A v A Local Authority

This is the judgment of the Court to which all members have contributed.

The appeal arises from a fact-finding hearing that took place during January and February 2021 in care proceedings involving a girl, S, then aged 6½. The principal issue arising in the hearing was the cause of injuries sustained by another child, J, a boy then aged 5½ , who is not the subject of these proceedings but who became the focus of the proceedings because his injuries were sustained around the weekend of 18 to 19 January 2020 during which he spent a period of time in the care of S’s mother X and father Y. At the conclusion of the hearing, HH Judge Nisa found that most of J’s injuries had been sustained accidentally but some had been inflicted by J’s mother, A, who had been joined as an intervenor. She now appeals to this Court against the findings made against her.

In the period between the fact-finding hearing and the appeal, S, who had been removed from her parents’ care, is living with family and is apparently thriving in their care. Meanwhile, in part as a result of the findings, the local authority has started further care proceedings in respect of J and his brother, although they remain at home under an interim supervision order. The future of all three children may therefore be affected significantly by the outcome of this appeal.

In 2019, J and his older brother had been the subject of an assessment by the local authority’s children’s services as a result A’s misuse of ketamine. Concerns had also been raised about bruises and marks seen on the child at school. In the weeks leading up to the weekend of 18 to 19 January 2020, J spent periods in the care of X and Y, who were friends of A, although there was a dispute at the hearing as to how often this had occurred. In the days before the weekend, J attended school, where staff observed no marks on him. At about 4.30pm on Saturday 18 January, A handed J over to X to spend the night and following day with X, Y and S. At the hearing, there was a dispute between the adults as to whether there had been any marks on J at this point, A saying that there had been no marks, X saying that there had been a mark on the side of his face. Over the next twenty-four hours, according to X and Y, various accidents occurred which they later suggested could have caused some of the marks subsequently seen on J. For example, X alleged that J fell into a ditch while playing in woods and that he had hit a radiator after jumping on a bed. A number of text messages passed between A and X during this period which were adduced in evidence at the hearing. At about 8pm on Sunday 19 January, Y returned J to A’s home. It was A’s evidence that she then noticed an abrasion on his left forearm, although there were inconsistencies in her various accounts as to what she saw and when. Later that evening, she texted X asking what had happened to J’s arm. In reply, X said she had not seen anything.

It was A’s evidence that, while getting J dressed for school the following morning, she noticed other marks and bruising on his face and body. It was her further evidence that, on her way to school, she asked another friend whether she could see any marks on J’s face and that the friend said that it looked like a slap and advised her to contact social services. At that point, A did not say anything to the school staff about the marks. Instead, she went home and, as the judge found, forty minutes later telephoned her family support worker and then children’s services. After that, she telephoned the school and, according to evidence from a member of staff, said that J had been with friends over the weekend and that on his return she had noted marks, and asked the school to log the marks. During the morning there were further phone calls and text messages between A and X.

The local authority instigated an investigation under s.47 of the Children Act 1989. A medical examination of J disclosed a total of twenty-three marks, bruises and abrasions, including a series of marks and abrasions on the left side of his face, amongst which were linear marks extending to his ear, a deep abrasion or burn on the left forearm, various bruises on his buttocks and thighs, and some superficial abrasions on the front of his penis. The conclusion of the examining doctor was that at least some of the injuries were non-accidental.

On discharge from hospital J, accompanied by his older brother, went to stay with grandparents but returned to A’s care after three weeks. X was arrested, interviewed and released on bail. Subsequently, the police decided to take no further action with regard to J’s injuries. Meanwhile, S had moved to live with a maternal aunt and, in June 2020, the local authority started these care proceedings, relying in part on the injuries sustained by J as evidence that S was likely to suffer significant harm in her parents’ care. A series of case management hearings took place, in the course of which A was joined as an intervenor.

The fact-finding hearing was listed for five days but in the event, as a result of X’s ill-health, extended over nine days in January and February 2021. The findings sought by the local authority related not only to the injuries sustained by J but also to other matters, including allegations of domestic abuse by Y towards X and A’s misuse of ketamine. At the outset of the hearing, representations were made on behalf of A as to the appropriateness of seeking findings about her care of J in proceedings which did not relate to him. The court was asked not to consider any allegations against A which went beyond the single question of identifying the person in whose care the injuries had occurred. The court rejected this argument and counsel acting for A made an application for permission to appeal that decision. That application was dismissed and has not been renewed before this Court.

The hearing proceeded with oral evidence given by seven witnesses including X and A, but not Y, who refused to attend most of the hearing. At the conclusion of the evidence, the hearing was adjourned for written submissions. Judgment was handed down on 1 March.

In her judgment, the judge started by setting out the law as agreed by counsel. She summarised the opinion of the court-appointed expert, Dr Goddard, a consultant paediatrician, that the majority of J’s injuries were “concerning for inflicted injury in the form of physical abuse” because of their number and location; that the linear marks on the left cheek were “consistent with a slap”; that marks on the ear “are more commonly seen in abused children”; that J would have cried out in pain after the injury to the left arm, and that, in the absence of a reasonable explanation, that injury was more likely to be non-accidental.

Turning to the evidence given by the three adults, the judge observed that there were “inconsistencies in every single witness”. She recorded the difficulties the court had experienced as a result of X becoming ill in the middle of her evidence. Later, she had failed to attend on the day allocated for the resumption of her evidence and as a result the hearing was adjourned again for X to attend. The judge stated that “the court gave the indulgence that it ought to have done quite correctly because the evidence of parents is very important and [X’s] evidence was heard in full”. She described aspects of X’s evidence as “quite confused and inconsistent” and “quite extraordinary”. She set out at length her evidence about her relationship with Y, describing how she had initially lied about his behaviour towards her and about his presence in the house over the weekend but finally, on the last day of her evidence when Y was not present in court, had admitted that he had been abusive. The judge observed, however, that “just because she has lied to the court in that regard, it does not mean that all her evidence is a lie”. Having summarised Y’s written statements and police interview, she concluded that he had assaulted X during the weekend when J had been in the house, but was unable to find, as urged by other parties, that J had been “caught up in the crossfire”.

The judge started her summary of A’s evidence by recording that she now accepted that she had lied to the court about the extent of her ketamine abuse. Having considered the evidence about the issue, the judge observed that A

The judge’s analysis of A’s evidence continued:

The judge then set out her findings. She concluded that some of the injuries had been sustained accidentally while J was in the care of X and Y but continued:

The judge observed that X and A had “both done whatever they can to manipulate the evidence and to put each other in the frame”. She continued:

Finally, the judge said:

Following the judgment, A’s counsel asked for clarification about several factual matters and for permission to appeal. In a supplemental judgment, the judge made minor revisions to her findings about A’s drug use, added further observations about the “slap” injury, and refused permission to appeal.

A final schedule of findings approved by the judge included the following findings against A:

Following the hearing, S remained within her family. Some months later, the local authority started care proceedings in respect of J and his older brother which are ongoing. The boys remain at home with their mother under an interim supervision order.

On 15 July, A’s solicitors filed a notice of appeal to this Court, relying on six grounds:

On 24 September, Peter Jackson LJ refused permission to appeal on the first ground but granted permission on grounds 2 to 6. The appeal hearing was fixed for 23 November and directions given for the filing of skeleton arguments.

On 10 November, A’s solicitors filed an application for permission to amend the grounds of appeal by adding a new ground based on procedural irregularity/unfairness in the following terms:

In the event, the issue raised in the proposed additional ground of appeal featured prominently at the hearing. In view of the conclusion we have reached, it is convenient to consider this issue first.

The origin of the application to add the new ground of appeal lay in two reports which were prepared in the course of proceedings relating to J and his brother on joint instructions from the local authority and solicitors acting for A and for the children. The copies of the reports filed in support of the application were heavily redacted, although we were told that leading counsel for the local authority had seen unredacted copies of both reports. The first report, dated 28 June 2021, on a cognitive assessment carried out by two psychologists, Dr Gary Taylor and Ms Lucy Howe, included the following passage:

On 18 November, A attended an assessment meeting with an intermediary employed by Communicourt Ltd. On 22 November, the day before the appeal hearing, an email was received by A’s solicitors from Communicourt in the following terms:

On the basis of these assessments, Ms Suzanne Kelly, who represented A before the judge and before this Court, submitted that her client had hidden cognitive difficulties which were not apparent during these proceedings. She informed us that A had been able to give clear instructions and appeared to understand the advice provided and the proceedings. Towards the end of A’s evidence, Ms Kelly had some concerns that she might have some difficulties, although it was not clear that these were cognitive issues, as opposed to misunderstanding questions which were long, complex and multifaceted. Ms Kelly added that, as a result of the Covid-19 pandemic, she and her instructing solicitors had never met A in person before the appeal hearing. All instructions had been taken over the telephone.

A attended the fact-finding hearing remotely in accordance with the practice adopted in the family courts during the pandemic. She gave her evidence sitting alone in a room in her solicitor’s office. Ms Kelly took us to a number of passages in the transcript which, she submitted, demonstrated that it was recognised that A was on occasions finding giving evidence difficult. Ms Kelly asserted that, had the court been aware of her client’s cognitive difficulties, provisions would have been put in place for her and this would have led to a different outcome at the hearing. Thus Ms Kelly submitted that the hearing before the judge was flawed, that A should have had an intermediary present with her in court and that, prior to the court hearing, there should have been a ground rules hearing where submissions could be made as to the best way to receive her evidence.

These assertions are, of course, all made “after the event”, after A had serious findings made against her after a long hearing before a Circuit Judge. On behalf of the local authority, Ms Sally Stone QC did not oppose the application to amend the grounds of appeal, but opposed the appeal on this, and the other, grounds. She relied on the fact that no one had expressed concern about A’s cognitive functioning or understanding at any stage in the proceedings up to and including the fact-finding hearing. In that period, A was able to give detailed instructions to her solicitors and to participate fully in the hearing. Ms Stone took us to a number of examples in the transcript where, she suggested, it is clear that the appellant was competent to give evidence. Ms Stone drew attention to A’s use of language and to her ability to answer back, for example at one point saying “I’m not having you put words into my mouth”. Ms Stone also contended that A’s use of various words (“insinuate”, “tendency”) shows that she had a good command of vocabulary. In the circumstances, Ms Stone submitted that there was no reliable evidence that A was denied a fair trial.

For the mother, Ms Poonam Bhari opposed both the application to amend the grounds and the substantive appeal, adopting the submissions made by Ms Stone.

In recent years, courts and tribunals across the English and Welsh legal system have recognised the need to make due provision for vulnerable persons to participate in proceedings. In family proceedings, the rules are set out in Part 3A of the Family Procedure Rules, “Vulnerable Persons: Participation in Proceedings and Giving Evidence”, introduced in 2017 and supplemented by Practice Direction 3AA (“PD3AA”). There is no definition of “vulnerability” in the rules, but the provisions plainly extend to persons with comprehension difficulties of the sort identified by Dr Josling in her assessment of A.

It is necessary to set out the rules in some detail. Rule 3A.4, headed “Court’s duty to consider how a party can participate in the proceedings”, provides:

Rule 3A.5, headed “Court’s duty to consider how a party or a witness can give evidence”, provides:

Rule 3A.6 makes provisions for protected parties which are not relevant to this appeal. Rule 3A.7, headed “What the court must have regard to”, provides, so far as relevant to this appeal:

Rule 3A.8, headed “Measures”, provides inter alia:

Rule 3A.9, headed “When the duties of the court apply and recording reasons for decisions made under this Part”, provides:

Rule 3A.10(1) provides that “an application for directions under this Part may be made on the application form initiating the proceedings or during the proceedings by any person filing an application notice.”

These provisions in the rules are supplemented by PD 3AA. Paragraphs 1.3 and 1.4 of the PD provide:

These comprehensive provisions are of fundamental importance to the administration of family justice. As paragraph 1.3 of PD 3AA makes clear, the court’s duty to identify any party or witness who is a vulnerable person arises not only under the express provisions in Part 3A of the FPR but also under the overriding objective provisions in Part 1. (It is notable that the equivalent, albeit more succinct, provisions subsequently inserted in the Civil Procedure Rules are specifically contained within the overriding objective provisions in Part 1 of those rules supplemented by Practice Direction 1A.) The duty is to identify such persons “at the earliest possible stage”, an obligation reinforced in proceedings under Part IV of the Children Act by the requirement in the Public Law Outline in Practice Direction 12A to consider the need for directions as to special measures and intermediaries at the initial case management hearing.

It is equally clear that the duty to identify any party or witness who is a vulnerable person, and to assist the court to ensure that each party or witness can participate in proceedings without the quality of their evidence being diminished, extends to all parties to the proceedings and their representatives. It will almost invariably be one of the parties or their representatives, rather than the court, who first identifies that a party or witness is or may be vulnerable. We consider that good practice requires the parties’ representatives actively to address the question of whether a party is vulnerable at the outset of care proceedings. Indeed, as social workers will as a matter of course be looking for vulnerabilities in families as part of their practice, it is to be hoped that this issue will be identified before care proceedings are started. We recognise, however, that it is often not easy to identify vulnerabilities and that professionals dealing with urgent and difficult situations in families will have to contend with a large number of issues. For that reason, we consider that, to comply with the obligation under rule 3A.9, the judge conducting the case management hearing at the start of care proceedings should as a matter of course investigate whether there are, or may be, issues engaging Part 3A of the rules and that the parties’ advocates should as far as practicable be in a position to respond. Furthermore, rule 3A.9 stipulates that the court’s duty continues to the end of the proceedings. There will therefore be other points at which the court may have to address the issue – for example, where another party is joined to the proceedings.

These rules are well established and understood by judges and practitioners. Usually, where a ground rules hearing is convened, experienced advocates will agree on the correct process for which they will seek judicial approval. Of particular importance to many vulnerable witnesses will be the need for frequent breaks and also the need for straightforward questions, rather than several questions wrapped up in one. The judge will be careful to ensure that recommendations made in respect of a vulnerable witness are followed. Intermediaries will sit with the vulnerable witness and will interrupt if a question is considered to be too complicated, and will ask for breaks if deemed necessary. Judges will be careful to ensure that the ground rules established are adhered to. Advocates and judges, for whom digesting large amounts of documents quickly, and sitting for two or more hours without a break are commonplace, must be alive to the fact that most witnesses have never previously experienced the court process and that vulnerable witnesses may become overwhelmed by it.

We have focused on the issue of vulnerability in cases like the present involving parties or witnesses with limited understanding. There are other equally important provisions in Part 3A applying to victims or alleged victims of abuse and intimidation. All such provisions are a key component of the case management process which ensures compliance with the overriding objective of enabling the court to deal with cases justly. As King LJ observed in Re N (A Child)[2019] EWCA Civ 1997 at [53]:

It does not follow, however, that a failure to comply with these provisions, whether through oversight or inadvertence, will invariably lead to a successful appeal. The question on appeal in each case will be, first, whether there has been a serious procedural or other irregularity and, secondly, if so, whether as a result the decision was unjust. We are alive to the fact that many witnesses will give their evidence in a way which falls short of the standard that they would have wished for, or their advocates had hoped. Sometimes, this may be because of the very nature of human frailty, at other times it may be because a witness was deliberately deflecting or obfuscating or, worse still, lying.

Returning to the case under appeal, we have considerable sympathy with the judge. We are keenly aware of the pressures on judges hearing complex care proceedings, greatly extended by the problems caused by the Covid-19 pandemic. For reasons which it is unnecessary to spell out in detail here, this case presented the court with a range of challenging case management issues, concerning drug testing, mobile phone records, and police disclosure. Given the particular care which the judge devoted to ensuring that X had a fair opportunity to give her evidence, we feel confident that she would have adopted an equally careful approach to A’s evidence had she been aware of her difficulties. In the event, no party or legal representative identified the possibility that A was or might be a vulnerable person because of impaired level of comprehension and we are satisfied that she was fairly treated within the context of what was then known. We acknowledge the difficulties mentioned by Ms Kelly facing A’s legal team who, because of the pandemic, were unable to meet their client face to face until the appeal hearing. We observe, with the great benefit of hindsight available to this Court, that legal representatives should be particularly vigilant to detect possible vulnerabilities in their clients when they are unable to meet them in person. In this case, A’s difficulties were not immediately evident to Ms Kelly who only became concerned about her client’s level of understanding towards the end of the hearing. It is notable that the need for an intermediary was not identified in the initial cognitive assessment carried out by Dr Taylor and Ms Howe in June 2021 and the extent of A’s difficulties only became apparent in the subsequent assessments carried out by Dr Josling and Communicourt.

Nevertheless, we have reached the clear conclusion that the failure in this case to identify A’s cognitive difficulties and to make appropriate participation directions to ensure that the quality of her evidence was not diminished as a result of vulnerability amounted to a serious procedural irregularity and that as a result the outcome of the hearing was unjust. Of course, conducting the hearing over nine days, the judge was in the best position to make an assessment of the demeanour and competence of the witness, albeit in less than optimal conditions via a video link. But the new material that we have now read has an obvious bearing on the demeanour and credibility of the appellant. In some cases, there will be other evidence supporting the findings so that a flawed assessment of a witness’s evidence will not warrant any interference with the decision. In this case, however, the judge’s assessment of A’s character and plausibility of the witness were central to her ultimate findings.

In her judgment, the judge observed that assessing the parties’ evidence was not a straightforward matter and at times it was “very difficult to identify the truth”. The judge’s attribution of responsibility for the injuries between X and Y on one hand and A on the other was based on a close analysis of the accounts given by all three adults, each of whom had lied at various points. In our view, there is a significant possibility that this evaluation would have been refined if not revised by knowledge that A had difficulties of comprehension as a result of which the quality of her evidence, as defined in rule 3A.1, was likely to be diminished. As demonstrated in the passages from the judgment cited above, the decision was substantially based on the judge’s assessment of A’s evidence, from which she drew a number of conclusions adverse to A’s credibility. These included conclusions about (1) the reasons A gave for her lies about her ketamine abuse; (2) her apparent failure during her evidence to treat the drug issue with appropriate seriousness; (3) her account of how on the evening of 19 January she had noticed the abrasion to J’s arm but not the abrasion on his face; (4) her failure to inform school staff about the injuries, and (5) the delay of forty minutes in reporting the injuries to social services. It is likely that the judge’s interpretation of A’s acts and omissions on the evening of 19 January and the following morning would have been materially affected by an understanding of A’s intellectual and communication problems. Most striking of all is the judge’s description of A as being “very deflective” during her oral evidence, “able to answer the question in a way that lost the actual question”, manipulative and “very calculating”. There is at least a significant possibility that this assessment would have been different had the judge known of A’s difficulties as subsequently explained by Dr Josling.

We therefore grant A permission to amend her grounds of appeal and to adduce the evidence relating to her cognitive difficulties cited above, and we allow the appeal on the grounds of procedural irregularity set out in the amended ground. It is important to stress that we are not saying that the judge’s findings were wrong – we are not in a position to say that one way or the other. Whilst we agree that, had the appellant been treated as a vulnerable party or witness, a ground rules hearing would have taken place and the hearing conducted differently, that would not necessarily have led to a different outcome. We are allowing the appeal on the basis that the decision was unjust because there are strong reasons to suspect that A did not have a fair opportunity to present her case.

In those circumstances, we have decided that it is neither necessary nor appropriate to consider the remaining grounds for which permission has already been granted. Having concluded that the judge’s decision was unjust because of procedural irregularity, there is no point in this Court conducting a critique of the judge’s findings. If there is to be a rehearing of the fact-finding hearing, it would be unhelpful for this Court to make any observations about the findings we are setting aside.

Where findings are set aside on appeal on procedural grounds, the normal practice is for a rehearing to take place before a different judge. That may well be appropriate in this case which involves serious allegations of assault of a child which if proved would plainly give rise to a likelihood of significant harm to any child in the care of the perpetrator. We were informed, however, that S is now settled in her family and the local authority has no plan to remove her. We were also told that, in the care proceedings concerning J and his brother, an expert parenting assessment is due to be completed very shortly. J and his brother remain at home with their mother under interim supervision orders. It may therefore be the case that, notwithstanding the serious allegations which the local authority has rightly brought before the court, a rehearing would be neither proportionate nor in the interests of any of the children in these two proceedings.

We are not in a position to make a decision about this, not least because the proceedings concerning A’s children are not before us. It will, however, be a difficult decision involving a number of conflicting issues. Accordingly, the best course is to remit these proceedings to the Family Division Liaison Judge for the South-Eastern Circuit, Williams J, and to invite HHJ Nisa to transfer the proceedings concerning A’s children to Williams J so that he can reach a decision as to whether there should be a rehearing of the fact-finding hearing as to the cause of J’s injuries and, if so, to allocate the proceedings and the hearings as he thinks fit.