H (A Child), Re

J U D G M E N T

1. LORD JUSTICE THORPE: On 16 May 2005 Her Honour Judge Carr QC sitting in the Sheffield County Court gave a judgment on a fact-finding preliminary hearing in relation to a little girl, T, born on 18 January 1997. Amongst her specific findings were that T had suffered physical and sexual abuse that had come to light in the summer of 2004 as a result of a referral by the child protection teacher at her school. There had been very profound medical examinations conducted by great experts in the field, and they were in no doubt that T had been both sexually and physically abused (perhaps some or most of the physical abuse having been the consequence of the sexual abuse) and they were of the opinion that that abuse had continued after the inception of the ringing of the alarm bells.

2. The judge accepted the medical evidence in the main, but she was not convinced of the continuation of the abuse into phase 2, largely in reliance on the evidence of the allocated child protection teacher, Mrs Neave, who made a very strong, favourable impression on the judge.

3. Following her findings the judge had to consider who might have been responsible for the perpetration of the abuse. In paragraph 47 of her judgment she said, in considering the father:

"It seems plain given my earlier findings that there must be a real possibility in the North Yorkshire County Council sense that father could be a potential perpetrator. I am bound to say that there seem stronger candidates for committing the abuse but given T's general lack of warmth towards her father and the observations of [the social worker] and the likelihood that the abuse is more likely to be committed by a male than female, father falls within the North Yorkshire CC case. "

4. The application for permission to appeal the inclusion of the father within the class of perpetrators was received in this court on 27 May and was considered on paper by Scott Baker LJ on 14 July. He granted permission, and his reasons were thus expressed:

"The judge's findings in paragraphs 46 and 47 to justify leaving the Appellant within the pool of possible perpetrators of abuse seem somewhat thin. She does not distinguish between physical and sexual abuse. Nor does she deal with the issue of the Appellant's failure to protect T. Paragraph 2 of the skeleton argument says that clarification was sought from the judge of her reasons for finding that he had 'failed to protect' T, but no indication is given of whether there was any response."

5. In view of the fact that there was a timetable in the county court leading to the five-day disposal hearing in September, it was necessary to accelerate the hearing of the appeal and it was put in today as the only substantial case in the list. In the meantime leading counsel had come into the case: Mrs Hamilton QC for the appellant father, and Miss Theis QC for the local authority. Mr Scott represents the mother and Miss Lynch the guardian ad litem. The appeal envisaged by Scott Baker LJ has been fundamentally re-aligned by a letter which the Director of Legal Services for the local authority wrote to the Sheffield County Court on 22 June. The letter says that after the finding of fact hearing the local authority had received information to suggest a collusive relationship between the mother and Mrs Neave. And the writer enclosed a memorandum from the social worker, Kate Spriggs, recording the information which she had received. The enclosed memorandum is undated, but internal evidence suggests that it must have been written at some time between 7 and 17 June. The first paragraph reveals that whilst Miss Spriggs was supervising contact on 13 May, it emerged from conversation that there was a social relationship between the mother and Mrs Neave; that the mother contacts Mrs Neave at her home on the telephone to update her on the progress of the case. The mother also informed Miss Spriggs that she and Mrs Neave were going out for a meal. The foster mother, Mrs Carmon, on 19 May contacted Miss Spriggs to say that T had informed her of a dinner that mother was having with Mrs Neave. That was, of course, concerning, but far more concerning was the information that emerged on 7 June at a Looked After Child review. Mrs Neave told the review that T comes and finds her regularly, sometimes two to three times during the school day. Of crucial significance, Mrs Neave stated that in early April before the hearing conducted by Judge Carr, T had told her that she "sometimes used to play games with her grandfather and that they would often play games upstairs." Mrs Neave added that she had talked to Kerry (the mother) about that statement and that they had together decided not to tell Social Services. Miss Spriggs asked Mrs Neave for her reasons for this suppression. Mrs Neave said that the first reason was that neither she nor mother trusted Miss Spriggs to manage the situation appropriately and believed that Miss Spriggs would talk to T about her disclosure which might prevent T talking in the future. Secondly, they felt that they needed to allow T time to disclose and that they did not want to pressure her or lose her trust by disclosing the information. As a footnote, it appears that at the conclusion of the review Mrs Neave had taken T not straight back to school but to her home where she had had an opportunity to play with Mrs Neave's dogs before arriving at school for lunch.

6. This is obviously information with far-reaching consequences. There are consequences within the litigation. Obviously neither the mother nor Mrs Neave were full and frank in their sworn testimony. Obviously the judge must have an opportunity to re-evaluate the very favourable view that she received of Mrs Neave at the trial.

7. Clearly this is the first unravelling of one of the mysteries of the case, namely that T had never made any sort of disclosure that might explain either the physical or the sexual abuse. Clearly there are serious repercussions for Mrs Neave as an allocated child protection teacher. Was it appropriate for her to have developed a close social relationship with the mother? Most serious, how could she possibly square the suppression of this vital information with her obligations both as a child protection teacher but also as a witness on oath? Mr Scott (who has professional experience of teaching) has informed us that there will have to be a professional misconduct referral to consider whether Mrs Neave has a case to answer in the education field, as well as in the family justice system.

8. So it is absolutely inevitable that almost all the time and effort spent on the trial in May will have been wasted. The exercise will have to commence afresh, and I am relieved to hear from Miss Theis that there is a confident expectation that it can be conducted at the same time as the disposal hearing and without jeopardising the five-day time estimate. Given that the appeal must be allowed and a retrial ordered, I am cautious of going any further. I would not wish to circumscribe in any way the judge's task. The evidence at the retrial will obviously be more extensive and there may be yet other things to emerge between now and next September hearing. But Mrs Hamilton, with her customary skill and persuasion, seeks from us a further ruling that the judge fell into error in reaching the conclusions which she did in paragraphs 46 and 47 of her judgment. In a sense it might be said that that is an academic exercise, given that all questions must be at large at the retrial. However, equally, I see the force of Mrs Hamilton's position, given that she has legitimately engaged the appellate review by the filing of the notice of appeal and that has been endorsed by Scott Baker LJ who has drawn attention to possible deficits in the judge's ruling. Clearly it can be said that if the judge was in error it would be of assistance to her, as well as the doing of justice to the father, if those errors were made plain before she embarks on the retrial. So I will briefly consider paragraphs 46 and 47 of the judgment in the context of paragraphs 36 and 37 of Mrs Hamilton's skilful skeleton argument. In paragraph 46 the judge recorded elements of the history that went to the father's discredit. She said of the relationship between the parents:

"It is apparent that the relationship having started off well disintegrated shortly thereafter and the parties in fact lived together for only a very short period of time. I am satisfied on all the evidence that father on the breakdown of the marriage behaved in an appalling manner towards mother and indeed her family. I am satisfied that an injunction had to be obtained to try and control his behaviour. The other evidence would suggest that since the birth of his second daughter ... and his responsibility for bringing her up that father had settled down and is now a different man."

Paragraph 47 is the all important paragraph. The judge says:

"I remain very concerned that notwithstanding T has had contact with her father for some months now, that her attention seeking behaviour was apparent during the course of her contact with him, her continued dislike of going to contact to him and his attempt to distance himself from the frequency of contact does not do him any credit. I further accept the observations of [the social worker] as to T's desire not to live with her father on any account. It is noteworthy that his sister Claire Hollingsworth (and also the maternal grandmother) were aware of and had seen some of T's distress at having to visit her father. I do accept the submissions made by various parties that father would be an unlikely person to collude with mother. There is no strong relationship between the two and of course father had to learn of the abuse T had suffered from the Social Services Department. Given that I do not find that the physical and sexual abuse are necessarily committed by [the] same person I find it impossible to rule father out. It seems plain given my earlier findings that there must be a real possibility in the North Yorkshire County Council sense that father could be a potential perpetrator. I am bound to say that there seem stronger candidates for committing the abuse but given T's general lack of warmth towards her father and the observations of [the social worker] and the likelihood that the abuse is more likely to be committed by a male than a female, father falls within the North Yorkshire CC case ."

In relation to that, in paragraph 36 of her skeleton argument Mrs Hamilton breaks the judge's finding down into (a) sexual abuse prior to 9 July 2004; (b) physical abuse prior to 9 July 2004 comprising of (i) a group of old bruises and (ii) a large new bruise on her arm; (c) physical abuse between 9 June and 29 July; (d) absence of finding as to whether there was sexual abuse between 9 June and 29 July. Mrs Hamilton's subsidiary point is that it was common ground that her client could not have been responsible for either the abuse found in paragraph b(ii) or the abuse found in paragraph (c). As a further subsidiary point, Mrs Hamilton leans on the open door indicated by Scott Baker LJ: her client could only have been at risk of a finding that there was a possibility - a real possibility - that he was a perpetrator. He was either that or he was nothing. This was not a case in which if he was not a perpetrator, it could be said that he had failed to protect T. His wrongs were either wrongs of commission or they were nothing.

9. However Mrs Hamilton's fundamental submission is that there was simply no evidential basis for a finding that there was a real possibility that the father was a potential perpetrator within the direction given by this court in the North Yorkshire County Council case. She says that the only bases were: (a) the paragraph 46 finding of appalling behaviour on the breakdown of the relationship between the parents; (b) T's attention-seeking conduct in contact; (c) the general lack of warmth between them; (d) T's continued dislike of going to contact; (e) T's clear wish not to live with her father on any account; and (f) that it is more likely that abuse will be committed by a man than by a woman. That seems to be a fair summary of the effect of these two paragraphs of the judgment. The judge in the end had founded herself on three factors: (1) T's general lack of warmth towards her father; (2) the observations of Miss Spriggs; and (3) that likelihood of abuse is more frequently committed by a male than a female.

10. On that primary submission I am in the end against Mrs Hamilton. In a case as difficult as this it needs, it seems to me, very little beyond abundant opportunity to entitle a judge to say that there is a real possibility that "X" or "Y" could be a potential perpetrator. In my judgment there was sufficient within the three factors, as amplified by Mrs Hamilton's analysis, to justify the judge's conclusion. However, it seems to me that Mrs Hamilton is plainly entitled to succeed on both her ancillary points. He, the father, is only a potential perpetrator in relation to recorded abuse that falls within the sphere of opportunity. Clearly he cannot have been a potential perpetrator in relation to the large new bruise on her arm or the physical abuse between 9 June and 29 July. Those factors are factors which the judge is entitled to bring into the account in weighing whether he is or is not a potential perpetrator in relation to other acts that cannot be so readily excluded. Equally, it seems to me that the judge fell into error in saying that the father was additionally or alternatively responsible for a failure to protect the child. That does not seem to me to be evidentially sound and I do not accept Miss Theis's submission that there is no incompatibility between finding at the same time both the wrong-doing by commission and the wrong-doing by omission. They are very distinct categories of abuse and it would be wrong to simply add in the possibility of wrong-doing by way of omission simply because there was a real possibility of wrong-doing by way of commission.

11. So the case must go back to the judge to retry the conundrum and mystery of what has happened to this child. Obviously she will reach her conclusions on the basis of evidence more extensive, and perhaps in other respects different, to that that was before her in May. Obviously all is at large. The only boundaries that I would feel able to impose are those that result from the acceptance of Mrs Hamilton's ancillary submissions.

12. MRS JUSTICE BLACK: Despite the very helpful submissions that have been made by Mrs Hamilton and Mr Saunders, I agree with the outcome that my Lord would impose on this appeal for the reasons that he has explained. That represents only partial success for the appellant, but it may have the beneficial effect of assisting everyone at the renewed hearing to a clear view of the issues when the question of the pool of perpetrators is reconsidered by Judge Carr in the light of the developments of which we have heard today.

13. Amongst all the other factors, the judge will, of course, have to consider the impact of the fact that of the various injuries that T has suffered two of the sets of injuries simply could not have been caused to her by her father. No doubt the submission that has been made to us today that it is inherently unlikely that there were two perpetrators of the abuse as opposed to one will be renewed to the trial judge. She will have the opportunity to consider that submission both in relation to sexual abuse and in relation to physical abuse in the light of the material that was before her on the original hearing and in the light of the new material, and will set out her revised findings in another very careful and thorough judgment.

(Appeal allowed in part; matter remitted to County Court for retrial; the Guardian's costs to be the subject of a detailed assessment; transcript of judgment to be made available to all parties at public expense; the disbursements in relation to the appeal shall be shared between the Appellant, the Local Authority and the Guardian. The Guardian's share of these costs shall be a proper expense on the Guardian's public funding certificate).