W (A Child), Re

This is an application on behalf of M for permission to appeal against the order of HHJ Parker, sitting in the Family Court in Liverpool, dated 17^th May 2016. By reason of its nature, M has also sought a stay of the hearing listed to commence on Monday 6^th June 2016 for 5 days, with several witnesses lined up to give evidence.

I was told by Miss Elizabeth Isaacs QC on behalf of M that the other parties have informally been told of this application today. It is of some concern, nevertheless, that the application for a stay in effect is sought on an ex-parte basis, given that a number of the other parties are affected. However, that is the current position.

Given the nature of this application it is not necessary or appropriate to set out the background in detail. The baby, W, was born on 13^th October 2015 by Caesarean section. The parents are young – the M is 17, the F is 19. They are partners and this is their first child. It is to be emphasised that they have not come to the attention of the police or authorities before. There is also evidence that W has developed well and has not given any cause for concern and that he has formed an appropriate emotional bond with the parents. In a recent report by the guardian, Denise Whitley, dated 31^st May 2016, she says she has observed W in his parents’ care and has considered the contact recordings. She says “It is clear that the parents love him and their world revolves around him. Although he is still very young, he has developed a positive organised attachment to both his parents.”

Initially, as I gather, the hearing on Monday was to be a fact-finding and welfare hearing within the prescribed 26 weeks. However, I was informed this morning that this has changed in the light of the recommendations in the recent report of the Children’s Guardian, and it is now to be a fact-finding hearing alone, with a welfare hearing thereafter. Miss Isaacs has understandably impressed upon me the importance of this hearing for W and his parents. If W is taken away and placed for adoption with someone else, which apparently is the local authority’s current intention in the event of adverse fact findings, the life of the parents will be profoundly and permanently altered. It will also, of course, be life-altering for W. As against that, if it is the case that the circumstances are such that W should in truth not be left in the care of his parents, it would be potentially life-altering for him if he remained with them. Thus this hearing is of very great importance for all concerned.

Miss Isaacs has impressed upon me the requirements of s13 CAFA 2014 and Article 8 considerations.

What happened was this. After the hearing before HHJ Parker on 17^th May 2016, the statement and contemporaneous notes of the specialist doctor who performed the Caesarean section have been obtained. Those notes and statement would indicate that the Caesarean birth was unremarkable and easy. There is no suggestion of any complication or of any undue force. It is recorded that there was no previous failed forceps or ventouse. “Ease of delivery” was described as “easy”, and it is also recorded that “After spinal anaesthesia, abdomen opened in layers. LSCS performed, baby delivered in good condition and handed to paediatric team.”

On 30^th November 2015 a bruise on W’s penis was noted and he was taken to the local doctor. In due course, in early December, he was referred to the hospital and an examination of W took place. It was suggested by the parents that the bruise on the penis might have been caused by the car seat belt which was described by the paediatrician at the time as “a plausible explanation”. A paediatric radiologist then identified what is said to be evidence of a healing fracture of the 12^th lower right rib. Also, there had been previously noted a possible lump on or in the region of the lower vertebrae on the back. There may be an issue as to whether such a lump may be related to what is said to be the healing fracture.

The central issue thus is whether there has been non-accidental injury and, if so, whether one or the other or both parents are responsible. As Miss Isaacs put it, it is a single issue case.

Expert evidence was obtained from Dr Johnson, a paediatric radiologist, who reported on 21^st March 2016. He gives his radiological opinion as to what appears to be a healing rib fracture, and his opinion of how that can occur and its relative rarity. In his conclusion he says “I would defer to the paediatrician and/or obstetrician as to whether or not there is anything in W’s post-natal and birth history that would suggest that he was at any increased risk of rib fracturing at the time of birth. I would also defer to the paediatricians as to whether there were any clinical symptoms of a rib fracture following W’s birth.”

There is a very detailed report also from Dr Mecrow, an experienced consultant paediatrician, who has provided many medico-legal reports to courts. Amongst other things, he emphasises that he is not an adult physician nor an obstetrician, and says “Although I have briefly reviewed these records, if a formal assessment of F's medical or obstetric care is required, then I would respectfully advise that an expert with the appropriate experience and qualifications should be instructed.” Dr Mecrow goes on, in detail and with care, to set out his own opinion as to how the injuries to the penis and the rib occurred. His conclusion is that they are likely to be the result of non-accidental injury. In particular, he sets out his reasons regarding the bruising and the rib fracture.

At the time of his report he had not seen the operative notes of the doctor who undertook the Caesarean section. These have now been obtained and on their face as I have said, indicate that it was not remarkable and was easy. Miss Isaacs seeks to style this as an opinion; but it seems to me there is no reason not to regard it as essentially a statement of fact.

At the hearing on 17^th May 2016 HHJ Parker was asked to direct a report from an expert obstetrician. This was at a time when the notes of the Caesarean birth and the statement of the delivering doctor had not been obtained. The judge was of course required to bear in mind the statutory provisions of s13 CAFA 2014 and by Part 25 not to order a report unless he considered it necessary to do so. I have been helpfully referred to Re TG (A Child) [2013] EWCA Civ 5 and Re H-L (A Child) [2013] EWCA Civ 655 which set out the factors that the court will ordinarily bear in mind. Ultimately it is a matter of evaluation and discretion and case management. These matters nevertheless are highly important and Article 8 has to be borne in mind because the ultimate issues are possible separation of a child from his parents.

The thinking of HHJ Parker in declining the application is set out in his ruling. He points out that he already has Dr Mecrow as an expert paediatrician and that it would to be necessary to obtain evidence from the doctor who conducted the Caesarean section. (This has since been done.) He went on to say “Dr Mecrow has already looked at the research on rib fractures related to birth, he has set the research out, he has considered the obstetric notes, as I understand it, and he has considered that it is unlikely to be a birth injury. He has not suggested that evidence from an obstetric expert is necessary to deal properly with the issues. Nor has he been asked whether one is necessary in his opinion to deal with issues outwith his expertise. Therefore, in the absence of something factual to suggest that this was a delivery by caesarean section that was so unusual that it may well have caused a rib fracture, there is already expert evidence from a court appointed expert…”. I interpolate there that, as I have previously said, there is no evidence that this delivery was unusual, in the light of the subsequently obtained statement of the delivering doctor.

There was then an exchange between the judge and an advocate. The Judge then went on to say “That just reinforces the point that I have just made, that rather than focusing on trying to get another paper expert, the focus should be on getting a statement from the person who carried out the delivery. If there is a missing piece of evidence, that is it. If I may say, I consider that this application is misconceived. It is also put fundamentally on an incorrect basis because it is put on the basis that there is a difference of opinion between the radiologist and the paediatrician when patently there is not. All that the radiologist says is (I paraphrase), “Well, I cannot exclude a birth fracture temporally.” It is not an expression of opinion of causation. That is the opinion of Dr Mecrow and in fact, Dr Johnson in his report makes it clear that he defers to the paediatrician.”

The judge then went on to say “…all arrows come back to the central point in this case, which is if either or both of the parents want to explore and/or run a case on the basis that this is a birth injury, then unless there is something factually from the doctor who carried out the delivery to suggest that this was for some reason a caesarean section that resulted in something happening that could have caused a rib fracture, I do not see any purpose in going to another expert just to look at the papers. It does not seem to achieve any purpose and I have to be satisfied that instruction of an expert is necessary to assist me to deal with the proceedings justly and I just do not think it would.”

The judge went on to refer to the delay that might be occasioned if he were to vacate the hearing for a “redundant exercise” and also went on to refer to the importance of a fair trial.

Miss Isaacs’ central submission is in effect that no stone should be left unturned, given the massive importance of this hearing for the child and the parents. She disputes that to obtain an expert obstetrician’s report would be a “redundant exercise” and complains that the judge did not give sufficient weight to Article 8 and placed too much weight on the need to press on.

This was a case management decision and a discretionary decision, and in my judgment it cannot possibly be said that what the judge said was unreasonable. If anything, the argument of M on the need for an expert obstetrician has gone backwards in the light of the now obtained statement from the doctor. There is nothing that would indicate undue or unusual force in delivery.

Miss Isaacs has also sought to refer to the evidence of the failed lumbar punctures. I found this difficult to follow. This is more within the province of a paediatrician and not within the province or the expertise of an obstetrician. W himself was removed from the obstetric team to post-natal care immediately after birth.

In effect, overall I consider that to seek the opinion of an expert obstetrician is something of a fishing expedition and the judge was entitled to reject the application for the reasons which he gave, which were cogent.

The judge had also wisely provided in the order “The court considered that the issue necessitated the evidence of the doctor who performed the delivery by Caesarean section, rather than a paper report from another expert. Liberty to apply again on 48 hours notice, with a PD compliant application if further evidence emerges to suggest that the court’s decision should be revisited.” The order thus has built in a “liberty to apply”.

In all the circumstances, I do not think there is any proper basis to interfere with this case management decision. I do not accept that the judge did not have sufficient regard to Article 8. I do not accept that he was unduly concerned with the need to comply with the timetable. Overall it seems to me that the judge’s reasoning was sustainable and justified.

I therefore refuse the application for leave to appeal and for a stay of the hearing.