NH v A County Council & Ors

We heard this appeal on 13 May 2009. At the conclusion of the argument, we announced our decision, but reserved our reasons. These we now give. Permission to appeal had initially been refused on paper by Wall LJ on 24 February 2009, but granted at an oral hearing on 1 April 2009 by Rix and Wilson LJJ. The essence of our decision was as follows, namely that–

The father of two children (a boy, R who was born on 16 July 2005, and a girl, S who was born on 14 February 2008) appeals against findings of fact made on what has become commonly known as the first limb of a split hearing of care proceedings under Part IV of the Children Act 1989 (the 1989 Act) being conducted in the Bournemouth County Court by His Honour Judge Meston QC, resulting in a reserved judgment delivered by the judge on 3 December 2008. As will have been seen, we imposed reporting restrictions, and this judgment is being written anonymously.

The essential findings made by the judge, although not recorded in the order of the court issued on the following day, were that the father was the perpetrator of injuries suffered by both children (the injuries to S being much more severe than the injuries to R) and that the mother could be excluded as a perpetrator of the injuries to either child. It was not suggested that any person other than the mother and / or the father could have perpetrated the injuries. Moreover, nobody suggested that any of the injuries to either child was other than non-accidental; and nobody sought to persuade us that the threshold criteria under section 31 of the 1989 were not satisfied in relation to both children.

For the father, Mr. Robin Tolson QC argued either that we should reverse the judge’s findings and hold the mother to be the sole perpetrator; alternatively that we should order a retrial of the factual issue of which parent was responsible for the injuries. For the mother, Miss Kate Branigan QC invited us to uphold the judge’s findings: in the alternative, however, she too submitted that there should be a retrial. For the local authority, Mr. Anthony Hand submitted, as he had submitted before the judge, that the proper conclusion was that neither parent could be excluded as a possible perpetrator. This was also the view of the children’s guardian, who attended the appeal in person, and from whom, at our invitation, Mr. Hand took instructions. As the guardian’s position on the appeal was the same as that advanced by the local authority, she was not separately represented before us, although we had the benefit of a detailed skeleton argument filed on her behalf by Mr. Paul Storey QC.

The local authority had also filed a Respondent’s notice in which it submitted that the judge should have found that both the mother and the father remained within the pool of possible perpetrators, the evidence having failed to establish which one of them caused the injuries. In the event, we reached this conclusion on the father’s appeal, and thus did not need to hear Mr. Hand on the Respondent’s notice.

Before we turn to an examination of the particular facts of the case, we think it necessary to preface our conclusions by considering the impact of Re B on cases such as the present. We do so both because of the way in which the judge expressed himself, and in the light of the submissions made to us, notably the argument advanced to us on behalf of the father that, following Re B, it would be a rare case in which a judge could not identify the perpetrator of injuries to a child, and the argument advanced by both parents that if we did not uphold the judge’s findings, there should be a retrial. Mr. Tolson also submitted that the retrial should take place before a different judge.

In reaching his conclusion, the judge expressed himself in the following way: -

The judge then went on to give five reasons for reaching that conclusion, which we do not think it necessary to record in detail, although we will make a further short reference to them in due course. Nobody suggested that the judge had misdirected himself as to the law, and earlier in his judgment, the judge had cited the two decisions of the House of Lords in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 (Re H) and Re B. He had also cited the decisions of this court in Re K (Non-Accidental Injuries: Perpetrator: New Evidence) [2004] EWCA Civ 1181, [2005] 1 FLR 285 (Re K) and North Yorkshire County Council v SA [2003] EWCA Civ 839, [2003] 2 FLR 849, as well as the decision of the House of Lords in Re O (Minors)(Care: Preliminary Hearing) [2004] 1 AC 523.

Re B, of course, establishes that the standard of proof to be applied to all findings of fact in care proceedings is “the simple balance of probabilities test”: - see (amongst other places) the speech of Baroness Hale of Richmond at paragraph 73 and the “binary system” analysis contained in the speech of Lord Hoffman. We think it important, however, to make two points in relation to Re B, which, we think, is in danger of being misunderstood.

The first point is that the court is not required to identify a perpetrator simply because, as Lord Hoffman graphically puts it in paragraph 15 of his speech:

We do not resile from the propositions stated by this court in paragraphs 55 and 56 of its judgment in Re K:

We do not think that there is anything in these two paragraphs which is in any way inconsistent with the speeches in the House of Lords in Re B. The crucial phrases in the two paragraphs we have cited from Re K, however, are “wherever such identification is possible” and “if the truth can be ascertained”. Nothing in Re B, in our judgment, requires the court to identify an individual as the perpetrator of non-accidental injuries to a child, simply because the standard of proof for such an identification is the balance of probabilities. If such an identification is not possible – because, for example, a judge remains genuinely uncertain at the end of a fact finding hearing, and cannot find on the balance of probabilities that A rather than B caused the injuries to the child, but that neither A nor B can be excluded as a perpetrator - it is the duty of the judge to state that as his or her conclusion. To put the matter another way, judges should not, as a result of the decision in Re B, and the fact that it supersedes Re H, strain to identify the perpetrator of non-accidental injuries to children. If an individual perpetrator can be properly identified on the balance of probabilities, then for the reasons given in Re K it is the judge’s duty to identify him or her. But the judge should not start from the premise that it will only be in an exceptional case that it will not be possible to make such an identification. There will inevitably be cases - of which this, in our judgment, is one – where the only conclusion which the court can properly reach is that one of the two parents – or both - must have inflicted the injuries, and that neither can be excluded.

If and in so far as the judge fell into this particular trap by his use of the word “must” in paragraph 58 of his judgment (set out at paragraph 7 above) he was wrong to do so. We note, however, that when directing himself on the law he clearly stated in paragraph 44 of his judgment that “there do remain some cases in which the evidence is not sufficient or clear enough to allow the court on the balance of probabilities to exclude one parent, or positively identify the other as the perpetrator. In those situations, there is a danger to be avoided, of making findings based on speculation rather than on sufficiently substantial evidence”. In our judgment, that self-direction was manifestly correct.

The second point is to remind the profession of what Baroness Hale of Richmond said about split hearings in paragraphs 74 to 76 of her speech. For ease of reference we set these paragraphs out:-

We are in no doubt whatsoever, that paragraph 76 above in particular sets out the general rule which must normally be followed in both care and private law proceedings. There are, of course, exceptions to it. One such exception, relating to care proceedings, is the decision of this court in Re G and B (children) [2009] EWCA Civ 10 (Re G and B), in which a judge had made findings of fact, not sought by the local authority, that a father had intentionally suffocated a child. This court allowed the father’s appeal, set aside the finding, and directed that the welfare limb of the hearing should be taken by another judge: - see paragraphs 23 to 28 of the judgment, where the reasons for taking this course are set out.

Following the decision in Re B the President amended the guidance which he had previously issued in relation to finding of fact hearings in private law contact and residence cases in which allegations of domestic violence are advanced as a reason - for example - why a child’s contact with a violent parent should be restricted or prevented. The revised guidance was promulgated on 14 January 2009. Paragraphs 15 and 23 read as follows:-

Everybody knows the pressures of work on the circuit bench and on CAFCASS, and the extreme difficulties of timetabling the second limb of an adjourned hearing for a busy circuit judge who often sits to hear criminal as well as civil and family cases. In the instant case, therefore, we were naturally anxious to avoid a re-hearing before a different judge if at all possible.

Judge Meston had already spent 14 days on the factual issues. As we have already stated, there is no doubt that the injuries to both children, and in particular, the serious injuries to S were non-accidental. There is equally no doubt that the threshold criteria under section 31 of the 1989 Act are satisfied in relation to both children.. We appreciate that the judge made a finding that the father was exclusively responsible for the injuries to both children, and that we have set his finding aside. At the same time, we are in no doubt whatsoever that Judge Meston should continue with the hearing.

In our judgment, this case is not an exception to the rule promulgated in Re B. It is, we think, important to bear in mind two obvious points. The first is that the fact the threshold criteria under section 31(2) of the 1989 Act are satisfied does not mean that a care order has to be made: it simply means that the threshold to the making of a care order has been crossed, and that the judge has the power to make such an order if it, rather than no order or some other order, is in the best interests of the child.

The second equally obvious point is that a principal purpose of the fact finding exercise in the instant case is to inform the assessments of the parents and their respective families which are to be made for the purposes of the welfare hearing. Those assessments must now proceed on the basis that neither parent can be excluded as a perpetrator. The assessments themselves are no reason to disbar the judge from continuing with the case. We have no doubt that the judge will be able to continue with the case without difficulty and without any prejudice to the parents’ respective cases.

Both parents submitted through counsel that to allow the appeal without directing a rehearing before a different judge would be to render more likely the prospects of the children being adopted by strangers outside the family. We are unable to accept that submission.

First and foremost, in our judgment, the argument demonstrates an incorrect parental rather than child focus. If – and we stress the word if – the outcome of the welfare hearing in this case is that care orders are made and the children are placed for adoption with non-family members, the reasons for that course will be clear. Firstly, it will be because such a course fulfils section 1 of the 1989 Act and is in the best interests of the two children. Secondly, it will be because neither child can safely be placed with either parent or within their wider families. This, in turn, will be because the children will be a risk if so placed.

The parents of R and S – and in particular the perpetrator of the serious injuries to S (a non ambient, newly born child) - need to ask themselves why this is. The answer, in our judgment, is not far to seek. It will be because one or both of them has inflicted very serious injuries on S and has lied about doing so to the judge. As in so many care cases, the best way of keeping these two children within the family is absolute candour on the part of the perpetrator. That, on any view of the facts, has not, to date, been forthcoming.

In any event, we are in no doubt that the judge will be the first to appreciate why we have taken the course we have. He will absorb and, where appropriate, apply our judgement. We have no doubt whatsoever that at the adjourned hearing he will conscientiously apply the welfare principle under section 1 of the 1989 Act, and reach a conclusion which he perceives to be in the best interests of the children.

This is, accordingly, not a case like Re G and B in which the interests of justice require a change of judge. Furthermore, Judge Meston has carefully time-tabled the case to a final hearing before himself in September. To direct a re-hearing before a different judge, or to direct that a different judge take over the management and resolution of the case would not only be contrary to the principles laid down in Re B, it would also be a profligate waste of valuable and all too limited resources.

Against this background, we turn to examine the facts and the judge’s judgment. As the case is ongoing, we propose to say only that which is necessary for the determination of the appeal. In particular, nothing in this judgment should be taken as any indication of the likely outcome of the case which, in our judgment, is entirely at large, and which will, in large measure, depend upon the assessments which will now take place, and upon the evidence which the judge hears at the final hearing.

The mother and the father are not married. They met and formed a relationship in 2004. That relationship was plainly volatile and marked by drug taking on the father’s part, difficulties over the care of S in particular, violence, separations and reconciliations. We were told at the bar that the parents have now permanently separated.

R and S are the parents’ only children, although the father has another son, C by another woman. C was born in 2003, and was the subject of care proceedings (also heard by Judge Meston) in May 2005 when he was 2. In those proceedings, the judge found that C had ingested amphetamine, and that the father knew how he had come to do so, albeit that he concealed his knowledge. C was also found by the judge to have a broken arm caused either by his mother, father or grandfather, none of whom could be excluded from the pool of perpetrators.

As is customary in these cases, the local authority (on whom, of course, the burden of proof lay) produced a schedule of the findings which it sought. A revised schedule, dated 10 October 2008 is in our papers. It is a lengthy document, which we do not intend to reproduce. Apart from its reliance on the judge’s findings in relation to C, the local authority identified a number of fractures suffered by S, which it asserted were non-accidental. These comprised fractures of three of her ribs, a healing fracture of her right big toe, a healing metaphyseal fracture of the proximal right tibia and three fractures within the skull. These fractures were all revealed by X rays taken on 25 April 2008, when S was some 10 weeks old.

The medical evidence was unanimous that the injuries were non-accidental, and that they could have all been sustained on one occasion, although they would have required different mechanisms. Neither parent had provided a credible explanation for the injuries, and, as we have already stated, it was common ground (1) that the fractures were indeed all non-accidental; and (2) had occurred whilst S was in the care of her parents. No other person was a likely perpetrator.

In addition, S had a torn frenulum. As this injury is directly material to the outcome of the appeal, we set out the finding sought by the local authority in detail:-

Paragraphs 10 and 11 of the schedule seeks findings in relation to bruises found on R, a subject to which we will return. Paragraph 12 seeks findings about the parents’ relationship which is described as “volatile and at times violent”. Paragraph 13 seeks findings about the father’s use of illicit drugs, particularly amphetamines; paragraphs 14 to 16 (misnumbered) seek findings about the parents’ failure to seek appropriate medical attention for the children’s injuries and a failure to protect them against the risk of harm. What should be paragraph 17 seeks a finding about the parents’ lack of candour and what should be paragraph 18 asserts that by reason of the foregoing (if established) the threshold criteria under the 1989 Act have been met.

We propose, for the moment, to concentrate on S’s torn frenulum. There are only five references to this injury in the judge’s judgment. We propose to cite them all. In paragraph 2 he records the fact that on 23 April 2008, S was admitted to hospital. “She had failed to thrive and there were problems in feeding her, caused or aggravated by an oral thrush infection. On initial examination in hospital she was found to have a torn frenulum”. He then records the skeletal survey on 25 April. Nothing more is said about the torn frenulum at this point.

The second reference to the torn frenulum is at paragraph 18 when, once again, the judge simply records that, on 23 April 2008, S, who had plainly failed to thrive, was taken to hospital and examined by a paediatrician who “found a torn frenulum”. The judge noted the paediatrician’s concern that such an injury “could or was likely to indicate forceful feeding, particularly in relation to a baby with feeding difficulties”. Expert opinion from Professor S (a well known and highly respected paediatrician) was that on 24 April S had what he described as “a constellation of oral symptoms, sore lips, torn frenulum thrush and an ulcerated palate”. The judge makes no finding at this point about the causation of S’s torn frenulum, although he records the mother as expressing a “lack of feeling for S” and as saying that she did not think she had “much maternal instinct”.

The next reference to the torn frenulum is in paragraph of 36 of the judgment. Once again, the judge simply records the injury and the experts’ view that “forceful feeding of the child was the most common cause of torn frenulum, although there was evidence that a lay person might have associated the bleeding with the thrush”.

When the judge comes to consider the pointers to the mother being the perpetrator, he includes amongst them, as (6) “The mother admitted that she could have caused the torn frenulum, although she does not identify a specific incident”. He also records the paternal grandmother’s evidence that she had noticed the mother “trying to feed S roughly” although she was not more specific, and the judge treated her evidence with some caution.

In paragraph 59 of the judgment, the judge makes it clear that he does not propose “to go through the detailed findings” sought in the local authority’s schedule. However, he records: “Paragraph 15 states that both parents failed to seek appropriate medical attention to S’s torn frenulum” a finding which he thinks justified. However, he makes no finding that the mother was responsible for this particular injury.

In the exchanges which followed the delivery of the judgment, the question of the torn frenulum was first raised by leading counsel for the father. With characteristic candour the judge says:-

However, slightly later junior counsel for the local authority, in pursuance of the guidance given by his court (inter alia) in English v Emery Reimbold & Strick [2002] EWCA Civ 605. [2002] 1 WLR 2409, very properly returned to the question of the torn frenulum, and the following exchanges occurred:-

The judge then goes on to repeat that although the mother had said that maybe she caused the injury, he nonetheless had left it as a “neutral finding” and that the only finding he felt able to make in relation to the torn frenulum was that “the mother had conceded that she may have caused it”.

We have the advantage of transcripts of all the oral evidence given to the judge. In the transcript of the mother’s evidence, there is a clear and unequivocal admission by the mother in cross-examination that she caused S’s torn frenulum. The reference could not be plainer. Mr. Tolson put it to her in terms:

In all these circumstances we have set out, it seems to us that only one finding was properly open to the judge in relation to S’s torn frenulum, namely that it was caused by the mother. The post judgment exchanges to which we have referred make it plain that the judge could not attribute this injury to the father. Since he found it was a non-accidental injury which occurred whilst S was in the care of her parents; since he could not attribute it to the father; since his assessment of the mother was that she was an essentially truthful witness, and since the mother admitted causing it, the judge’s “neutral” finding is, in our judgment, impermissible. The judge thus should have found, on the balance of probabilities, that the mother caused S’s torn frenulum, itself a non-accidental injury.

If, as we find to be the case, the judge’s exoneration of the mother in relation to this injury was plainly wrong, it must follow, in our judgment, that the judge’s overall vindication of the mother, and his attribution of all the injuries to the father is likewise unsound. Were this a trivial matter at the periphery of the case it might be overlooked. The judge had heard many days of evidence. He had a vast amount of information to assimilate and assess. We have considerable sympathy for him. Nonetheless, we are driven to the conclusion that on an important aspect of the case, his conclusion is plainly wrong.

That is, in our judgment, sufficient to dispose of the appeal. The judge’s conclusion in relation to the mother is plainly flawed and the door is thus opened for this court to substitute not only an alternative finding in relation to the torn frenulum, but also in relation to outcome.

With reference to the remainder of the injuries to S, the judge identifies what he describes as six “pointers suggesting the mother could be the perpetrator” apart from the torn frenulum. We do not propose to set these out in detail. However, they include the mother’s admission that she had “some difficulty bonding with S and she was seen to be tired and tearful”. S had been difficult to feed and did not thrive. The mother had also to cope with R. The judge found that she had only limited support and help from the father, and that she was, socially, “somewhat isolated”.

Pointer 7 identified by the judge, is, however, directly material, and we will set it out:-

Mt Tolson was able to make a number of points about the injuries to R. First and foremost, of course, the bruising to R was part and parcel of the local authority’s case. At paragraph 10 of the revised schedule of proposed findings, the local authority asserted:-

Mr Tolson was able to take us to a number of places in the documentation, and in particular in the transcripts of the oral evidence which cast doubt on the judge’s conclusion. The trail begins (and in our judgment reaches its high point) with the following. There is a report from an independent social worker, Mrs Dawn Bishop, dated 22 July 2008. That lady reports the mother making an admission to her own mother (from whom Mrs. Bishop had the information) in the following terms:-

No date for this incident is given in the extract from Mrs. Bishop’s report which is in our papers. However, Mrs MH was called to give oral evidence, and in cross-examination on behalf of the paternal grandmother, the passage from Mrs Bishop’s report set out above was put to her. Her response was: “Maybe that was it”.

The allegation that the mother had slapped R with sufficient force to leave the imprint of her hand on his bottom was consistent with the father’s case. He admitted that he had kicked the mother in response to her slapping R with what he described as excessive force. Quite when this incident had occurred is not entirely clear, although the father dated it as being in the autumn of 2007. In her oral evidence, however, Mrs MH later said:-

However, this evidence was not consistent with evidence from the maternal grandfather, who had photographed bruising both to R’s back and to his ear – evidence which, in turn, contradicted his written statement. Generally, we think Mr. Tolson was able to cast substantial doubt on the attribution by the judge of the observed bruising on R to the father alone.

With all due respect to Mr Tolson, however, and despite his detailed analysis of the evidence relating to the bruising to R, we think that for our purposes, the issue is aptly and succinctly summarised by Mr Hand and Mr. Storey in their respective skeleton arguments. The former analyses the mother’s different versions of events, and concludes that there are “clear doubts” as to her credibility. Both submit that the judge appears completely to have ignored the admission made by the mother to her own mother, which we have set out above.

Mr Hand submits that “the situation was so confused that the only finding that could have been made was that the bruising was caused by the father or the mother (ie they both remained in the pool)”. Mr Hand also makes the separate point that the fact S had suffered non-accidental injuries was known in April 2008, yet despite this knowledge the mother had secretly met and had had sexual relations with the father. This is not a matter discussed by the judge, but in our judgment, Mr. Hand is entitled to ask rhetorically, as he does, why the mother would continue her relationship with a man who – on her account – had been responsible for injuring their children?

In his skeleton argument for this appeal, Mr. Storey puts the matter in relation to the bruising in a manner with which we find ourselves in complete agreement what he says: -

The position of both the guardian and the local authority is that when the judge’s unsatisfactory treatment of the bruising is added to his error over the torn frenulum, the only possible outcome is that both parents must remain in the pool of potential perpetrators. We respectfully agree.

We do not overlook the skill with which the case for the mother was presented by Miss Branigan, from whom we not only had a skeleton argument but full and careful submissions. We feel bound to comment, however, that the arguments she advanced (largely centred, as they were, on the role and function of a judge at first instance conducting a finding of fact hearing) which would in most cases have been compelling, could not redress the void at the heart of the judgment which we have identified.

We do, however, agree with one of Miss Branigan’s principal submissions, namely that the primary case advanced on the father’s behalf (that we should reverse the judge’s findings and exculpate the father) is wholly untenable. The judge made a number of adverse credibility findings against the father which are unconnected with the errors we have detected. In addition, at least three of the factors which the judge listed as suggesting that the father could be the perpetrator (his long-standing and concealed use of amphetamines, his obsessive tendencies and his temper), were all manifestly open to the judge to find as pointers towards responsibility, and are untainted by the errors we have identified.

Equally, we do not think that the judge (or, for that matter the local authority) can be criticised for relying, so some extent, on the father’s previous conduct towards C, which is plainly relevant.

Mr Tolson reserved particular criticism for the following paragraph of the judge’s judgment on the question of opportunity to inflict the injuries. The judge said this: -

In our judgment, this paragraph is fireproof, and manifestly open to the judge to find, even if (a point Mr Tolson made) he is in error about the father tending to S at night. The medical evidence did not exclude the injuries being inflicted in a very short time-frame, and the mainstream expert evidence of Professor S was that fractures in a non-ambulant child frequently did not produce continuous or continuing manifestations of pain.

For all these reasons, this is one of those rare cases in which this court is able to say that the judge has reached an impermissible conclusion on a finding of fact hearing, and that, as a consequence, this court can and should interfere. Likewise, as we have explained, our view is that our interference should be limited to the reversal of the judge’s primary finding, and the substitution of a finding that neither parent can be excluded from the pool of perpetrators for the injuries to either child. In relation to the torn frenulum, however, we can go further, and we do so. On the available evidence, the judge should have found on the balance of probabilities that this injury was caused by the mother. That finding will also be included in our order.

The case will now return to the Bournemouth county court for the judge to continue with its management, and for him to conduct the final hearing.