay. A re-hearing – perhaps two ("findings" and disposal") – would involve delay, which was not in the interests of either child.

49. Counsel pointed out that a prospective adoptive family had been identified and that it was hoped that they would be formally "matched" in October. A (aged 20 months) had been with temporary foster parents for more than 18 months and M (aged 8 months) for most of her life. They needed to be settled without delay. Finally, although her interests were far from decisive, Mr. Posnansky and Miss Saxton submitted that no unfairness to the mother was involved, given the shifting nature of her evidence and the numerous opportunities she had been given to extricate herself.

The case for the grandmother

50. For the grandmother, Miss Alison Grief had plainly decided that attack was the best form of defence. The grandmother had filed a statement categorically denying responsibility for any of A’s injuries and refuting the mother’s allegations against her. In her skeleton argument, Miss Grief adopted the arguments advanced by the local authority, amplifying those arguments by reference to the evidence. Miss Grief complained of the injustice to her client in the matter being re-opened.

The case for the guardian

51. For the guardian, Miss Pamela Lawrence also adopted the arguments submitted by the Local Authority in their entirety. She submitted that the welfare and avoidance of delay principles contained in section 1 of the Children Act 1989 rendered it is essential that there should be a closure to this issue. She pointed out that the previous hearings took over a year to be dealt with. The Guardian was concerned that even if a rehearing were expedited it would take some time for the matter to be listed and finally be dealt with. Furthermore, she submitted, second time around there would not be a different resolution. There were no new issues to be ventilated that were not before the court at first instance. The mother had had every opportunity to raise these “new issues” between the finding of fact hearing and the disposal hearing.

52. The Guardian further asserted that any delay that a re-hearing would cause was not likely to be in the interest of the children. They were at an age when significant attachments were beginning to form. Disruption at a later stage in their lives might well cause harm.

53. Miss Lawrence submitted that the delay would also raise certain practical difficulties. There were potentially suitable adoptive parents who were available to adopt both girls, thereby keeping them together. Taking into consideration the best interests of the children generally and in particular A’s medical history, the children’s ethnicity, cultural and religious background, finding another potential adoptive parents might prove “virtually impossible” (our emphasis).

54. For this latter proposition, Miss Lawrence sought to rely on a statement filed in the appeal by a local authority social worker; Miss JB dated the 23^rd August 2004. In fact what Miss JB said was: “Given the children’s ethnicity and cultural heritage this may prove difficult” (our emphasis). When this was pointed out to her, Miss Lawrence acknowledged that her skeleton argument put the matter too high.

The position of the father

55. The father initially filed a Respondent’s Notice supporting the mother’s position and also filed a statement. However, at the hearing, Mr. Burdon for the father, informed us that he was instructed to withdraw the Respondent’s Notice and the supporting statement, and to take no further part in the application. We accordingly gave the father permission to withdraw.

Discussion and analysis

56. Although we recognise the strength of the local authority’s argument, we came to the clear conclusion that, on the facts of this particular case, we preferred the submissions of Mr. Harrison and Miss Sterling, and that the outcome we identified in paragraph 3 of this judgment is the correct one. We reached those conclusions for the following reasons.

57. As a general proposition we think that it is in the public interest for those who cause serious non-accidental injuries to children to be identified, wherever such identification is possible. It is paradigmatic of such cases that the perpetrator denies responsibility and that those close to or emotionally engaged with the perpetrator likewise deny any knowledge of how the injuries occurred. Any process, which encourages or facilitates frankness, is, accordingly, in our view to be welcomed in principle

58. As a second background proposition, we are also of the view that it is in the public interest that children have the right, as they grow into adulthood, to know the truth about who injured them when they were children, and why. Children who are removed from their parents as a result of non-accidental injuries have in due course to come to terms with the fact that one or both of their parents injured them. This is a heavy burden for any child to bear. In principle, children need to know the truth if the truth can be ascertained.

59 We do not share the view of the local authority that the fresh evidence produced by the mother does not form a basis for granting permission to appeal and for allowing the appeal. In particular, we do not agree that the evidence is incapable of removing the mother’s status as a possible perpetrator, or explaining the truth about how A was injured.

60. As to the admissibility of the evidence, we agree with Mr. Harrison’s and Miss Sterling’s analysis of the applicability of the principles in Ladd v Marshall to the facts of this case. Furthermore, we think that there is an element of technicality in the local authority’s position. Had the children not been freed for adoption, there would have been no argument about the capacity of the court to undertake a re-hearing, or about the propriety of it doing so. The mother would have been entitled to apply to the court under section 39 of the Children Act for the care orders in relation to the two children to be discharged. No permission would have been required for such an application. The court would have been bound to entertain the mother’s application, and the evidence she has produced in support of her application for permission to appeal would have been admissible. The court would almost certainly have re-opened the perpetrator issue.

61. Care orders do not remove parental responsibility: orders freeing children for adoption do. The natural parent of a child freed for adoption ceases to be the child’s parent, and loses all parental responsibility. No criticism can be made of Mr. Collier for freeing the children for adoption on the facts known to the court on 20 April 2004. But it is, in our judgment, quite another matter to erect the freeing orders (when the children have been neither placed for adoption nor adopted) as an obstacle to the mother’s attempt to re-open the perpetrator issue.

62. We do not think that this is a proper case for a detailed analysis of the “real possibility or likelihood” test to be applied by the court where there is insufficient evidence to make a positive identification of the perpetrator. We think it sufficient to say that, in our judgment, Mr. Harrison and Miss Sterling have satisfied us that the mother’s evidence might reasonably lead, on a re-hearing, to a finding that the mother can be excluded as a possible perpetrator. Furthermore, bearing in mind the way in which the mother’s attitude has evolved over the past five months, it would be unrealistic not to take into account the possibility of her giving further relevant evidence. These considerations, in our judgment, are sufficient for the purposes of this appeal. It is manifestly not for this court to become engaged with the facts: that is for the court of trial. Mr. Harrison and Miss Sterling do not, in our judgment, have to go so far as to establish that the mother’s evidence might reasonably lead to a finding that either the father or the grandmother was the perpetrator, although we do not rule that out as a possibility: it is sufficient for them to establish a reasonable prospect that the evidence, on a re-hearing, may enable the mother to be excluded under the approach adopted in this court in North Yorkshire County Council v SA [2003] EWCA 839, following the decision of the House of Lords in O and N, Re B[2003] UKHL 18.

63. Above all, however, we are satisfied that, on the facts of this case, justice requires the question of perpetration to be re-visited. The position to which Judge Garner was driven is manifestly unsatisfactory. He found a conspiracy of silence between three possible perpetrators, two willing and one unwilling, none of whom was telling the truth. In our view, it would require very powerful considerations indeed to leave that unsatisfactory state of affairs untouched if there is a realistic basis upon which it may be rectified.

64. We fully accept that one such consideration would be the welfare of the children, if their welfare would be seriously compromised by the issue of perpetration being reopened. There has, of course been delay, and we acknowledge the principle contained in section 1(2) of the Children Act 1989 that any delay in determining the question of the children’s upbringing is likely to prejudice the welfare of the children. But in this case, powerful considerations go into the scales on the other side. There are the questions of justice and the public interest in the identification of perpetrators to which we have already referred. In addition, what is at stake here is the possibility (at present no more than that, but a possibility nonetheless) that these children may be reunited with their mother. That is a very important consideration in the welfare equation.

65. Secondly, as Mr. Harrison pointed out in the course of argument, the delay caused by the mother’s belated change of stance is in fact quite small. Had she changed her position before 20 April 2004, it is unlikely that the court would have taken the course in did on that date. Mr. Harrison has provided a chronology of the mother’s contacts with her lawyers post April 20 leading to the mother’s first statement on 25 May 2004, a little over a month later, which in our judgment satisfactorily explains the delay between 20 April and the making of the first statement.

66. Furthermore, in this context, we agree with Mr. Harrison and Miss Sterling that the mother is entitled to invite the court to make full allowance for the cultural context in which she was placed, namely the control by and her dependency upon the father’s family that arose. This mother is not uneducated or illiterate, but she is very young. She is a relative newcomer to this country and does not speak English. She was living in a household and a culture where, inevitably, her in-laws and her husband dominated. We do not find the difficulties she has encountered in making a break from that environment, and from her husband in particular in the least surprising. Subject to what we say in paragraph 73 below, we equally do not find it in the least surprising that her changed evidence has emerged in fits and starts. We accept that, if she is to maintain her stance, she faces substantial isolation, possible ostracism, and all the difficulties likely to be encountered by a single Sikh woman, compounded by the fact that she does not at present speak English. In our judgment the break must have been very difficult indeed, and we do not, as a consequence, think that her evidence falls to be devalued because it has emerged as and when it has.

67. As to the prejudice to the children, we acknowledge the force of Mr. Posnansky’s simple identification of the time A in particular has been in foster care. But neither child has been placed for adoption. It should be possible for the re-hearing of the perpetrator issue to take place in the autumn, and it will then be possible to make final plans for the children. A’s position, in particular, is likely to remain unclear in the sense that we are unlikely to know for some time yet whether she will suffer any permanent disability as a result of her injuries.

68. In this context we are, we have to say, somewhat surprised by the stance taken by the guardian, the bulk of whose skeleton argument we have reproduced above. Quite apart from the exaggeration of JB’s statement as to the difficulty of finding prospective adopters, there is nothing to suggest that the guardian has given any thought to the wider considerations of the children’s interests identified in this judgment.

69. We would like to make it clear, however, that despite our surprise at the guardian’s attitude to the current applications, we have considerable sympathy with her and with the local authority in their attempts to assist the mother in making the break which she now appears to have achieved. The frustrations of care proceedings for a local authority in particular are many and various. Human beings do not behave rationally or as they should. They often come to appreciate reality very late in the day – and sometimes too late. This we understand. We were, however, entirely happy to accept Mr. Posnansky’s assurance that if the appeal was allowed, and if the outcome of the re-hearing was a realistic possibility that the children could be re-united with their mother, the local authority would engage professionally with the mother without any preconceptions based on its attitude to the current appeal.

70. For all these reasons, we concluded that the proper outcome to these applications was as set out in paragraph 3 of this judgment.

The attitude of the father and the need for absolute frankness on the mother’s part

71. As stated in paragraph 55 above, the father put in a Respondent’s notice and a statement supporting the mother’s applications. Before they knew that the father was going to withdraw, Mr. Posnansky and Miss Saxton spent some time in their skeleton argument expressing their anxiety about the father’s stance, and making the suggestion that the mother and father were acting in concert. Were this to be the case, they submitted, the mother’s position would be substantially – perhaps fatally -undermined.

72. Judge Garner said of the father: -

To describe father in the witness box as manifestly unimpressive is almost a kindness. He reduced all his earlier accounts of family history, guarded though they had been, to a virtual nonsense. In contradistinction to mother, however, he never lacked confidence and he did not shrink from asking his own questions of both Mr. Bickler and Mr. Harrison, sometimes starting with the words, “Even you”.

This court has made every allowance for the enormously difficult position in which you find yourself. We understand that you feel alone, and face an uncertain future in a foreign country where you do not speak the language.

But what you must now understand is that from now on you must tell the court the truth, the whole truth and nothing but the truth. Nothing else will do. Judge Garner found that you were an unwilling part of a conspiracy of silence. That means that you know what happened to A. You must now tell the court frankly and fearlessly what happened to A, even if it does not reflect well on you. The only way you stand even a possible chance of being reunited with your children is if you tell the full and complete truth about what happened to A. If there is even a whisper of conspiracy or collusion with your husband or anyone else, that will be the end. The children will be adopted. They cannot wait much longer, and this is your last chance. There is no guarantee, even if you tell the full truth, that the children will be returned to you, but what is absolutely certain is that if you do not tell the full truth, the children will not be returned.

Postscripts

74. We have three postscripts. Firstly, it will be for HH Judge Peter Hunt to allocate this case. We suggest that he makes an approach to HH Michael Garner (as he now is) with a view to the judge coming out of retirement to take the re-trial. We cannot, of course, insist that he do so. He would, however, on the material available to us, be the most suitable tribunal. If, in the event, he is either unwilling or unable to do so, we would be content that the re-hearing be taken by Judge Peter Hunt or as he, in his capacity as Designated Family Judge for Leeds may allocate, perhaps in consultation with Bodey J, the Family Division Liaison Judge for the North Easter Circuit. Self-evidently, however, whoever takes the re-hearing should have High Court Status, whether as a High Court Judge or as a Circuit Judge sitting as a High Court Judge under section 9 of the Supreme Court Act. With all respect to Mr. Collier, whose competence to hear the case we do not doubt, we do not think that the re-hearing should be taken by a judge who does not sit full-time, since there must be a possibility of further hearings, for which judicial continuity would be essential.

75. The second postscript relates to the status of the two divorce petitions, one filed by the husband against his first wife, and the second filed by the second wife against the husband. These were not available at the hearing before Judge Garner, and there is likely to be an argument as to their admissibility. We do not think it appropriate to express a view on the admissibility of these documents. We think this is pre-eminently a matter for the trial judge. We do not know, for example, if the second wife is available to give evidence.

77. Our final postscript is to make explicit, if we have not already done so, that the outcome of the re-hearing is entirely at large. We express no view about it. The findings, which will fall to be made by the judge, will be a matter entirely for the judge. Our function has simply been to say that the facts now advanced by the mother are capable of leading to a given result, and that there should be a re-hearing. That is all we need to say, and is all we are saying.

Conclusion

78. Our order will, accordingly, be in the form expressed in paragraph 3 above

ORDER (made on 24th August): Mother's application for permission to appeal granted; appeal allowed; orders freeing both children for adoption set aside; children to be made subject of Interim Care Orders in favour of the local authority; question of identity of perpetrator of non-accidental injuries to the elder child, identified by the judge on 11 December 2003, will be remitted to a judge at first instance, preferably the judge who heard the case, for further investigation and consideration; application to reopen the question of the injuries to be listed for directions before His Honour Judge Peter Hunt, the designated family judge for Leeds, on 2nd September 2004 at 10 am, with a time estimate of one hour.

(Order does not form part of approved judgment)