AB v BG & Ors

After we had heard this case on 17 December 2008, we announced our decision, but reserved our reasons. We granted permission to appeal; we allowed the appeal to the extent of replacing the schedule of the judge’s recorded findings of fact with an amended schedule in terms which the parties had been able to agree; we directed that the judge’s judgment should henceforth be read in the light of the judgments to be given by this court; and we directed that the welfare limb of the proceedings, due to be heard on 23 February 2009, should be taken by a different judge to be allocated by the Liaison Judge for the North Eastern Circuit.

This judgment now sets out my reasons for reaching the decisions outlined above. As the case is ongoing, I propose to say only that which is necessary for the resolution of the appeal. Nothing in what follows should be taken as expressing any view about the ultimate outcome of the case.

The father of a small child, supported by the mother of that child, and of an older child sought permission to appeal against findings of fact made by HH Judge Carr QC in care proceedings under Part IV of the Children Act 1989 (the 1989 Act) relating to the two children and currently pending in the Sheffield County Court.

The judge had been conducting what has become known as the first limb of a split hearing of care proceedings, in which the local authority seeks findings of fact sufficient to satisfy the so called threshold criteria under section 31 of the 1989 Act. The findings which the parents sought to impugn in this court relate to a third child born to the parents, whom I will call AB. AB was born on 5 January 2007 and died on 7 August 2007 at the age of 7 months. His death, it should be said, was by no means the sole basis upon which the local authority sought to satisfy the court that the threshold criteria under section 31 of the 1989 Act had been satisfied.

In accordance with the current practice, the local authority had filed a schedule of the findings which it invited the judge to make. That schedule began, under the heading GENERAL FINDINGS with the following five essentially factual and uncontroversial paragraphs:-

In the second section of the document, under the heading THRESHOLD FINDINGS, there were only limited references to AB. These were as follows:

The Schedule goes on to allege that the injuries identified in paragraphs 1.3.1 and 1.3.2. above were caused whilst AB was in the parents’ care and that neither could be excluded from having caused the injury.

The medical evidence relating to AB called by the local authority at the hearing before Judge Carr came from one of the treating paediatricians and a forensic pathologist. The latter had carried out a post mortem on AB, and had reached the conclusion which I have already recorded in sub-paragraph 1.2 of paragraph 5 above. The pathologist explained that conclusion further in his evidence in chief:-

Although Dr W was cross-examined about the possibility of AB having been smothered, he maintained his position that the cause of death was unknown. “We don’t know. The cause of the hypoxic ischemic encephalopathy has not been determined, after extensive investigation.”

Once the advocates had concluded their examination of the pathologist, the judge was asked if she had any questions. She immediately asked: “Could this be, on balance, an unlawful killing? The pathologist’s response was that he had “no pathological findings to support that contention”. Pressed by the judge, he said it was possible. But once again, he could not confirm it. The judge then put to him: “It is beyond possible, it is probable, I suggest to you. In the light of what you now know”. The pathologist replied “How probable, again, I can’t say how probable”. The judge replied that that was a matter for her, and that she was going to record it is “probable”.

This exchange brought junior counsel for the father to her feet. She asked the pathologist to confirm his last answer, and he stated: “My view has to be formulated on pathological evidence, and there’s no pathological evidence to support it”. The judge then commented “I’m not altering my note”.

Counsel for the father then applied for an adjournment so that evidence could be assembled and called to deal with the allegation that one or both of the parents had killed AB. The judge refused. However, in paragraphs 49 to 56 of her judgment, the judge dealt with the circumstances surrounding AB’s death, and in paragraph 56 made a finding that AB had been unlawfully killed by means of suffocation. She concluded this paragraph with the following two sentences:-

The two “core” grounds of appeal are:-

In my judgment, both grounds are made out.

I am the first to acknowledge that a judge of Judge Carr’s experience is entitled to take a proactive, quasi-investigative role in care proceedings. Equally, she will make findings of fact on all the evidence available to her, including her assessment of the parents’ credibility; she is not limited to the expert evidence. I am also content to decide the question in this appeal on the basis that a judge in Judge Carr’s position is not required slavishly to adhere to a schedule of proposed findings placed before her by a local authority. To take an obvious example: care proceedings are frequently dynamic and issues emerge in the oral evidence which had not hitherto been known to exist. It would be absurd if such matters had to be ignored.

All that said, however, the following propositions seem to me to be equally valid. Where, as here, the local authority had prepared its Schedule of proposed findings with some care, and where the fact finding hearing had itself been the subject of a directions appointment at which the parents had agreed not to apply for various witnesses to attend for cross-examination, it requires very good reasons, in my judgment, for the judge to depart from the schedule of proposed findings. Furthermore, if the judge is, as it were, to go “off piste”, and to make findings of fact which are not sought by the local authority or not contained in its Schedule, then he or she must be astute to ensure; (a) that any additional or different findings made are securely founded in the evidence; and (b) that the fairness of the fact finding process is not compromised.

It is, of course, axiomatic that judges are entitled to disagree with an expert witness. But this proposition also has an equally obvious corollary. There must be material upon which the judge in question can safely found his or her disagreement, and he or she must fully explain the reasons for rejecting the expert’s evidence: - see, for example, Re M (Residence) [2002] EWCA Civ 1052, [2002] 2 FLR 1059 at paragraph 57, per Thorpe LJ.

In the instant case, I think it a great pity that the judge went down the “unlawful killing” road. It was not a road signposted by the Schedule of Findings prepared by the local authority. It was in no sense necessary for the satisfaction of the threshold criteria. In addition, and more significantly, it was not supported by the medical and pathological evidence.

In my judgment, this appeal succeeds first and foremost on the second of the two “core” grounds. However, once the judge had embarked on unlawful killing, and indicated that in her view it was “probable”, she was, in my judgment, plainly wrong to refuse the father an adjournment, however, time-consuming and inconvenient the delay may have been. It is, with respect to the judge, not enough for her to say, as she did in paragraph 17 of her judgment, that “it was always apparent that the court intended to investigate the cause of AB’s death”.

The major point, however, in my judgment, is that the evidence, taken as a whole, did not warrant a judicial finding that AB was unlawfully killed by one or both of his parents, even taking into account the fact that the judge was entitled to make an adverse assessment of the parents’ (and in particular the father’s) credibility.

Most of the findings made by the judge were open to her on the evidence and can stand. Once we had indicated our provisional views on the “unlawful killing” point, counsel were able, without difficulty, to reach agreement on an amended schedule of findings which leading counsel for both parents realistically and sensibly conceded crossed the 1989 Act, section 31(2) threshold. That is the document upon which any further assessments will be conducted, and that is the document upon which the court will approach the welfare stage of the proceedings.

Counsel also began the process of going through the judgment excising passages which impinged upon the deleted findings. In my judgment, this exercise was misconceived, and is unhelpful. If, as will happen, the welfare limb of the hearing takes place before a different judge, that judge will have to read Judge Carr’s judgment with our ruling and our judgments in mind. Speaking for myself, I am confident that any such judge will be able to sort the wheat from the chaff and will readily be able to distinguish between those parts of the judgment which are acceptable and which are not.

I am very conscious of the fact that in paragraphs 74 to 76 of her speech in Re B (Care Proceedings: Standard of Proof) [2008] UKHL 35, [2008] 2 FLR 141, Baroness Hale of Richmond gave forceful expression to the proposition that the same judge should hear the fact finding and the welfare aspects of a care case, where there had been what has become known as a “split hearing”. At paragraph 76, Baroness Hale said this:-

I entirely and respectfully agree with Baroness Hale that in the ordinary case where there is a split hearing then, as a matter of good practice, the same judge should take both limbs. Indeed, that is already the rule: - see Re G (Care Proceedings: Split Trials) [2001] 1 FLR 872. However there will, inevitably be exceptions. What, for example, if the judge dies or is taken seriously ill after he or she had heard the first limb? In my judgment, it is unlikely to be proportionate, or in the interests of the child or children concerned or in conformity with the overriding objective for the court to start again from scratch.

Similar considerations, it seems to me, also apply where a litigant has legitimately lost confidence in the judge, or where there is an appearance of bias. Here, whilst I have no doubt whatsoever that Judge Carr would try the second limb immaculately, it is understandable that the father in particular may think that she is biased against him, having found him to have unlawfully killed one of his children without giving him a proper opportunity of dealing with the allegation.

We were very anxious to avoid a re-hearing of the factual issues.

I agree.

I also agree.