Plymouth City Council v HM Coroner County of Devon (Plymouth & South West District) & Anor

By this claim for judicial review Plymouth City Council challenges the lawfulness of a decision made by Mr Nigel Meadows, H.M. Coroner for the County of Devon, Plymouth and South West District, on 13 July 2004. His decision related to the scope of an inquest which, with a jury, he proposes to conduct into the death of a baby boy, who died on 16 July 2002 at the age of nine months and to whom I will refer by his first name, “Perrin”. The coroner has formally opened the inquest; and the decision under challenge was reached at the end of two substantial preliminary hearings. Pending determination of this claim he has refrained from embarking on the main part of the inquest to which his decision relates.

At the time of his death Perrin, with his two sisters, was in the care of his mother and her new cohabitant. Even prior to his birth the social services department of Plymouth City Council (to which department I will refer as “Plymouth”) had substantial concerns about the parenting capacity of the mother. Throughout Perrin’s life Plymouth provided substantial professional support for the family and sought closely to monitor his well-being and that of his sisters. Indeed eight weeks prior to his death Plymouth issued an application under s.31 (1)(b) of the Children Act 1989 for an order placing Perrin and his sisters under its supervision; and five weeks prior to his death the family proceedings court in Plymouth made such an order on an interim basis.

The unanimous medical evidence is that the cause of Perrin’s death was bronchopneumonia; that, although the illness was in its early stages, it had proved fatal because he was in a debilitated, and in particular a dehydrated, condition; and that he had suffered the dehydration in the course of the last two days of his life. There is no challenge to the evidence of one doctor that, had the mother and her cohabitant sought medical attention for Perrin even only ten hours prior to his death, his dehydration could have been treated and his death prevented. In due course the mother and her cohabitant pleaded guilty in the Crown Court to an offence of acting with cruelty towards Perrin by neglecting to take that course of action.

The decision under challenge was that the investigation to be conducted by the coroner with the jury should not, as Plymouth contended, be limited to events during the last two days of Perrin’s life, when his dehydration as a result of diarrhoea and vomiting and then his bronchopneumonia had arisen; but rather that it should extend to the role played by the statutory child protection agencies (in particular, but not only, Plymouth) in relation to Perrin during his life and, specifically, to whether, by act or omission, they had contributed to his death.

A broadened inquest of that character is sometimes described as an inquest into “systemic neglect”. But the coroner stressed that the phrase did not precisely reflect the inquest which he had decided to conduct. He said:

“The inquest would not be an analysis of the whole child protection system. Rather, the investigation looks at the operation of the system in each particular case, focusing on what information was, or should reasonably have been, known by the authorities and what action they took (or could have taken) as a result. The system is judged by its results, i.e. how it operated and whether any changes are required in order to avoid a similar consequence in the future.”

The coroner’s estimate, with which no one substantially disagrees, is that the broadened inquest which he has decided to conduct will require to be heard over four weeks.

The coroner’s decision to hold the broadened inquest was based on his conclusion that he had a duty to do so under the Human Rights Act 1998. By virtue of s.6(1) thereof, it is unlawful for a Coroner’s Court (or indeed a statutory child protection agency), as a public authority, to act in a way which is incompatible with a right under the Convention for the Protection of Human Rights and Fundamental Freedoms 1950. Article 2 of the Convention provides:

“1. Everyone’s right to life shall be protected by law…”

The coroner held that:

In the present proceedings Plymouth contends that each of the Coroner’s determinations at [8](a) and (c) above was wrong in law. On balance, and notwithstanding what follows, it will be convenient to describe them as the first and second determinations respectively. Oddly, and through no fault of his own, the coroner made the second determination at the end of the first preliminary hearing and the first determination at the end of the second such hearing. At the first such hearing, which took place on 2 and 3 June 2004, the advocates were for some reason not ready to make submissions on the first issue and so the coroner acceded to an application to hear argument on the second issue upon an assumption that the proposition in the first determination was valid. On 3 June 2004 the coroner gave oral reasons, which have been transcribed, for the second determination. The second such hearing took place on 13 July 2004, at the end of which the coroner seems to have done no more than to announce the first determination. His reasons, carefully drawn and set in 90 paragraphs, were contained in a written Ruling which followed with enviable speed, dated 22 July 2004.

The coroner wisely appointed “Counsel to the Inquest”; and, at the two preliminary hearings following which the determinations under challenge were made, Mr McFarlane Q.C. (as he then was) and Mrs Burwin appeared in that role. They submitted that the coroner was indeed required by law to hold the broadened inquest. But they made clear, of course, that their submissions were “made for the purpose of assisting the court, in particular by ensuring that all relevant aspects of an issue are canvassed.”

Before the coroner Plymouth, as now, was represented by Mr Storey QC and Miss Archer. Plymouth Primary Care Trust, seeking in particular, so I expect to protect the interests of the health visitors who had duties toward Perrin, appeared by Miss Bowron QC. The Primary Care Trust supported Plymouth’s submissions and it takes no part in the present proceedings other than to confirm its support for the claim. CAFCASS appeared by Counsel; it adopted and now adopts a stance similar to that of the Primary Care Trust. Plymouth Hospitals Trust appeared by a solicitor and also supported Plymouth’s submissions; it takes no part in the present proceedings. The mother’s cohabitant appeared by a solicitor and also supported Plymouth’s submissions; he takes no part in the present proceedings. Finally the solicitor who represented Perrin before the family proceedings court was represented by another solicitor and he also supported Plymouth’s submissions; he also takes no part in the present proceedings. At one stage the police and Perrin’s GP were also each represented before the coroner. In the present proceedings, albeit not before the coroner, Perrin’s two sisters, to whom I will refer as F and R and in respect of whose identity I impose the usual reporting restrictions, have been represented. Their solicitor places no independent argument before me but indicates opposition to Plymouth’s claim.

There is a recent decision of the House of Lords, namely R (Middleton) v H.M. Coroner for the Western District of Somerset [2004] 2 AC 182, upon the circumstances in which Article 2 obliges a coroner to conduct a broadened inquest into the possible contribution to a death by a public authority. That was a case in which a prisoner committed suicide. But there is no reported decision upon the circumstances in which a coroner should conduct such an inquest into the role played by statutory child protection agencies in relation to a child who at the time of his death was living with his family in the community. As a judge primarily of the Family Division, I readily accept Mr Storey’s assertion that in England and Wales there have been and will be numerous cases in which local authorities have substantial concerns about the capacity of a parent properly to care for a child; in which they consider it to be their duty to provide a package of support so that the child can continue to live with the parent rather than to seek to take him into foster care; in which the child suddenly dies from illness, exacerbated by parental neglect; and in which it becomes all too easy, with the benefit of hindsight, to lament the fact that a court had not made a care order upon a plan that the child be taken into foster care. Mr Storey is the first to accept that, if upon proper analysis Article 2 requires the inquest into a child’s death in such circumstances to be broadened into an enquiry, by a coroner with a jury, into the role played by the local authority and other agencies in relation to the child, considerations referable to policy, to public resources and to the arguable unsuitability of a coroner and a jury to conduct such an enquiry, count for nothing. Mr Storey submits however that, upon proper analysis, such is not required by Article 2 and that, because of the ramifications of the coroner’s decision for other cases, the importance that this court should so determine transcends the importance to all those caught up in the present case.

At the outset of the hearing I granted an application by the Secretary of State for Education and Skills to be made an Intervener in the proceedings. He elects to make no submission about the lawfulness or otherwise of the coroner’s determinations but contends that they raise matters of general importance. He also contends that consideration of the coroner’s second determination requires the court to give close attention to the fact that, in relation to Perrin’s death, a review, now pending, has been launched by Plymouth’s Area Child Protection Committee (“ACPC”) pursuant to Part 8 of guidance entitled “Working Together to Safeguard Children” which was issued to local authorities in 1999 by government departments, including that of the Secretary of State, pursuant to s.7 Local Authority Social Services Act 1970. In that regard the Secretary of State has filed a statement by Ms Gray, a senior employee in his department, in which she explains in detail the nature of a Part 8 review. I am also indebted to Mr Eadie and Ms Gallafent for their comprehensive submissions of law on behalf of the Secretary of State. To the extent that in this judgment I fail to address some of their submissions, it is because I see no need to do so in order to determine Plymouth’s claim and because it is not for a court at this primary level to essay any exegesis of the law wider than is so necessary.

In 1977 the mother was born. As a result of suffering physical and emotional abuse at the hands of her natural parents, she was placed in care and, at the age of seven, was adopted. At the age of 15 she became dependant upon heroin and throughout her life struggled with that addiction.

In 1993 the first of the mother’s six children was born. At first the child, a girl, lived with the mother and the child’s father in Cheshire. When the child was aged about two, she swallowed Methadone. The mother’s case was that one of her acquaintances had left it in a place where the toddler could get hold of it. At all events, having been in charge of the child at that time, the mother pleaded guilty to wilfully assaulting her. Thereupon, if not before, the child’s parents separated; and residence of the child was awarded to her father, with whom apparently she still lives.

The mother had begun a relationship with Mr Barlow and in June 1996 they moved to Cornwall. At that time the mother’s second child, also a girl, was born. Mr Barlow was her father. In the light, no doubt, of what had happened to the mother’s first child, an emergency protection order was obtained soon after the second child’s birth; and in due course she was placed for adoption.

In July 1997 the mother entered a residential drug rehabilitation unit. She remained living there for almost a year. Soon after her arrival there, namely on 25 August 1997, her third child, F, also a girl, was born. Mr Barlow was her father. When in June 1998 the mother left the residential unit and returned to Cornwall, the verdict of those who had been working with her was that she had made enormous strides in perceiving her previous problems; in her self-awareness; and in the reliability of her parenting. There was no move, until after Perrin’s death, to remove F from the mother’s care.

Soon after the mother’s discharge from the unit, the family moved from Cornwall to Plymouth. This was the time when Plymouth first became involved with the family. It placed F on the child protection register. There were upbeat reports upon how the family was functioning. At a case conference held on 13 August 1998 it was noted that the mother was progressing well in the community; that there was no indication that she was misusing drugs; and that, while there were initial problems over practical issues, F was in general making excellent progress. In February 1999, in the light of further progress, Plymouth removed F’s name from the register.

On 21 May 1999 the mother’s fourth child, R, also a girl, was born. Mr Barlow was her father. Months previously the mother had suffered a relapse into heroin and R was born dependent upon it. This precipitated Plymouth’s renewed involvement. But after a year it felt sufficient confidence about the functioning of the family to close its case upon it.

In October 2000, however, Plymouth developed fresh concerns about the family. In particular it was worried about what was to remain a persistent problem, namely the apparent inability of the family to attend health appointments referable to the children and the frequency of the occasions when professionals visiting the house, in particular the health visitor, were unable to obtain access, even upon advance notice. F and R were placed on the child protection register as being at risk of neglect.

In the following months full assessments of the family were made by Mr Pitcher, then the allocated social worker, with the assistance of a family support worker. An intensive package of support for the family was put into place; and the family’s functioning was monitored at monthly core group meetings as well as at case conferences reviews in January and June 2001.

For the case conference dated 7 June 2001, the health visitor, Ms John, prepared an up-beat report on the family. She reported that F was more animated and sociable than previously and continued to seek and receive affection from both her parents; and that R was less reserved than previously, was happy to engage in activities and seemed happy in the presence of both her parents. It is worthwhile to note that Ms John commented that R’s weight had moved from the 0.4th centile at age 44 weeks to just below the 9th centile in April 2001. Her summary was that there had been an improvement in attending appointments, albeit no doubt partially attributable to the help of the family support worker, and that the development and growth of the girls had progressed; but that further work needed to be done, in particular to secure the regular attendance of the girls at nursery school.

In September 2001 a psychologist assessed the mother as in need of psychotherapy and observed to a social worker that, were the mother not to respond, there might be a need temporarily to accommodate the girls. At a core group meeting on 10 September 2001 Plymouth expressed concern that the mother had been particularly disorganised during the summer and that F would be likely to continue to test boundaries with the mother, as a result of which their relationship might deteriorate. Nevertheless the meeting concluded that there were no immediate safety or protection concerns.

On 18 September 2001 Mr Barlow was killed in a car accident. The effect upon the mother’s fragile family unit was of course substantial, even though it does not seem that either of the girls or indeed the mother was as profoundly traumatised as might have been feared.

At around that time the mother developed a friendship with Mr McAndrew, a neighbour, who was then caring alone for his 7-year-old daughter.

Although during the previous 17 days the mother had apparently indicated to social workers and others that she might be pregnant, no one expected what was to happen on 15 October 2001, namely the birth of Perrin in Mr McAndrew’s bathroom. The mother and Perrin were taken to Derriford Hospital and the girls were placed into Mr McAndrew’s care. There was no doubt that Perrin was born prematurely. Nevertheless the extent of the prematurity was unclear: at one stage he was thought to have been born at 30-32 weeks’ gestation but it was later estimated that he had been born at 34 weeks’ gestation and it was upon the latter hypothesis that professionals thereafter worked.

On the date of Perrin’s birth a consultant paediatrician who had been monitoring the progress of R reported to the GP that, upon review in her clinic on 9 October, she had been lively and playful, had related to the mother well, had begun to attend nursery school and in general terms appeared to be making good progress in spite of her father’s death; and that the mother appeared more relaxed and organised than previously.

Perrin remained in hospital from the date of his birth until 27 November 2001. The last few of those days were spent in a hospital in Bristol because he had been transferred there in order to have an operation for an inguinal hernia. For at any rate parts of that long spell the mother remained in hospital with him.

On 15 November 2001 Plymouth conducted an important child protection case conference. Mr Pitcher reported to the meeting that the mother remained drug- free; that she was sensitive to the feelings of the girls; that the girls were cheerful; that F’s behaviour could be unrestrained; that the mother could not consistently control F and needed to set firmer boundaries for her; that the mother was now engaging in psychotherapy in order, in particular, to develop confidence in her ability to organise family life; and that the death of Mr Barlow would make greater demands upon the mother’s organisational abilities. Mr Pitcher summarised his view as follows:

“[The mother] has, in the past two months, faced a test that few of us has ever had to experience. Throughout this time she has maintained a clear focus on [F], [R] and, since his birth, Perrin. She has not resorted to drug use, and has been able to form open and trusting relationships with professionals. Where she has felt it necessary, she has also asserted her position. The challenges she faces, however, will remain and if anything increase. The ‘crisis’ of [Mr Barlow’s] death creates potential for real progress but also for things to overwhelm her. This is especially the case thinking of Perrin, who does not even reach ‘full-term’ until almost Christmas.

For all the changes, the basic ‘neglect’ issues remain the same: the concerns are not so much for [F’s] and [R’s] immediate safety, but for how they will develop in the future. Will the care they are receiving enable them to become confident people, able to relate to, and be accepted by, others?

In order to be able to cope, [the mother] will have to develop skills of organisation and being focussed on tasks – just being caring will not be enough …

[The mother] will not be able to do this without the right kind of support. This needs to be ongoing, and she needs a certain level of organisation to be able to use it.”

Plymouth resolved at the meeting on 15 November 2001 that Perrin should join his sisters on the child protection register as being at risk of neglect. A sixteen-point child protection plan was approved for the three children: it provided for weekly visits to the family on the part of a social worker, Ms Capron, who was to be allocated to the case in lieu of Mr Pitcher; for weekly visits by a family support worker; for attendance on the part of both girls at nursery school for five full days each week; for weekly visits on the part of Ms John, in particular to weigh Perrin and to monitor his progress; and for the continuation of the mother’s psychotherapy. It was also resolved that, were there to be any significant concerns about the development of Perrin, an urgent ‘legal’ case conference would be convened, i.e. a conference designed to consider with legal assistance whether proceedings for his protection, and/or for that of the girls, should be instituted.

In November 2001, prior to Perrin’s arrival home, Ms John and Mr Pitcher visited and found the girls well and happy and the home apparently cleaner. There were suspicions at the hospital in Bristol that the mother might again be using drugs; a urine test, however, proved negative.

On 3 December 2001, namely five days after Perrin’s arrival home from hospital, Ms John visited the home. I calculate that, including a few occasions when Perrin was presented to another health visitor at the clinic, this was the first of 27 occasions prior to Perrin’s death when he was seen by a health visitor. The number would have been even greater in the absence of a failure on the part of the mother to be at home with the children at the time of some of Ms John’s visits. Whether born of disorganisation or of a deliberate attempt to evade assessment, the mother’s failure to be present at home at the time of pre-arranged visits both by Ms John, by Ms Capron and by the family support worker, was to engender increasing concern on the part of Plymouth as the months passed.

On 24 December 2001 Ms John visited the home. It seems that by that time Mr McAndrew had in effect moved into the mother’s home and had begun fully to cohabit with her; at that time his own daughter remained living with him but early in 2002 she went into foster care. One of Ms John’s main functions was, of course, to monitor Perrin’s weight. She had to bear in mind that on any view he had been substantially premature; and it may be that the lack of clarity as to the extent of his prematurity made for some difficulty in assessing the adequacy of his weight. Nevertheless, on this occasion, he weighed 8lbs 1oz, being an increase, which Ms John regarded as satisfactory, of 1lb. 1oz. over the weight which she had recorded two weeks previously. Ms John noted that Perrin was feeding satisfactorily; that the room was warm and that the mother undressed him tenderly.

Ms John continued to be satisfied about Perrin’s condition until her visit on 21 January 2002. On that occasion she found Perrin being prop-fed in a seat in the sitting room. He was coughing, crying and clearly not well. He seemed to be becoming dehydrated. At her request the mother took Perrin to the GP, who referred him onwards to Derriford Hospital. At first the mother refused to take Perrin to hospital but Ms John, who was present at the GP’s examination, ultimately persuaded her to do so. At the hospital Perrin was diagnosed as suffering bronchiolitis but, since he did not seem significantly unwell, he was discharged. After adjusting his chronological age for what was believed to be the extent of his prematurity, the hospital concluded that his weight was just under the second centile.

On 1 February 2002 Ms John recorded that Perrin had gained only 3oz. in weight in two weeks. She attributed the disappointing level of gain to the bronchiolitis. In the following 11 days his weight increased by a further 2oz.

On 26 February 2002 Plymouth held another important child protection case conference. Substantial concern was expressed about the family. It was considered that, notwithstanding that huge efforts were being made by a variety of professionals, improvements were not being sustained. It was believed that Mr McAndrew was heavily involved in caring for the children; that the mother was missing appointments for the children with professionals; that F’s attendance at school was poor; that Perrin was very vulnerable because of his prematurity; that it was of concern that the mother had been reluctant to take him to hospital in January; and that he needed the continuation of regular monitoring. At the meeting it was decided to add further to the package of family support which was already in place: namely that, on top of the visits of Ms John, of Ms Capron and of the family support worker, there should be a short but intensive period of assessment conducted by an officer of Plymouth’s Crisis Intervention Team (CIT); that the professionals would need to assess whether the current level of care of the children was good enough; and that, were the mother and Mr McAndrew not to co-operate with the mass of professional input, an urgent legal case conference should be convened.

On 12 March 2002 the mother brought Perrin to the health visitor clinic. He had gained only six ounces in weight since 12 February. Ms John was later to explain to a case conference that she would expect a gain of about five ounces each week at that stage.

On 22 March 2002 Ms John visited the home. She was particularly concerned to note that Perrin had lost one ounce in weight since 12 March. She noted that he was coughing and looking grey. She considered that he was presenting as failing to thrive because of a cause unknown. She told the mother that he needed to be seen by the GP. But the mother refused to take him to the GP on the basis that he would only again refer him onwards to hospital unnecessarily; and she asked Ms John to leave the house. Ms John reported the matter to Plymouth, which arranged for the reservation for Perrin of a bed at Derriford Hospital. Not without difficulty, a social worker persuaded the mother to allow Perrin to be admitted to the hospital. He was admitted on 24 March and remained there until 11 April 2002.

Upon admission a registrar assessed Perrin’s weight to be at the 0.4^th centile and his head circumference to be at the same level. The registrar recorded that he was bright and alert and did not appear to be unwell. On 25 March Dr Ward, a consultant paediatrician, first saw Perrin. In his view Perrin did not look ill or wasted. Apart from a soft heart murmur, he found nothing unusual. He instructed his staff to feed Perrin normally so that his weight gain could be observed. The staff reported that Perrin fed well. They commenced to feed him puréed solids as well as milk and these he took well. Dr Ward agreed with Plymouth that he would keep Perrin in hospital until a child protection case conference, to be held on 10 April, resolved whether it would be appropriate to allow him to return home. While in hospital, and notwithstanding the more than adequate nutrition provided to him, Perrin made only fairly modest weight gain. In his report to the conference dated 8 April, Dr Ward stressed the need to have regard to the height and weight of Perrin’s parents in analysing the significance of Perrin’s weight. He said:

“Perrin’s mother is only 156 cms tall (ninth centile) and weighs 61.2 kilograms. I understand that his father was of approximately the same height and build. It is therefore very probable that genetic factors contribute to Perrin’s small size. Assuming the parental height to be correct, I have calculated that Perrin’s length would be expected to run approximately along the second centile but with a range extending from well below the 0.4 centile to the 25^th centile. His present length is just below the 0.4 centile, which is concordant with the small size of his parents and is consistent with his weight and head size. He is therefore symmetrically small rather than being underweight for his size.”

Dr Ward therefore expressed the view that Perrin’s size might have been restricted by unalterable genetic factors and that his disappointing growth since birth may have represented ‘catch-down’, i.e. movement from his birth centiles, which were determined by maternal factors, to genetically determined centiles. Although a nurse had orally told Plymouth’s team leader that the hospital did not believe that Perrin should be returned to the mother’s care, Dr Ward made no such recommendation in his report. He did, however, advise, that, should he fail to gain weight in the care of the mother, it would be appropriate to transfer responsibility for feeding Perrin to a suitable third party, probably a foster carer rather than hospital staff, in order to compare his rate of growth in the care of the mother with that in the care of a third party who was adopting the same feeding regime.

Present at the case conference on 10 April was the Chair, a member of Plymouth’s legal department, Ms Capron, the family support worker, Ms John, the head teacher at the nursery school attended by the girls, the mother, Mr McAndrew and a solicitor for the mother. It was noted that Dr Ward had suggested that Perrin’s poor weight gain could be attributable to genetic factors. A number of other written reports were considered, in particular that of Ms Sobey of Plymouth’s CIT, who had, pursuant to the resolution made at the last conference, begun work with the family on 28 March and who, between then and 17 May, when the work ended, made no less than 47 visits to the family, additional to those by Ms John, Ms Capron and the family support worker. Ms Sobey reported to the meeting that so far the mother was engaging well with her and that the girls appeared happy at home. The minutes of the meeting reflect the Chair’s summary as follows:

“It’s now very difficult to understand the current situation because, if there is no drug misuse, why is the situation so disorganised? There has been a lot of effort by professionals to support the family, especially recently, and since Perrin was born in October, either [the mother] is not at home or she has not answered the door and appointments have been missed or lost. [The family support worker] has been a help to [the mother] in the past but their relationship has broken down, and [the mother] has a difficult relationship with [Ms John].

...

At times [F] and [R] seem fine and relaxed but have also been described as sad and watchful. There are times when they do not get to school and nursery on time; this is an important time for them, where they need to make friends and be a part of the group and learn. There have also been times where nobody has arrived at school and nursery to collect them at the end of the day.

…

Perrin is a premature baby, small and vulnerable, and there are worries about his poor weight gain and whether he has seen [Ms John] often enough because he needs to be checked regularly for growth. When [Ms John] has said that Perrin needs to go to hospital, [the mother] has not wanted to go there.

…

Professionals know that [the mother] loves her children and are clear that she has warmth and affection for them but, at the first meeting, the same issues were discussed as they have been today… there is a lot of work involved in looking after 3 small children without their father … although [Mr McAndrew] is present at times to help her.”

At the meeting a 20-point child protection plan was evolved to serve the needs of the family. In particular it was resolved that Plymouth would initiate court proceedings and seek an interim supervision order referable to the children. In this regard it was recorded as follows:

“It is the Local Authority’s wish that these children should remain in the care of their mother. However, at this point there remain serious concerns about a lack of co-operation and access to the children, attendance at school and Perrin’s weight. Our view is that these issues need to be urgently resolved and that many previous attempts to help the family have not led to sustained and consistent improvement.”

It was agreed that Perrin would be discharged from hospital to the mother’s care but that he should be kept under medical review as well as under the weekly review of Ms John. It was resolved that another conference should take place on 27 May and the following warning was recorded:

“Given the longstanding nature of the concerns about this family, the social worker will also begin to identify any extended family members who might care for the children should this plan prove unsuccessful, as well as exploring other placement options.”

Accordingly on 11 April 2002 Perrin was discharged from hospital and returned home. During his 18 days in hospital he had apparently gained only 0.56kgs. (just over 1lb).

During the following weeks Plymouth prepared the documents necessary for the issue of proceedings referable to the children in the city’s family proceedings court. It is of some importance to note the extent of the information included in the material which was presented to the magistrates upon issue of the application on 22 May 2002. Ms Capron signed an 11-page statement, which is not said to be other than a satisfactory summary of the long history. She also signed a document entitled “Welfare Check List”; and she and her team manager signed a document entitled “Interim Care Plan”. In both documents it was stated that Perrin’s physical growth and development needed to be closely monitored as a result of concerns about his poor weight gain and that his feeding programme had to be strictly maintained. In the interim care plan it was stated that the mother loved her children, did not want them to be removed from her care, acknowledged that she needed to improve the quality of her care and was prepared to co-operate with Plymouth’s child protection plan. It was stated that Plymouth wanted the children to remain living in the mother’s care, provided that she could sustain the requisite improvements. In both documents, however, reference was made to the possible need to remove the children from the mother’s care if she failed to co-operate with Plymouth or proved unable to provide adequate care for them.

Meanwhile, between the date of Perrin’s discharge home and the date of issue of proceedings, the intensive package of support provided by Plymouth (and by the health visitor) was, on balance, producing grounds for optimism. Until early in May, when he developed chicken pox, Perrin put on weight to an extent which satisfied Ms John. On 17 May Ms Sobey concluded her 47^th and final session at the family home and, on the basis of her by then intimate knowledge of family circumstances, reported to Plymouth that the family had co-operated with her; that the mother and Mr McAndrew responded warmly to Perrin; that the adults had a loving relationship; that the mother was a loving mother, who constantly told the children that she loved them and who cuddled them; that she had problems in relation to placing boundaries around the behaviour of F but was prepared to attend parenting classes in this regard; and that the flat was often untidy. She recommended a comprehensive assessment of the mother’s parenting skills.

The case conference due to take place on 27 May had to be cancelled as a result of the ill-health of Ms Capron.

By letter to Plymouth dated 11 June 2002 Dr Ward expressed concern that three hospital appointments referable to Perrin had been missed. The first was an appointment on 7 May at Derriford Hospital referable to Perrin’s heart murmur. The second was a review of Perrin by Dr Ward himself on 14 May. It is clear that Ms Sobey had advised the mother that, in the light of Perrin’s chicken pox, she could not take him to that appointment; but it is unclear whether the mother or Mr McAndrew had notified Dr Ward that the appointment could not be kept. The third was an appointment on 24 May, when Perrin was due to be seen by a surgeon at Derriford Hospital in connection with his hernia repair; it does seem, however, that the parents had telephoned in order to explain that, as a result of Perrin’s continued chicken pox, that appointment could not be kept.

On 14 June 2002 the family proceedings court conducted its first hearing of Plymouth’s application. It seems that the mother was represented by her solicitor. Although upon issuing the application Plymouth had approached CAFCASS with a view to the appointment of a Children’s Guardian to represent the children, no such appointment had been made by the date of the first hearing; but a solicitor, Mr Yates, appeared for them, pursuant to appointment by the court. The magistrates read the material filed by Plymouth and granted it an interim supervision order until the date of the next hearing, fixed for 19 July. They also apparently expressed concern that the City Council’s housing department was seeking to evict the mother for arrears of rent at a time when its social services department was proposing that such should be her home with the children.

On the same day, namely 14 June 2002, Ms John visited the home. She was concerned that Perrin’s weight, namely 12lbs 10 oz., was unchanged over the previous 17 days. On 17 June the family support worker visited. She saw the children and recorded that Perrin was taking very little feed. On 25 June the mother took Perrin to be weighed by the health visitor at the clinic. He had gained 3oz. since 14 June. Thereafter the family support worker found it increasingly difficult to make her visits: either they were cancelled by the mother or by Mr McAndrew on her behalf or the family was simply not at home when she made her pre-arranged call.

On 9 July 2002 Ms Capron made her last visit to the home prior to Perrin’s death one week later. I believe that the coroner may have made a slight error in recording that Perrin was asleep during this visit. The records suggest to me that it was when the family support worker made her independent visit to the home on that day that Perrin was asleep. When Ms Capron made her visit, she observed Perrin to be eating well. She considered that the mother and Mr McAndrew appeared to be very loving and affectionate towards Perrin, who was smiling and responsive. The mother told her that Perrin was the most loving of all her children. Ms Capron noted that their lounge was clean and tidier than usual. On that visit Mr McAndrew admitted to her that he occasionally dipped into street drugs.

On 12 July 2002 Ms John was unable to gain entry to the home at the pre-arranged time; nor did she gain entry when she returned later. She discussed this problem with Ms Capron. Three days later it was the family support worker who found herself on the doorstep unable to enter the home or see the family at the pre-arranged time. Later that afternoon Ms Capron herself visited the home but, again, could not gain entry.

On 16 July 2002 Plymouth held a further child protection case conference. Although the mother’s solicitor again attended, the mother and Mr McAndrew did not attend. The coroner was later to remark that it did not appear that anyone gave thought either to making enquiries as to their whereabouts or to securing their attendance. With great respect, I am not sure that his remark does justice to the efforts of Ms Capron, who had on 9 July arranged to collect them and Perrin from outside the girls’ school and to take them to the conference and who, when she failed to find them there on that day, tried to contact them by mobile phone. The minute of the meeting shows that the family support worker considered that the mother had no insight into the impact of allowing the girls to be late for school; and she pointed out that all three children had missed important health appointments. In her view, however, both adults had a loving relationship with the children. The Chair’s summary, as minuted, was that concerns about the family were long-standing; that there had been some recent improvement in the state of the home and in the presentation of the children; but that some of the improvements achieved by the intervention of Ms Sobey of CIT had not been maintained. The plan of the meeting was to continue to apply for supervision orders; and for the multi-faceted support and assessment of the family to be continued.

As the professionals discussed the family problems at the case conference, Perrin was dying. Two friends of Mr McAndrew, namely Ms Sharpe and her partner Mr Clark, had invited the family to their home in order to celebrate the birthday of Ms Sharpe’s older child. At about 11.30a.m. on that day Mr McAndrew and the mother arrived at their home, together with all three children. Ms Sharpe noticed immediately that Perrin did not look very well. At her house he vomited and he also needed to be changed. After he was changed, Mr McAndrew held Perrin on his lap on the sofa. Mr Clark noticed that his head was hanging down, that his eyes were only half open and that he was making no noise. Both Mr Clark and Ms Sharpe advised the mother and Mr McAndrew to take Perrin straight to hospital. They indicated that they would do so. They left the party at about 12.30 p.m. but they did not take Perrin to hospital. They were later to say that in the afternoon his condition improved. Be that as it may, at 10p.m. they called an ambulance, which conveyed Perrin, apparently suffering cardiac arrest, to hospital. He was dead on arrival at the hospital.

On 18 July 2002 CAFCASS appointed a guardian, namely Mrs Pavey, to represent F and R in the proceedings brought by Plymouth. In adjourning the hearing until 19 July, the magistrates had on 14 June directed CAFCASS to appoint a guardian by 12 July and had provided that, if no guardian was in place by the time of the adjourned hearing, the regional manager of CAFCASS should attend before them and explain the failure to make an appointment.

On the same date, namely 18 July, at Great Ormond Street Hospital, Professor Risdon conducted a post mortem examination upon the body of Perrin at the request of the coroner. The weight of Perrin’s body had reduced from 12lbs 13oz., as recorded on 25 June, to 11lbs. 5oz; but of course death itself has a reducing effect upon body weight. His concluding comments were that histology of the lungs indicated early bronchopneumonia; that Perrin appeared to be poorly nourished in that his weight was below the 0.4th centile; that he was dehydrated, as evidenced by sunken eyes and elastic skin; and that in his opinion Perrin’s debilitated state might have been a factor in his developing bronchopneumonia which, although the changes in the lung were relatively early, had proved fatal.

At the hearing on 19 July 2002, the magistrates, apprised of the tragedy in relation to Perrin, acceded to Plymouth’s application to make interim care orders in respect of F and R and transferred the application to the county court. F and R went at once into short-term foster care.

On 31 July 2002 the ACPC, acting by its Chair, Ms Lapthorne, initiated the Part 8 review and notified the Department of Health thereof. Ms Lapthorne resolved however that the review should not proceed until all legal proceedings, whether the care proceedings or any criminal or coronial proceedings referable to Perrin’s death, had been concluded.

On 11 September 2002 the coroner opened his inquest into the death of Perrin. By application dated 13 December 2002 he issued an application in the care proceedings relating to F and R for disclosure to him of documents filed therein. In that the care proceedings had been transferred by a circuit judge to the High Court, Family Division, the coroner’s application came before Coleridge J. on 20 March 2003. By consent he granted limited disclosure to the coroner but adjourned the bulk of his application.

On 18 August 2003 the mother gave birth to her sixth child, J, a girl. The mother left J at the maternity hospital. She was taken at once into interim care; and care proceedings were launched in respect of her and joined with the existing proceedings relating to F and R.

On 1 September 2003 His Honour Judge O’Malley, sitting as a Deputy Judge of the High Court, embarked on the final hearing of the care proceedings relating to F and R. In that the mother and Mr McAndrew did not attend the hearing in person, but only by lawyers, the hearing proceeded swiftly and without active contest. The judge held that the threshold to the making of care orders relating to F and R had been crossed in that they had been likely to suffer significant harm; and he made care orders relating to them and orders freeing them for adoption. He made an interim care order in relation to J, who, at a later stage, was adopted. I am told that even today F and R have the status only of being free for adoption rather than of yet having been adopted.

At the hearing Judge O’Malley thereupon addressed an application by the Children’s Guardian to authorise the disclosure of her report both to the Secretary of State for Health and to the coroner. The application was supported by counsel on behalf of the mother but was opposed by Mr Storey on behalf of Plymouth. The guardian’s report, which, as I will explain, is not yet in the possession of the Coroner and is therefore not in evidence in these proceedings, apparently runs to over 100 pages and is said to contain detailed criticisms of the way in which Plymouth had approached its duties in relation to the family in the months, and perhaps years, prior to Perrin’s death.

On 3 September, 2003, at the close of the hearing, the judge announced that he had decided to refuse the guardian’s application; and he explained his reasons in a written judgment dated 8 September. The guardian’s argument had been substantially founded upon the contention that Article 2 was engaged in relation to Perrin and that the investigative duty created by it required the coroner, with the aid of documents such as her report, to conduct a full enquiry into whether the statutory agencies had, by commission or omission, played a part in Perrin’s death. One of Mr Storey’s responses to that argument, repeated in these present proceedings, was that the Part 8 review would adequately meet any such investigative duty as might exist. The judge upheld Mr Storey’s submission in that regard. He also observed that the guardian’s report made criticisms, which had not been tested or ruled upon in any way in the proceedings before him. He did, however, express concern that the Part 8 review, initiated over one year previously, was not yet being actively conducted; and he doubted whether any concern on the part of Ms Lapthorne that the culminating report might fall to be disclosed to the coroner justified further delay in the conduct of the review. He also made clear that his decision was without prejudice to any application for disclosure of the guardian’s report which, by the restoration of his application adjourned by Coleridge J. and appropriate enlargement of it, the coroner himself might make.

The mother and Mr McAndrew were charged with the offence of cruelty to a person under 16 years, contrary to section 1 of the Children and Young Persons Act 1933. The particulars of the charge were that, between 14 and 17 July 2002, having the responsibility for Perrin, each had wilfully assaulted, ill-treated or neglected him in a manner likely to cause him unnecessary suffering. On 13 January 2004 the mother and Mr McAndew each pleaded guilty to the charge but only in terms of neglect. The basis of the plea, accepted by the crown court judge, was that their failure to seek medical attention for Perrin, until it was too late, had not been deliberate but reflected a failure to show the level of care for him required by the Act of 1933. On a date in February 2004 the mother was sentenced to two years in prison and Mr McAndrew was sentenced to 15 months in prison for these offences. It seems that, in the course of his plea in mitigation on her behalf, counsel asserted that the mother had continued to abuse Class A drugs during Perrin’s life.

Tragically, and in circumstances not clearly explained, the mother died in prison within a few days of receiving her sentence.

At a hearing on 9 June 2004 Judge O’Malley determined a further application for disclosure to the coroner of the guardian’s report. As foreshadowed in his earlier judgment, the application was on this occasion made by the coroner himself, albeit supported by the guardian. As before, it was opposed by Plymouth. By the time of this hearing, the coroner had made the second, but not the first, determination; and so it was clear to the judge that the coroner might be about to embark on a full-scale enquiry into the role played by Plymouth and by the other statutory agencies in relation to the family prior to Perrin’s death. The judge was also, however, apprised of the fact that if, following further argument, the coroner was also to make the first determination, Plymouth would wish to challenge his composite decision in the present proceedings. In the event, as explained in a written judgment disseminated after 9 June, the judge determined that the bulk of the guardian’s report should be disclosed to the coroner but, in the light of the possible proceedings for judicial review, he stayed his order for disclosure. He also added:

“I should however say that the material now disclosed by [Plymouth] in relation to their participation in the Part 8 review appears comprehensively to define the issues relevant to the local authority’s conduct, and it indicates to me how thorough the Part 8 review is likely to be.”

The judge also accepted that the guardian’s report was not direct evidence but merely a commentary upon the primary evidence relating to the treatment of the family by Plymouth and others and he observed that it might well be that the coroner’s access to the guardian’s report brought no fresh material to light.

Article 2, read in conjunction with s.6 (1) and (6) of the Human Rights Act 1998, imposes three distinct duties on the state:

It is thus clear that the state’s investigative duty does not arise only in a case in which there has been a breach, or arguable breach, of the state’s protective duty to the deceased. In Powell v UK ECHR, 4 May 2000, 45305/99, the applicants’ son died of Addison’s disease which his doctors had negligently failed to diagnose. The European Court held that, in that it had made adequate provision for securing that health professionals met high standards, the UK was not in breach of its protective duty. The court held that its investigative duty remained. In providing, however, a facility for the applicants to bring civil proceedings against the doctors, which they had indeed brought but, as part of a settlement, had discontinued, the UK had discharged that duty. Similarly, in Mastromatteo v Italy, ECHR, 24 October 2002, 37703/97, in which a bystander had been murdered by robbers, the European Court held that Italy was not in breach of its protective duty and had discharged its investigative duty by providing the criminal proceedings in which the murderers had been convicted.

Thus on any view the state has been under a duty to set up an appropriate investigation into Perrin’s death. It is clear that, by their criminal neglect of him during the two days which preceded it, the mother and Mr McAndrew contributed to his death. Thus, if Perrin’s death was the result of no wrongful act other than theirs, the state’s investigative duty has been discharged by its provision of the criminal proceedings in which they were convicted. If, however, his death was also arguably the result of breach of the state’s protective duty under Article 2, the investigative duty extends to an appropriate investigation of such arguable breach. That is why in the present case a subsisting investigative duty exists only if there has been at least an arguable breach by the state of its protective duty towards Perrin.

What is the nature of the state’s protective duty, i.e. the duty to protect the right to life, owed to a child living with a parent in the community? Happily there was before the coroner and is in this court no dispute in this regard. Five authorities combine to illumine the agreed answer.

First, Osman v UK [1999] 1 FLR 193. A male teacher developed an obsession in relation to a male pupil. He changed his name by deed poll to the pupil’s surname. He was required to teach at another school. The pupil’s family’s property was subjected to numerous acts of vandalism, which the police investigated and in respect of which they interviewed the teacher, who denied responsibility but whom, albeit without the evidence with which to prosecute, they considered to be the culprit. To the knowledge of the police the teacher perpetrated other irrational, criminal acts and announced “in a few months I’ll be doing life”. To his employers he said that he proposed to do “a sort of Hungerford”. On three occasions within a week he was seen, to the knowledge of the police, outside the pupil’s family home and, later that week, he killed the pupil’s father and seriously wounded the pupil. The European Court dismissed the application of the pupil and his mother that the police had breached their protective duty towards the father (and the pupil) under Article 2. It said:

“115.

… It is … accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. The scope of this obligation is a matter of dispute between the parties.

116.

For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention.

In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person …, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.”

The court held at [119] and [121] that the evidence failed to satisfy the above test in that, notwithstanding their concerns about the teacher’s intentions towards the family, the police did not know – and it could not be said that they ought to have known – that their lives were at real and immediate risk.

Second, R (A) v Lord Saville of Newdigate [2002] 1 WLR 1249. The Tribunal of Inquiry into events on Bloody Sunday directed soldiers to give evidence to it in Londonderry rather than in Great Britain. The soldiers claimed that, in doing so, the tribunal breached its protective duty towards them under Article 2 in that, in Londonderry, they would be in fear of their lives. In dismissing the tribunal’s appeal against the upholding of the soldiers’ claim the Court of Appeal commented on the test propounded in Osman as follows at [28]:

“Of one thing we are quite clear. The degree of risk described as “real and immediate” in Osman v United Kingdom …, as used in that case, was a very high degree of risk calling for positive action from the authorities to protect life. It was “a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party” which was, or ought to have been, known to the authorities ... Such a degree of risk is well above the threshold that will engage article 2 when the risk is attendant upon some action that an authority is contemplating putting into effect itself. It was not an appropriate test to invoke in the present context.”

The court found at [52] that the soldiers had good cause for fearing for their safety in Londonderry; and it held as a result of a balance of all the circumstances that the tribunal’s direction infringed the state’s protective duty towards them.

Third, Hurst v HM Coroner Northern District of London, Q.B. Divisional Court, 4 July 2003, [2003] EWHC 1721. The deceased was killed by Mr Reid, a neighbour, who was convicted of his manslaughter. The court quashed the coroner’s refusal to accede to the application of the deceased’s father to resume an adjourned inquest into the death, at which his court would investigate the role played by the police and the local housing authority in relation to the death. Applying at [36] the Osman test and accepting at [37] that it was high, the court concluded at [111] that it was arguable that the police and/or the housing authority knew or ought to have known of a real and immediate risk to the deceased’s life and did not do what might reasonably have been expected to avoid it; and held at [109] that it was inappropriate for the court to evaluate the strength of the case beyond what was necessary to reach that conclusion. Prima facie, however, the facts seem to me to have been stark:

Fourth, Z v UK [2001] 2 FLR 612. Four children complained that, for four years before they were taken into care by the local authority, its social services department was well aware that they were living in filthy conditions and suffering “appalling” neglect in the home of their parents; and they established to the satisfaction of the European Court that the state had been in breach of its duty under Article 3 to protect them against inhuman or degrading treatment. The significance of the case for present purposes is that the court had to consider the nature of the protective duty owed, albeit under Article 3, by social services departments to children living in the community and in particular that at [74] it interpreted the duty to be that set out in Osman “mutatis mutandis”. Thus, without contest on the part of the UK, the court upheld the commission’s conclusion that the social services department had been aware that the children had been suffering such neglect as amounted to inhuman and degrading treatment and had failed to take reasonable steps to prevent its continuance. It appended a significant comment:

“The Court acknowledges the difficult and sensitive decisions facing social services and the important countervailing principle of respecting and preserving family life. The present case however leaves no doubt as to the failure of the system to protect these child applicants from serious, long-term neglect and abuse.”

Fifth, E v UK, ECHR, 26 November 2002, 33218/96. This case followed in the slip-stream of Z. Four sibling adults complained that, when they had been children in the care of their mother, her cohabitant had perpetrated severe physical, and in the case of the female applicants sexual, abuse upon them and that it continued even after the cohabitant was convicted for indecent assaults upon two of them and placed on probation. Adapting the Osman test, the European Court held at [92] and [96-97] that the state was in breach of its protective duty to the applicants under Article 3 in that the social services department, which had been closely involved with the family for many years, should have been aware that the cohabitant continued to have close contact with the family and, at any rate following the probation order, that he presented a risk of Article 3 mistreatment of the applicants, in relation to which it failed to take reasonable preventative steps. Mr Hoskins on behalf of the coroner in the present proceedings relies on the following observation at [99]:

“The test under Article 3 … does not require it to be shown that “but for” the failing or omission of the public authority ill-treatment would not have happened. A failure to take reasonably available measures which could have had a real prospect of altering the outcome or mitigating the harm is sufficient to engage the responsibility of the State.”

But in my view the comment does little more than to restate in different words the proposition articulated in Osman at [116] that, where the duty is triggered by the knowledge apt to the relevant article, the authorities will be in breach of it if they have failed to take measures “which, judged reasonably, might have been expected to avoid that risk”.

In my view, therefore, the coroner impeccably stated the law applicable to the first determination when he held, at [61] of his Ruling, that it was his duty to consider whether there was or might have been a breach by the state of its protective duty towards Perrin under Article 2 and, at [60.3], that:

“A breach will be found if it is established that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge.”

I now have to consider, however, whether he correctly applied the law to the facts when he came to make his first determination.

The central question in the case is narrow, namely whether the child protection agencies, in particular Plymouth, arguably knew or ought to have known of a real and immediate risk to Perrin’s life. If so, it is obvious that they did not take all measures which might reasonably have been expected to avoid it. Such measures would have been to apply first for an emergency protection order under s.44 of the Act of 1989 and then for an interim care order under ss.31 and 38 upon a plan that at least for the time being Perrin should remain in foster care.

It follows that the central question is not the broad question whether Plymouth should at some stage during Perrin’s life have applied for an interim care order in respect of him upon a plan to take him into foster care. It is easy to slip into thinking that such is the central question because, had he been in foster care on 14, 15 and 16 July 2002, he would surely now be alive. But, in the absence of arguable knowledge, actual or constructive, of a real and immediate risk to Perrin’s life, no question is raised under Article 2 for the coroner and his jury to investigate.

In these proceedings Mr Storey mounts what at first sight is a powerful defence of Plymouth’s actions towards Perrin during his life. My belief is that, in doing so, even he, at times, takes his eye off the ball of the narrow central question. Thus in [77] to [79] below I propose only to summarise my conclusions on his wider arguments.

Mr Storey is correct to argue that, in the discharge of their child protection functions, local authorities have a fundamental duty to seek to maintain a child’s home with his parents or parent unless the child’s welfare dictates otherwise. To that effect is:

Mr Storey is also right to claim that during Perrin’s life Plymouth and the health visitors provided an astonishing level of support for the family, designed not only to protect the three children and to improve the capacity of the mother and Mr McAndrew to provide adequate and consistent day-to-day care for them but also to enable Plymouth to monitor their welfare. During the 30 weeks of life spent by Perrin at home

Mr Storey turns to address the suggestion that Plymouth should have applied for an interim care order referable to Perrin. The first stage of the procedure under Part 8 is for each of the relevant statutory agencies to present to the ACPC a detailed management review of its performance in relation to the deceased child, whereupon the reviews are surveyed and a critical overview prepared. Plymouth commissioned Mr Bateman, an independent social worker, to compile the review of its performance in relation to Perrin for presentation to the ACPC. In his review, dated March 2004, Mr Bateman suggested that by February 2002 there were sufficient grounds to apply for an interim care order in respect of Perrin and that, had a guardian been appointed by the time of the hearing on 14 June 2002, she or he would be likely to have recommended to the magistrates the making of interim care orders referable (so Mr Bateman implied) to all three children. As I will show, these comments impressed the coroner. But it is conceivable that he did not appreciate that, as they stand, they are ambiguous. For was Mr Bateman postulating interim care orders on a plan to leave the children at home unless circumstances were significantly to deteriorate or on a plan to take them into foster care? I can state with confidence that, in all the circumstances and in the light in particular of the facts that the mother had cared for F and R just about adequately throughout their lives and that, with all her faults, she was a loving mother who had a close relationship with all three children and was doing her limited best for them, a court would not have made an interim care order on a plan to take the children, or even just Perrin alone, into foster care. On the evidence which I have set out in Section B that stage had not been reached, whether by February, April or June 2002. It is more debatable whether a court would have made interim care orders on a plan to leave the children at home unless circumstances were significantly to deteriorate. Had the decision fallen to me, I would, like the magistrates on 14 June 2002, have made interim supervision orders and have resolved to study closely whether the quality of the mother’s parenting of the children improved sufficiently in response to that lower level of legal intrusion. I recognise, however, that some of my colleagues, both judges and magistrates, might reasonably have considered that the unreliable nature of her day-to-day care of the children by then required that parental responsibility for them be shared between her and Plymouth by virtue of interim care orders.

I return to the narrow, central question. Mr Hoskins helpfully summarises the parts of the evidence to which Mr McFarlane drew the coroner’s attention as follows:-

the three children were on the child protection register as being at risk of neglect;

the case conference on 10 April 2002 revealed danger signals;

the case conference on 27 May had to be cancelled;

in May three hospital appointments referable to Perrin were not kept; and

The coroner explained his first determination in the following crucial paragraph:

“On balance I prefer and accept the submissions made to me by Mr McFarlane. I do not think it is reasonable or appropriate simply to view the last 48 hours in isolation without considering the historical background and factual context in this case. It is clearly multi factorial. At this stage I cannot see how I could possibly come to the conclusion that there could be no arguable breach of Article 2. At the Inquest examination of witnesses will bring out more evidence and detail. This may well be a case whereby the State agencies should have intervened long before Perrin’s death or at any rate had the information on which that decision could have been considered. He was always vulnerable and at risk. The removal of Perrin from the home or at least applying for a Care Order earlier and involving a guardian may have saved his life. At any rate, earlier action may have concentrated everyone’s mind and, for example, ensured that if there were any further missed appointments immediate action would have been taken. Support for this view can be found in Mr Bateman’s observations in the [Plymouth] chronology. I believe it is too simplistic to attribute the entire responsibility for the death simply to [the mother] and [Mr McAndrew] in isolation. In my view I am in a similar position to that which Lord Justice Rose found himself in Hurst.”

With respect to the coroner, I consider that, when he reached his decision, he lost sight of the test which he had resolved to apply. Of course Perrin’s removal from home would have saved his life. Of course earlier action would have concentrated minds. Of course Perrin was always vulnerable and “at risk”; that was why Plymouth put him on the register. But the question, ultimately unanswered by the coroner, was whether arguably his very life was, or should have been, known to be at real and immediate risk.

I believe that, in answering the question, the following are the most relevant considerations:

There is an additional point. On an application for an interim supervision order, a court can instead make an interim care order: s.31(5)(b) and (11) of the Act of 1989. A court has a duty “carefully to scrutinise the care plan prepared by the local authority and to satisfy itself that the care plan is in the child’s interests”: Re J (Minors) (Care: Care Plan) [1994] 1 FLR 253 at 258, per Wall J (as he then was). To the magistrates on 14 June 2002 Plymouth presented a detailed history of its concerns about the family, at least up until 17 April, being the date of Ms Capron’s statement. It is in practice extremely rare for a court, particularly at that initial stage and prior to the appointment of a guardian, to reject a local authority’s care plan and to request it to put forward another. But there is one situation in which the magistrates would undoubtedly have done so: were they to have inferred from the history presented to them that the life of Perrin was arguably at real and immediate risk, they would not have endorsed the plan for him to continue to live for the time being with the mother.

In Hurst the danger which Mr Reid presented to the life of the deceased was prima facie glaring. The facts in Osman are particularly instructive because, although the danger which the teacher presented to the deceased’s family was known to be serious and immediate, it was found not to extend to danger to their very lives. In Z and E the risk required to have been known by the local authorities was different in that it was referable to Article 3. But in each case there was, prima facie, a catalogue of astonishing inactivity on their part in the face of plain risk of gross mistreatment. Even after adjusting for the difference in the articles, those cases were in a different league from the present.

If and insofar as the coroner concluded that on the evidence before him it was arguable that the statutory child protection agencies knew or ought to have known of a real and immediate risk to Perrin’s life, I hold for the above reasons that he erred in law. There was no evidence to justify such a conclusion. The trigger for the investigative duty under Article 2 was not activated. Even were his second determination correct, he is not required (and, unless required, it is not suggested to be appropriate for him) to hold the broadened inquest identified in his Ruling. Accordingly I propose to quash his decision in terms upon which I invite counsel to make submissions.

In the light of my conclusion in respect of the coroner’s first determination, the above question is academic. A full answer to it would lengthen this judgment intolerably. I will confine myself to indicating the shape of the arguments upon it and to offering my provisional view of them.

(a) The Convention is not prescriptive about the manner in which an investigative duty under Article 2 should be discharged; but, the more serious the events which call for enquiry, the more intensive should be the process of public scrutiny: see Khan at [62(2)].

Within these accepted principles Mr Storey argues that in his second determination the coroner was wrong to conclude that the investigative duty had not been, or was not being, discharged by the investigations undertaken, or able to be undertaken, in the care proceedings referable to F and R, the criminal proceedings against the mother and Mr McAndrew and the Part 8 review, or by a combination of them.

My view is that in this context the care proceedings are of no significance. There was no active contest to the making of care orders referable to F and R upon a plan that they should be adopted; and Judge O’Malley heard no oral evidence. He undertook no enquiry into the criticisms of Plymouth apparently made in the guardian’s report. Mr Storey points out that in care proceedings the court is not constrained to take the shortest route to an uncontested disposal: Re M (Threshold Criteria: Parental Concessions) [1999] 2 FLR 728. But I believe it to be insufficient for Mr Storey to say that the judge could have elected to conduct an investigation into the role played by the child protection agencies towards Perrin; and insufficient for him to add, true though it is, that a hearing before an expert care judge might have been an excellent vehicle for the discharge of any Article 2 duty. Looking back, I find that, in care proceedings relating to siblings of a deceased to whom (although at the time I did not thus analyse it) the local authority had arguably breached its protective duty, I have unwittingly held several Article 2 investigations, or would have done so if I had made my conclusions public. In like circumstances it may well be worthwhile for a care judge to consider whether his is the convenient forum for the discharge of any investigative duty which has arisen.

I am clear also that in this context the criminal proceedings are of no significance. The mother and Mr McAndrew pleaded guilty. Even had they pleaded not guilty, I have difficulty in imagining how the admissible evidence could have encompassed all such as related to breach or otherwise of the protective duty owed by state agencies towards Perrin.

Mr Storey’s argument turns primarily on the Part 8 review. In paragraph 8.2 of Part 8 of “Working Together …” it is explained that the purpose of a Part 8 review is to establish whether there are lessons to be learned from a child’s death about the way in which local professionals and agencies work together to safeguard children and if so to identify them and thereby to improve inter-agency working. “Case reviews”, it is stated in paragraph 8.3, “are not enquiries into how a child died or who is culpable; that is a matter for Coroners and Criminal Courts respectively to determine, as appropriate”.

In each area the ACPC is established by the local authority. Nevertheless its membership comprises representatives of all main agencies, including the police and NHS bodies. And, in relation to a Part 8 review, further independence of the local authority can be achieved by what at an early stage Ms Lapthorne did in the present case, namely to appoint an independent consultant social worker to collate the management reviews and to write the overview report for submission to the committee. Mr Storey says that, since the hearing before the coroner, the social worker has been preparing the overview. By now her report may have been submitted to the committee.

There are in my view aspects of a Part 8 review which admirably qualify it to be the vehicle for an Article 2 investigation. It is likely to be rigorous; it is born of contributions by those with expertise in a variety of relevant fields; and indeed its midwife, the overview reporter, brings analogous expertise. Contrary to how it may appear at first sight, the review may also qualify as sufficiently independent. Furthermore Part 8 requires at least an executive summary of the report to be made public. Nevertheless Mr Storey’s argument faces difficulties. A Part 8 review is not a judicial enquiry. There is no hearing at which oral evidence is given and thus no facility for assertions to be directly tested by or on behalf of next of kin, although, by invitation, they can make written representations. But the main problem, with which another court may have to wrestle, is that the focus of a Part 8 review is upon inter-agency failure rather than upon breach by agencies, sometimes in combination but surely more often when acting alone, of their duty under Article 2 to take all reasonable steps to protect the child’s life.