P and P (Children), Re

The North Somerset Council (the local authority) seeks permission to appeal against a case management decision made by Coleridge J sitting in this building on 24 April 2009. The appellant’s notice was not filed until 15 May 2009. On 21 May 2009 the papers were placed before Wilson LJ who directed that the application be heard on 10 June 2009 by a two judge court.

At the conclusion of the argument on that day, we announced our decision but reserved our reasons. We gave permission to appeal. We allowed the appeal. We set aside the judge’s refusal to permit the instruction of a paediatric pathologist and directed the local authority to identify such a pathologist as a matter of urgency, and, jointly with the other parties, to instruct that pathologist to review the post-mortem carried out on the child C by Dr C on 2 March 1999 and to answer the eight questions posed by Dr L in his report dated 7 March 2009.

As will already be apparent, this is a case which is ongoing, and in which we impose reporting restrictions. This judgment, which sets out our reasons for reaching the conclusions identified in the preceding paragraph, is thus written anonymously, and nothing must be published which in any way identifies the children with whom the court is concerned. In order to preserve the children’s anonymity, we propose also to anonymise the various doctors and other experts involved.

In listing the application for hearing, Wilson LJ adverted to the difficulty of appealing against a case management decision of a High Court Judge but added that the application “deserves ventilation at a hearing”. In addition to hearing leading and junior counsel for the applicant, we heard oral submissions on behalf of the father, the guardian and the intervener, and received skeleton arguments settled by leading and junior counsel on behalf of the mother, the father and the intervener. Unfortunately, the last two documents did not reach us prior to the hearing. We have, however, now read them and take the view that the points they contain were properly summarised by counsel in their oral submissions.

For the avoidance of any doubt, we make it clear that nothing in this judgment is to be taken or read as in any way indicating the likely outcome either of any further investigations, or of the case itself. As this judgment will make clear, we are dealing with a narrow, limited and discrete issue. There are, however, some preliminary observations which we do wish to make, and which are of general application.

We think it highly regrettable that an appeal against a case management decision made in care proceedings under the Children Act 1989 (the 1989 Act) on 24 April 2009 did not reach this court until 10 June 2009. We think it equally regrettable that the appellant’s notice was not filed until 15 May 2009, effectively the final day of the 21 day time limit allowed for the filing of such a notice. Although Mr. Jonathan Baker QC, for the local authority, gallantly offered to take the entire blame for the delay on his own shoulders, and submitted that the case was not of so great an urgency as to require the court to be “troubled” by a personal application for expedition, we regard the time scale as unacceptable, and propose, for the benefit of the profession, to repeat what this court has said on at least two previous occasions, albeit in the context of applications for a stay and in relation to children’s case which were, it might be argued, more urgent that the instant application.

Re S (Child Proceedings: Urgent Appeals) [2007] EWCA Civ 958, [2007] 2 FLR 1044 (Re S), was an appeal by a father against an interim care order which had been made in the county court on a Friday. No application was made either to the judge or to this court for an immediate stay, and as a consequence of the judge’s order, the child concerned was removed on the same day from his father’s care. The father’s application for permission to appeal against the interim care order thus only reached this court after it had had expired.

In Re A (Residence Order) [2007] EWCA Civ 899 the residence of a child whose mother lived with him in Herne Bay was transferred to his father, who lived in Darlington. The judge making the order refused both a stay and permission to appeal. The child thus went immediately to live with his father. The mother then applied to this court for permission to appeal.

In both cases, this court stressed the speed with which it could act in cases involving children. In paragraph 27 of his judgment (in Re: A), Wilson LJ spelled out the procedure if the judge at first instance refused a stay:-

The judgment in Re S was to similar effect. In paragraph 11 Wall LJ stressed

Time is always of the essence in care proceedings. The Practice Direction: Guide to Case Management in Public Law Proceedings (the Public Law Outline) [2008] 2 FLR 668, on which Mr. Baker properly relies, makes it clear that the overriding objective includes ensuring, so far as is practicable, that cases are dealt with expeditiously, and one of the case management duties of the court is to set an appropriate time-table for the child.

The local authority instituted proceedings in the instant case on 9 September 2008. The case concerns two children, a girl SP born on 25 November 2005 and her full brother, JP. born on 27 June 2008. Both are currently the subject of interim care orders. There has already been substantial delay. SP is living with her paternal grandparents: JP has been in foster care since his discharge from hospital in September 2008. Clearly, their respective futures need to be decided as soon as is humanly possible.

Thus if, as here, there is to be a challenge to a case management decision - particularly a challenge which, if successful may abort a fixture of a substantive hearing in the case - it is extremely important that it is made promptly. It is no exaggeration to say that in an extremely urgent case this court can and will sit to hear a child appeal within hours of the first instance decision.

We acknowledge that the instant case is not in that league. However, no question of the need to obtain public funding to prosecute the application arises. Mr. Baker also very properly tells us that he advised on 5 May that contact be made with the manager assigned to the case by this court, so that the need for an early paper consideration by a single Lord Justice could be emphasised. In these circumstances, it is a great pity, we think, that the appellant’s notice was not filed until 15 May.

With disarming self-effacement, Mr. Baker submitted that he did not think the instant case of sufficient urgency to merit a personal application for expedition. Sadly, we think, events have proved him wrong. We were told that the pathologist previously instructed cannot now report before August. We do not, of course, know what she, or any replacement for her, will say. It is, however, almost inevitable that a nine day hearing fixed by the judge for 7 September 2009 – already moved from 10 days on 8 June 2009 – will now be ineffective.

The moral of this case is that the capacity of this court to act swiftly is not limited to cases which require a stay. If there is a particular reason for expedition, or if an advocate wishes to engage this court as a matter of urgency, he or she should either speak to a Deputy Master on the telephone, or ask to be put through to a Lord Justice with family experience. In cases of lesser urgency, but which still require expedition, the advocate should invite the office to place the papers before such a Lord Justice as a matter of urgency. The Lord Justice concerned will then, in consultation with the listing office and with colleagues, be able to give directions designed to resolve the application swiftly. We re-emphasise that the system is not to be abused. The issue must be one which requires urgent attention.

It is, furthermore, self-evident that case management decisions by the High Court and the circuit bench are not to be challenged on a whim, or because one party simply happens to disagree with them. They are discretionary decisions in which the allocated judge enjoys a very wide discretion to deal with the case within the confines of the overriding objective and taking into account the best interests of the child. There must be a point of substance which requires an urgent challenge and speedy resolution. In the overwhelming majority of cases, no such point will arise. Where it does, however, speed is of the essence. Delay, as the 1989 Act makes clear, is usually contrary to the interests of children, as well as being the enemy of justice in most child cases.

In our judgment, this case raises such a point, and the timetable is not impressive.

On 24 April Coleridge J was taking a directions appointment in care proceedings relating to the two children whom we have already identified, namely SP, now aged 3 and her full brother JP, who will have his first birthday later this month. Their mother is LP and their father MP. The particular point at issue had been transferred to him for hearing, as part of a wider consideration as to whether or not the whole case should be transferred to the High Court. In the event, nothing turns on the point that the judge did not transfer the proceedings, which remain in the county court.

There has never been any suggestion that SP has suffered any form of injury or had any form of ill health. However, JP was re-admitted to hospital a little over a week after his birth when he was noted to be short of breath and vomiting, with blood stains in the vomit. A chest X ray was taken and a lumbar puncture was performed at another hospital. He was treated with anti-biotics and then discharged home.

Thereafter JP had periods of not taking all his feeds and did not gain weight properly. On 17 August 2008 he had a further episode of breathlessness, and was again taken to hospital. A further chest X ray was taken at another hospital on that date, and when reported upon on 4 September 2008 revealed multiple healing rib fractures. A full skeletal survey was undertaken on the following day, 5 September 2008. This revealed, in addition to the rib fractures, a fracture through the proximal phalanx of JP’s left index finger.

On 9 September 2008, the local authority institute care proceedings in relation to both children, and as we have already recorded, SP was moved to live with her paternal grand parents. JP, on his discharge from hospital was received into foster care, where he has remained ever since.

In addition to SP and JP, MP had two children (both girls) by another woman, whom, for reasons which will become apparent, we will call “the intervenor”. One of those two children, whom we will call “C” was born on 19 February 1999 and died when only six days old on 25 February 1999. The second child, E, was born on 20 November 2000.

The medical evidence establishes that five days after her birth, C had a pink vomit and was taken to her general practitioner, who did not consider that she was seriously ill. She died the following day. We have the post mortem report on C which was undertaken by a Dr. C on 26 February 1999 and the report of Dr C is dated 3^rd March 1999 with an addendum on 7^th May 1999. That report discloses a small amount of sub-dural blood particularly around the occipital poles of the skull, although no skull fractures. C had, however, a fractured clavicle and a bruise just below the midpoint of the right clavicle. Both her lungs were heavy and very congested, and the cut surface of the lungs showed them to be “very congested and rather haemorrhagic”.

Dr C’s conclusion was that the disease or condition directly leading to C’s death was pneumonia. The lungs, he reported, showed “a patchy early pneumonia on preliminary section” and death appeared to him to be from natural causes. The doctor thought the clavicle fracture and the occipital change “probably related to birth”.

An addendum to his report dated 7 May 1999 reports under “Bacteriology” that there was “heavy growth of gram negative bacilli, mixed anaerobic bacteria” in the lungs and that the respiratory system showed a patchy pneumonia with haemorrhage. The pneumonia was not very severe and the doctor suspected that “there must have been a bacteraemia, or an apnoeic response to the infection to cause death”.

C’s sister, E suffered a fractured left femur when she was aged less than one month. As a consequence, care proceedings were instituted in relation to her, which were heard in the Bristol County Court by His Honour by Judge Ticehurst on 13 July 2001. He held a split hearing, and we have a transcript of his judgment on the first limb, in which he found that E was the victim of a non-accidental injury inflicted by her mother, the intervener. In the event, however, E was later made the subject of a supervision order, which has since expired, and restored to her mother’s care, where she has remained.

Significantly for present purposes, however, the medical evidence in relation to E shows, as Coleridge J succinctly put it, that “she had some blood in her vomit or sputum, and this was a symptom which had also been noted in C at her death”. More specifically, aged 17 days, E had been admitted to hospital with a history of poor feeding, cough, noisy breathing and blood stained sputum. The diagnosis was that she was suffering from gastro-oesophageal reflux. She was discharged home on 14 December 2000, but readmitted shortly thereafter. It was then that she was discovered to have suffered a fracture of the left femur.

The first case management conference following the transfer of the proceedings to the county court took place in Bristol before His Honour Judge Barclay on 26 November 2008. A great many orders were made and a number of issues considered. Plainly, given the fractures which had occurred in C, E and JP the parties were unanimous in agreeing that a consultant geneticist and experts on bone density should be instructed to ascertain whether or not JP suffered from osteogenesis imperfecta, or brittle bone disease (OI). More controversial was the instruction of a paediatric pathologist to review Dr C’s findings, and that matter was adjourned to the next hearing for discussion on 22 December 2008 before the allocated judge, Her Honour Judge Darwall-Smith.

The reason for the local authority’s wish to instruct a pathologist derived in particular from the report it had received from a consultant paediatrician, who had been instructed to conduct a paediatric overview. That paediatrician pointed to similarities in the symptoms shown by C, E and JP namely that each had blood stained vomit or respiratory mucus in the first few weeks of life. As Judge Ticehurst had pointed out, E and C had suffered remarkably similar respiratory symptoms. This gave rise both to question marks over C’s cause of death, and whether or not the intervener had indeed been responsible for the injuries to E.

On 22 December 2008, Judge Darwall-Smith joined E’s mother as an intervener in the proceedings, and gave the parties leave to instruct a consultant pathologist on the following basis:-

The pathologist selected was Dr L. When the case came before Coleridge J for the first time on 18 February 2009, the time for Dr. L to report had not passed, and there was nothing from him. However, Coleridge J directed that the post mortem samples of C’s lung should be sent to him.

Dr. L has in fact reported twice, once on 26 February 2009 and once on 7 March 2009. In his second report, which is the material report for our purposes, he identified eight questions which he suggests should be put to a paediatric pathologist, and which he regarded as outwith the area of his particular expertise. These questions are important, and we think we should set them out in full:-

Very properly, Dr L concludes his second report with the following paragraphs:-

We agree with the judge that these are proper paragraphs for Dr L to have added, and demonstrate clearly that he has understood the difference between the role of the expert and the role of the court: - see Re: M (Care Proceedings: Best Evidence) [2007] EWCA Civ 589 [2007] 2FLR 1006.

Thus it was that when the case came back to Coleridge J on 24 April 2009, the local authority, supported by the guardian, sought permission to instruct an identified paediatric pathologist, Dr N who, at that point was in a position to report promptly. The judge refused that application, and it is against his refusal that the appeal is now brought.

We have the advantage of having a transcript of the argument before the judge as well as a transcript of his judgment. It is plain from the former that he was, from the outset concerned about the direction which the case was taking. His very first intervention on the point gives rise to the following exchange between himself and junior counsel instructed on behalf of the local authority:-

In his subsequent judgment, the judge introduces the topic in paragraphs 13 and 14 of his judgment in the following terms:

Having commented on the understandable wish of the intervener to reopen the question of C’s death, and summarised the position of the father, the judge continues: -

The judge then makes the comment that the effect on the current time-table was obvious and expresses the view that any extended hearing could not take place during 2009. Furthermore, if the case had to be transferred in its entirety to the High Court and heard by a judge of the Division, it would be unlikely to be heard and determined until well into 2010. That, in the judge’s view was “too long” for SP and JP. The judge thus concludes: -

Mr. Baker and Miss Pine-Coffin mount a formidable plethora of arguments against the judge’s decision. We propose, however, to decide the point on one principal and narrow ground. In our judgment, the judge’s order was premature. Before deciding on the ultimate direction the case was to take, and whether or not it was going to be necessary to embark on an extensive investigation, he should, in our judgment, have ordered the report sought by the local authority and only then decided on the direction of the case once he know what the paediatric pathologist had to say.

We can test the matter in the following way. If the view of the paediatric pathologist is that the post-mortem into the death of C is bomb proof, that is the end of the matter. C will have died of pneumonia and her physical injuries would be birth related. There will be no question that she had been intentionally suffocated. The court will need to determine on the medical and other evidence whether or not JP’s injuries were inflicted, and if they were whether or not SP is likely to suffer harm in the future.

If, one the other hand, the paediatric pathologist advises that the post-mortem findings are unsound, then the judge will have to decide what form the enquiry will take and what further enquiries are to be permitted. In our judgment, neither decision can properly be taken without a careful consideration of what the paediatric pathologist has to say.

That, we think is sufficient to dispose of the appeal. On the face of it, however, we think we should add that the further enquiries which the local authority wishes to undertake by means of the paediatric pathologist’s report are (1) plainly relevant to the future welfare of SP and JP and are thus (2) enquiries which a responsible local authority can and should pursue. It is, we think, a strong thing for a judge to say that a responsible local authority supported as it is by the representatives of the children themselves, should not be permitted to pursue a particular line of enquiry: - see, for example In re G (a Minor)(Care Order: Threshold Conditions) [1995] Fam 16. This, in our judgment, is all the more the case when the judge does not know the direction in which the evidence may lead because he refuses to give permission for the enquiry to proceed.

Mr. Baker and Miss Pine Coffin rely on the well established principle of public policy that it is important, wherever it is possible for children to know what has happened to them and for the perpetrators of abuse of children to be identified: - see the decision of the House of Lords in Lancashire County Council v B [2000] 1 FLR 583, the decision of this court in Re K (Non-Accidental Injuries: Perpetrator: New Evidence) [2005] EWCA Civ 1181 and the decision of McFarlane J in A County Council v DP, RS, BS (By the Children’s Guardian) [2005] EWHC 1593 (Fam). [2005] 2 FLR 1031.

We have no doubt that the judge was well aware of these points, and we accept that, in the final analysis, it is for the trial judge to exercise control over the proceedings over which Parliament had entrusted to him to preside. We are nonetheless firmly of the view that, in the instant case, Coleridge J acted prematurely. He deprived himself of information which would have enabled him to make an informed decision. He was, in our judgement, wrong to assume that the proposed evidence would have the consequences he predicted, and in these circumstances, we have reached the clear view that his exercise of discretion cannot stand.

We recognise, as did the judge, that there has already been delay in this case. That delay will not make the task of Judge Darwall-Smith any the easier when, as the allocated judge, she has to consider the future progress of the case once the paediatric pathologist’s report has been obtained. We repeat, however, that it will be a matter for her to decide on the future progress of the case in the light of whatever the paediatric pathologist says, and nothing in this judgment should be read as in any way seeking to influence either the latter’s report or the judge’s future directions.

These, however, are our reasons for granting the local authority permission to appeal; allowing the appeal and substituting the order set out in paragraph 2 of this judgment for the order made by the judge.