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:

(a)

the statutory child protection agencies, as public authorities, had, or might have, failed to protect Perrin’s right to life under Article 2;

(b)

a duty was therefore cast upon the state by Article 2 to conduct an investigation into whether any such agency had indeed infringed Perrin’s right to life (“the investigative duty”); and

(c)

the investigative duty was not discharged by any other investigation which was being conducted, or could have been conducted, into the role played by the child protection agencies in relation to Perrin, with the result that it fell to his court to discharge it.

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.

56.

Following Perrin’s death the police made elaborate enquiries with a view to determining whether criminal proceedings should be brought in relation to it. In particular they placed Professor Risdon’s report and numerous other documents before Professor Fleming, a consultant paediatrician, with a view to his commenting upon the circumstances surrounding Perrin’s death. In a statement dated 27 March 2003 Professor Fleming surveyed the history and concurred with the view of Professor Risdon that the death was attributable to the widespread, albeit relatively early, bronchopneumonia and that, while early bronchopneumonia would rarely be a cause of death in a healthy child, it had proved fatal in the case of a child with severe debility, dehydration and poor nutrition. He observed that it was clear that Perrin had suffered severe dehydration during the course of the last few days of his life. He continued as follows:

“In assessing the cause of Perrin’s poor growth prior to his fatal illness, it is clear that, even when in hospital and when being given adequate (or more than adequate) nutritional intake, Perrin’s growth was relatively slow. As noted by Dr Ward, it is highly likely that Perrin was a child for whom the normal growth line would have been below the 0.4th centile. This would certainly be compatible with the growth pattern observed and, in particular, would fit with Perrin’s overall small size (i.e. a small head size and relatively short length). Thus, although his growth was a continuing cause of anxiety, and his parents were unreliable in attending arranged appointments, I do not believe that there is any good evidence of significant malnutrition as a consequence of inappropriate, or inadequate, parental care over the period from Perrin’s discharge from hospital in April until his death in July …

In summary, I feel that this little boy died of bronchopneumonia and circulatory collapse as a consequence of severe dehydration from diarrhoea and vomiting in the 48 hours prior to his death. His parents clearly failed to recognise the severity of his illness and took no action, despite the fact that other parents seeing him only briefly during the course of that day had expressed great concern about the severity of his illness.

From the description given, it would seem highly likely that, had medical attention been sought at midday on 16 July (approximately 10 hours before his final collapse), the dehydration could have been treated and his collapse and death prevented. The lack of action by Perrin’s mother and her partner during this final 10 hours of Perrin’s life thus, clearly, contributed to the fatal outcome of his illness.”

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:

(a)

A negative duty, namely a duty not by its agents intentionally to take a person’s life save in the circumstances specified in the article. The facts in McCann v UK (1995) 21 EHRR 97, namely the fatal shooting by soldiers of suspected terrorists in Gibraltar, therefore gave rise to a breach of this duty in that none of the specified circumstances existed.

(b)

A positive duty, namely to take all reasonable steps to protect a person’s right to life under the article. In some situations this duty (“the protective duty”) requires the state to do more than effectively to operate a criminal justice system designed to deter the taking of life. One example is that the state is required to take all reasonable care to protect the life of a person involuntarily in its custody: per Lord Bingham of Cornhill in R (Amin) SS Home Dept [2004] 1 AC 653 at [30]. Another example is that the state is required to seek to protect a person from death as a result of incompetent medical treatment or care by its effective operation of a system of professional and other regulation: Calvelli v Italy, ECHR, 17 January 2002, 32967/96 at [49].

(c)

A second positive duty, collateral to the first, namely the investigative duty. Article 2 requires the state to furnish an appropriate investigation into the cause of a death which has been, or may have been, caused or contributed to whether by a violation of such domestic laws, criminal and civil, as protect the right to life or by a breach of the state’s protective duty under Article 2: see Edwards v UK (2002) 35 EHRR 487 at [69]. In R (Khan) v SS Health [2004] 1 WLR 971 at [67(3)] the Court of Appeal observed:

“The procedural obligation introduced by article 2 has three interlocking aims: to minimise the risk of future like deaths; to give the beginnings of justice to the bereaved; and to assuage the anxieties of the public.”

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:

(a)

the housing authority and the police knew that Mr Reid was extremely violent;

(b)

the police arrested him for attempting to slash the face of the applicant father;

(c)

the magistrates convicted him of using threatening words and behaviour towards the deceased and the father;

(d)

he told the housing authority that, if he was evicted from his home, he would kill the father;

(e)

later he told the authority that he would resolve his problems with the deceased by himself;

(f)

the police recorded that he had the potential to kill;

(g)

the police and the authority were aware of his threat to get even with anyone who gave evidence against him in the possession proceedings brought against him by the authority;

(h)

the deceased signed a witness statement on behalf of the authority in those proceedings;

(i)

on the day of the killing the authority allegedly told the deceased to be on his guard;

(j)

that evening the deceased’s father made a complaint to the police, who investigated it and verified that Mr Reid had been outside the family home; and

(k)

later that evening Mr Reid stabbed the deceased to death in the street.

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:

(a)

section 17 of the Act of 1989;

(b)

paragraph 7(a)(i) of schedule 2 to the Act;

(c)

Article 8 of the Convention of 1950, as interpreted by the European Court, for example in P, C and S v UK [2002] 2 FLR 631 at [113]; and

(d)

Re C and B (Care Order: Future Harm) [2001] 1 FLR 611 at [31], per Hale L.J. (as she then was).

See also, although it does not have the force of law, Article 9 of the U.N. Convention on the Rights of the Child 1989.

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

(a)

a health visitor managed to see him on 27 occasions;

(b)

Ms Sobey of CIT made, within the compass of 50 days, 47 successful visits to the home, i.e. visits at which she gained admission to it and saw the children; and

(c)

Ms Capron and family support workers made, by my calculation, 23 successful such visits.

I cannot presently recollect having heard a case in which support for a family in the community by child protection agencies was as intensive as was that provided for this family.

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:-

(a)

Plymouth had extensive knowledge of the family;

(b)

the mother was a known drug user;

(c)

in 1995 she had allowed her first child to swallow Methadone and had been convicted in that regard;

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

(e)

Mr McAndrew was also a drug user and was the subject of unresolved allegations of sexual abuse;

(f)

Mr Bateman considered that by February 2002 there were sufficient grounds upon which to apply for an interim care order;

(g)

the mother had a poor record in obtaining medical assistance for Perrin and repeatedly missed appointments with medical and other professionals;

(h)

there was evidence that she was failing to cope;

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

(l)

Perrin was not seen by a health visitor after 25 June although visits were supposed to take place weekly.

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:

(a)

The mother had cared for F and R throughout their lives, i.e. for five and four years, and, notwithstanding frequent concerns about the quality of her care of them, there was no suggestion that their lives were ever at risk.

(b)

There was constant concern about Perrin’s poor weight gain. But there was nothing to lead Plymouth (or the health visitors) to interpret it as putting his life at real and immediate risk; and indeed it was not the cause of his death. In this regard it is relevant that:

(i)

Perrin was congenitally small;

(ii)

R’s weight had increased from the same very low level during the first year of her life to a satisfactory level thereafter;

(iii)

even in hospital Perrin’s weight had made only a modest gain and it was Dr Ward’s opinion that it would be only in the absence of further modest weight gain following his discharge that it might be better for Perrin to be taken into foster care;

(iv)

on her last visit a week prior to his death Ms Capron noted that Perrin was eating very well and was smiling and responsive; and

(v)

Professor Fleming found no evidence of significant malnutrition caused by inadequate parental care between April and July 2002.

(c)

Apart from in relation to his weight, there was no history which gave rise to significant alarm about Perrin’s health or safety, let alone in terms of a threat to his life.

(d)

Perrin died because of events which occurred during only the two final days of his life, when he suffered severe dehydration, was not presented for medical treatment and so was unable to repel the lethal effect of bronchopneumonia.

(e)

Although the mother had a history of wilful reluctance to present a child for medical treatment when she thought that the child was insufficiently unwell to warrant doing so, there was in the history no basis for fearing that she and Mr McAndrew would each fail to do so if a child showed obvious signs of being seriously unwell.

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)].

(b)

For example a death in custody is at the serious end of the spectrum: see Amin at [31].

(c)

Whatever its form, the investigation must meet minimum standards: see Amin at [32] and [25]. Thus the investigation must be:

(i)

independent;

(ii)

effective;

(iii)

reasonably prompt;

(iv)

open to a sufficient element of public scrutiny; and

(v)

open to appropriate participation by the next of kin.

(d)

In the absence of criminal proceedings or a public enquiry a coroner’s inquest is the means by which the state ordinarily discharges the duty: see Middleton at [20].

(e)

Criminal proceedings are unlikely to be the means of its discharge if the defendant pleads guilty: see Middleton at [30].

(f)

Different enquiries can be taken in combination as being the means of discharge: see Amin at [46].

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.

Friday, 27th May 2005

MR JUSTICE WILSON: The judgment that I give on this application is the judgment which I have written and signed and which my clerk has disseminated. I was extremely grateful to Mr Hough for writing to me and pointing out a typographical error, which of course has been corrected, and suggesting that somewhere in the judgment I should aver to the need for the precise terms of the order to be considered. So, if counsel would be kind enough to go to the end of paragraph 86 they will see a very anodyne sentence namely, "Accordingly I propose to quash his decision in terms upon which I invite counsel to make submissions."

So, Mr Hough, you are appearing for the coroner this afternoon?

MR HOUGH: My Lord, I am. The parties have had time outside court to discuss a suggested order and we have the temerity to suggest an order in these terms to your Lordship. The order is in two parts; first a declaration and then a quashing order. A declaration that on the available evidence the investigative duty under Article 2 ECHR is not engaged, and a consequential quashing order that the coroner's ruling that on the available evidence the investigative duty under Article 2 ECHR is engaged and is hereby quashed.

MR JUSTICE WILSON: "... is engaged and that his court should be the means of its discharge"? That was his ruling, after all.

MR HOUGH: My Lord, yes. May I just explain what the two concerns are that the coroner wants to meet by this order before any further discussion is noted.

MR JUSTICE WILSON: Certainly.

MR HOUGH: The first concern is that the order is so worded that he is able to call evidence as to the historical background, because obviously it would be meaningless to a jury to enquire into two days without any historical background at all. The second concern is that it is not so worded that he is precluded from re-examining this question in the unlikely event that new evidence comes to light, because obviously that would be fettering his discretion unreasonably. So that is why the order has been put in those terms. Subject to those two concerns, the coroner is happy to have the order amended as your Lordship has just suggested.

MR JUSTICE WILSON: So can you run your second order past me again?

MR HOUGH: My Lord, yes. "The coroner's ruling that on the available evidence the investigative duty under Article 2 ECHR is engaged, is hereby quashed."

MR JUSTICE WILSON: I was suggesting: "is engaged and that it was" --

MR HOUGH: -- "and that his court was the means of its discharge."

MR JUSTICE WILSON: "And that his court was the means of its discharge" -- "and that accordingly his court was the means of its discharge, is hereby quashed." Would you be content with that Mr Hough?

MR HOUGH: My Lord, I would.

MR JUSTICE WILSON: Miss Ellis?

MISS ELLIS: My Lord, I have no further observations or submissions to make on the terms of the order. As my learned friend pointed out, we had agreed and discussed that outside of court.

MR JUSTICE WILSON: Good. Shall I turn to Miss Brooks? I have the name of the advocate for the Department down.

MISS ELLIS: My Lord, this is the lady who sits behind me.

MR JUSTICE WILSON: I see. She is not expecting to say anything?

MISS ELLIS: No. She has come as an interested party, my Lord.

MR JUSTICE WILSON: I see. I had her down as an advocate.

MISS ELLIS: My Lord, we put her name down so you knew all of the parties present in court.

MR JUSTICE WILSON: Right. I am perfectly happy with that wording which correctly reflects my judgment. Thank you.

Now, Miss Ellis, are there any other matters? I say that because I do not know whether Mr Hough copied his letter to my clerk to you? I hope he did.

MISS ELLIS: No, my Lord, I have not --

MR JUSTICE WILSON: He did not. Mr Hough, I think you should have.

MR HOUGH: My Lord, I have shown the letter to my learned friend and I have informed my learned friend of its terms.

MR JUSTICE WILSON: Mr Hough has advised me that you are aspiring to have me order the coroner to pay the costs?

MISS ELLIS: Indeed, my Lord, and if I could address you on that?

MR JUSTICE WILSON: Please.

MISS ELLIS: My Lord, it is my primary submission that costs should follow the event. Given that, my Lord, you were in favour of the claimant, finding that the coroner had erred in law, I would respectfully ask you to order that the Coroner's Office do pay our costs of the judicial review, and ancillary thereto, of that hearing. If I could look first and foremost at the background of the hearings that have taken place in these proceedings.

First and foremost we have the hearing on 2nd and 3rd June of last year. At this point, because, as I understand it, and do excuse me -- I am sure my learned friend will correct me if I am wrong, coming new to this case -- it is my understanding that at that point Article 2 was not investigated because the GP in the case was not ready to proceed. So, accordingly, the second limb of the argument was looked into.

MR JUSTICE WILSON: That is an Article 2 related argument.

MISS ELLIS: Indeed, and we did assert our stance at that point that we did not feel, and of course still do not, and your Lordship concurs, that Article 2 had ever been invoked or triggered.

Following that hearing in June, the principal solicitor for Plymouth City Council wrote to the coroner and asked him to review the decision that was made on that occasion and gave him an opportunity, therefore, as I said, to review that decision and to come on board with our way of thinking.

That, unfortunately, was not embraced and another hearing followed on 13th July. Following that hearing the coroner gave judgment saying that Article 2 had been engaged. It is noted in your judgment, my Lord, that all the coroner had effectively done is reiterate his judgment from the previous June hearing. His position had stayed the same and ours had stayed --

MR JUSTICE WILSON: I do not follow that last submission, Miss Ellis. He was dealing with what I have called the first determination, even though he dealt with it second.

MISS ELLIS: Yes.

MR JUSTICE WILSON: He did more than to reiterate his June determination. He had to deal with engagement, with which he had not dealt in June.

MISS ELLIS: Above and beyond the engagement point, my Lord, the substance remained the same and his position remained the same. That is the point I am trying to drive home. His position remained the same. Post the July hearing, again the solicitors dealing with this case afford an opportunity for the coroner to review his decision. All of the protocol documents, skeletons, chronology, were sent in advance, together with a letter asking him again to review his decision and they afforded him with 14 days in which to do so. Again, this was unfortunately not embraced and the proceedings pressed on.

The September hearing followed, as did the most recent hearing, of course, with which you were concerned, my Lord, 14th and 15th February this year.

Our position throughout has been that Article 2 was not triggered. We have no option, it is my submission, my Lord, but to fight that point, because in the event that we did not then the coroner would have proceeded with a six week inquest which we say would have been appalling in terms of costs, consequences for the City Council. The coroner's position throughout -- I would envisage that you will be addressed, my Lord, that he was merely seeking guidance and assistance -- I would rebuff that suggestion. My Lord, it is my submission that actually he has actively defended this case.

If we bear in mind all of the documents that have been filed on behalf of the coroner, there have been skeleton arguments resisting our application, there have been bundles of authority, and he has gone above and beyond the role of adopting a neutral stance. He has made himself an active part of the litigation.

If I could refer you, my Lord, to your own decision, and I have marked the previous draft one, I think there are some telling comments made by yourself. It starts about circa paragraph 77 and 78 where, my Lord, you conclude that Mr Storey, who then appeared for Plymouth City Council, was correct in the submissions he made.

MR JUSTICE WILSON: I said that those were submissions I would look at even though they went wider than the narrow question which I thought was the only question directly raised.

MISS ELLIS: To concern ourselves with. Looking at paragraph 82, my Lord, I think is the telling part where you say that the coroner lost sight of the test which he had resolved to apply. In 86, my Lord, you go on to say that he erred in law. Referencing those points to the judgment of Davies v Birmingham Deputy Coroner -- I hope a copy was passed up by my learned friend, he did pass a copy to me just outside of court --

MR JUSTICE WILSON: Yes.

MISS ELLIS: At a glance, my Lord, I would say that even from the summary of that case it says that a no order for costs may usually be the more usual order to make. But in the event that our application has been contested and that the coroner makes himself an active part of the litigation, or that he is wrong in law, then those, of course, are discretions you can bear in mind, my Lord, to change from that usual stance if I can put it like that.

I would say, my Lord, and it is my submission, that all of those points are quite telling that he did contest the application and that he certainly did make himself an active part of the litigation.

Moving, finally, on to public policy and also looking at the pot that is responsible for paying all of these costs ultimately --

MR JUSTICE WILSON: Well quite.

MISS ELLIS: It is under the same umbrella, if I can put it like that, and there are several pots thereunder.

My Lord, I say it is extremely important, and if public policy is a point which concerns you, that this case should have been mooted because of the public policy considerations, I would say to that, my Lord, then there are public policy considerations in having our costs paid, because bearing the burden of those costs channels funds away from both instructing counsel and agents to proceed with all these matters at court.

MR JUSTICE WILSON: Let me understand the reality behind this application and the reality behind any order for costs which at the end of this I might make. I thought that the coroner was reimbursed by the local authority in respect of his costs?

MISS ELLIS: My Lord, my understanding of how it works in practice is that each department is allocated a budget. So the legal department having to pay their costs out of their budget will, of course, severely impinge their funds in the following year. The coroner does not have a budget per se, although I understand that is currently under review and there is going to be some reshuffling in the organisation. The local authority meets his reasonable costs. But awarding costs in favour of Plymouth City Council, effectively the legal department therein, that is going to keep intact their budget and enable them to put funds into the areas which they need to channel it.

MR JUSTICE WILSON: So, Miss Ellis, you concede that, were I to make an order for costs against the coroner, the coroner would be indemnified by Plymouth City Council?

MISS ELLIS: But not out of the legal pot.

MR JUSTICE WILSON: No. The coroner would be indemnified by Plymouth City Council.

MISS ELLIS: Yes.

MR JUSTICE WILSON: It is a question of which department --

MISS ELLIS: Indeed.

MR JUSTICE WILSON: -- in Plymouth bears the costs.

MISS ELLIS: Indeed. I would say about those costs, that ours -- although our papers are currently with the cost assessor, my Lord -- are extremely modest in comparison to those of the coroner. We have tried to do somewhat of a calculation of roughly what we anticipate our costs to be in this matter. My Lord, as rough as a benchmark as I can give you, having looked at counsel's fee notes and working with my solicitor who has been on this case for the majority of the time, we would guesstimate, I must stress a guesstimate, of no more than £40,000.

MR JUSTICE WILSON: You are not talking about the hearings in Plymouth, you are talking about the judicial review?

MISS ELLIS: Here, yes.

MR JUSTICE WILSON: Has Mr Hough given you an estimate of the coroner's costs?

MISS ELLIS: No, my Lord, no. Given that the solicitor charges out at no more than £76 an hour, and the coroner had instructed Withers and it is thought that their chargeout rate is some £360 plus pounds an hour, we anticipate theirs being far larger than ours.

MR JUSTICE WILSON: There was no leading counsel, Miss Ellis, on his side.

MISS ELLIS: Not for the judicial review, no.

MR JUSTICE WILSON: That is what we are talking about?

MISS ELLIS: Yes, yes.

MR JUSTICE WILSON: Yes.

MISS ELLIS: My Lord, those are my submissions on costs.

MR JUSTICE WILSON: Thank you, Miss Ellis. Mr Hough?

MR HOUGH: My Lord, in the circumstances this is an extraordinary application and it is firmly resisted. It is an application of importance to coroners in general and for this court in particular. The coroner's submissions are threefold. First of all, no costs order should be made against him because he has attended these proceedings to assist the court from a stance of neutrality which he has always made clear. Second, the coroner has acted reasonably and provided assistance for the court on specialist points of law and his assistance has, in practice, proven valuable. Thirdly, it would be absurd and unfortunate for Plymouth City Council to claim costs against the coroner because of the statutory indemnity to which your Lordship has already referred.

MR JUSTICE WILSON: This is not a section 27A indemnity, I assume, because Plymouth never said in advance that they would indemnify him in respect of these costs. This, I suppose, comes ordinarily under section 27 whereby the coroner, every 4 months, lays an account of his expenditure before the local authority and seeks reimbursement? Am I right?

MISS ELLIS: Yes, my Lord, yes, that is our understanding.

MR JUSTICE WILSON: Mr Hough, you are aware of section 27A inserted into the Act by the Act of 1999?

MR HOUGH: My Lord, I am looking at it at the moment.

MR JUSTICE WILSON: It is subsection (2) that catches the eye. This indemnity that looks so appealing for you in section 27A(1) only applies if and to the extent that the relevant council agrees in advance to indemnify him, and I think I would have heard by now if it had done so.

MR HOUGH: My Lord, there has been extensive correspondence which we would construe as indicating that the council agreed to indemnify him in respect of his reasonable costs. I am content with the concession that there will be an indemnity provided without arguing over on what basis --

MR JUSTICE WILSON: Yes.

MR HOUGH: -- because our construction, of some of the correspondence at least, is that it is such an agreement.

My Lord, dealing, first, with the point of neutrality. The position of coroners as regards costs applications is considered extensively in Davies. It reviewed all the important existing authority. The structure of the judgment was, first of all, to look at the general procedure where an application for costs is made against a tribunal or inferior court which appears before this court. Brooke LJ said at paragraph 22, which is on page 2747:

"Some tribunals exercise a highly specialist jurisdiction, and it often happened that such a tribunal might wish to be represented before the court to explain matters relating to its jurisdiction or procedure or to draw the court's attention to relevant decisions overlooked by the parties without in any away involving itself in the lis or contesting the application that was being made."

Having further reviewed the case law, Brooke LJ at paragraph 27, on the following page, said:

"This survey of the case law reveals that the established practice of the High Court for many years was to make no order for costs against an inferior court or tribunal unless it behaved improperly in a flagrant way or unless it appeared at the hearing as a party to the lis to contest the application being made, or declined unreasonably to sign a draft consent order which might obviate the costs of an unnecessary hearing."

Brooke LJ then surveyed the line of coronial authority and came to the conclusion that a similar approach applied at paragraph 43 on page 2753.

MR JUSTICE WILSON: Yes.

MR HOUGH: His Lordship said, second sentence:

"In my experience it has always been perfectly possible for counsel instructed by a tribunal to take a neutral role in an effort to assist the court on relevant aspects of law and procedure, and the cases in Lord Goddard CJ's and Lord Parker CJ's time made a clear distinction between the situations in which the inferior court or tribunal played an active part in the lis by arguing the correctness of the decision under challenge, and those in which it did not."

Then, finally, at paragraph 47, his Lordship summed up the principles to be applied, and I would invite your Lordship to read the whole of paragraph 47.

MR JUSTICE WILSON: Is he saying that these are the principles which still apply notwithstanding Touche?

MR HOUGH: My Lord, yes, he does say that but he adds, and this is (4) in paragraph 47:

"There are, however, a number of important considerations which might tend to make the courts exercise their discretion in a different way today..."

Those considerations have already been set out. Those are really focused on cases where it is a private litigant without external funding.

MR JUSTICE WILSON: Mr Hough, of course, you have the difficulty of not having been the advocate in February, so you do not quite know the degree of energy or otherwise with which your predecessor pressed his points.

MR HOUGH: My Lord, no, but perhaps, my Lord, I can stress a couple of points before going to the facts of this case.

May I stress that the coroner is entitled to give the court assistance on points of law and the coroner is entitled to explain the reasoning of his decision without departing from his stance of neutrality. That is apparent from the passages that I have read.

Here the first point to emphasise is that in both the permission hearing and in an application before that, the coroner stressed that he would not oppose the grant of permission. Secondly, he made an early witness statement stating that he was neutral as regards the outcome and that he welcomed the guidance of the court on what he regarded as a difficult point.

MR JUSTICE WILSON: Can I look at that?

MR HOUGH: It was the acknowledgment of service. It is a witness statement which follows on from my acknowledgment of service in my bundle.

MR JUSTICE WILSON: Let me try and locate that. (Pause) Yes, I have that now. Do you have it too Mr Hough?

MR HOUGH: Does your Lordship have a witness statement running to six paragraphs?

MR JUSTICE WILSON: No, I do not think I do. He wants leave to file a short affidavit explaining his position, so he did that, did he, Mr Hough?

MR HOUGH: My Lord, what he did was to serve a short grounds document with a skeleton argument. It may be helpful to look at that skeleton argument which I hope your Lordship can lay your hands on.

MR JUSTICE WILSON: "Statement of grounds for defending the claim", is that what you would have me look at?

MR HOUGH: Yes, my Lord, and there is a skeleton argument attached to that.

MR JUSTICE WILSON: "Detailed grounds for defending the claim." Are you happy for me to look at that or is that not quite what you had in mind?

MR HOUGH: My Lord, there is a skeleton argument submitted on behalf of the defendant.

MR JUSTICE WILSON: There definitely was.

MR HOUGH: My Lord, I will have your Lordship look at paragraph 5 of that skeleton argument.

MR JUSTICE WILSON: Mr Hoskins' skeleton argument, right. Yes, neutral so far as permission was concerned.

MR HOUGH: Neutral so far as permission, welcomes the guidance this case will give, purpose is to assist the court by identifying those passages in the authorities which are of particular relevance, and to highlight those passages in the coroner's reasoning which explain the reasons for his decision.

MR JUSTICE WILSON: Can you find a statement that he was neutral overall, Mr Hough?

MR HOUGH: My Lord, the statement for the purpose of the skeleton argument is solely to identify passages in the authorities and to set out the passages from the decision which make it clear that the coroner is maintaining the stance of neutrality.

The supplementary skeleton argument which Mr Hoskins put in similarly simply sought to set out the effect of decisions such as Goodson and did not anywhere argue that the decision was correct and that he was defending the application assertively.

The coroner took the stance of providing assistance on points of law and setting out what his reasoning was, but in the final paragraph of the skeleton argument the coroner does nothing more than to say that in the light of the authorities referred to, the coroner considered it to be his duty to hold an inquest which included evidence relating to the involvement of the Child Protection Agencies. The skeleton argument did not anywhere say that the correctness of that decision was being assertively supported, rather the coroner simply said that he would welcome the assistance of the court.

MR JUSTICE WILSON: I wonder whether you would regard this as too fast a ball, too unfair a question. If I am to survey the degree of activity brought to bear by the coroner in the resistance of this claim, I think it may be fair for me to ask whether you have an application this afternoon, namely for permission to appeal to the Court of Appeal?

MR HOUGH: My Lord, I have instructions not to make that application.

MR JUSTICE WILSON: I see.

MR HOUGH: I have taken careful instructions on that point and we do not seek permission because your Lordship is assisted on what your Lordship recognised was a narrow point on the facts of this case. Your Lordship accepted that the coroner impeccably stated the law, but incorrectly applied that law. The coroner accepts your Lordship's judgment and will conduct his inquest in accordance with that judgment.

MR JUSTICE WILSON: I see.

MR HOUGH: Your Lordship, this is an important point generally for coroners who often need to appear to assist on the law, as Brooke LJ said in Davies at paragraph 43, and also to set out relevant facts and explain their reasoning. A coroner often needs to explain the reasoning behind a ruling, or even what verdicts he left to a jury, because sometimes the decision itself does not make itself clear. In this case it did and the coroner was simply able to say to the court that it spoke for itself. But the coroner did nothing more than to set out what the decision was and also to draw your Lordship's attention to relevant evidence, which Mr Hoskins did in bullet point form.

My Lord, on the second point which we argue, the coroner has acted reasonably in providing assistance to the court. He arrived at what he recognises was a difficult decision after the expert assistance of Mr McFarlane, his counsel. The coroner has provided assistance to the court on specialist points of law, and this is not merely a technical point in this case, because some of Plymouth City Council's submissions advanced in the original skeleton argument were firmly rejected by your Lordship. For example, in the first skeleton argument of Plymouth City Council, paragraph 6, it was argued that an Article 2 investigation is only required where it is possible to remedy a systemic defect. It was then argued that there was no systemic defect in the general care systems.

MR JUSTICE WILSON: I remember that.

MR HOUGH: Your Lordship, at paragraph 65 of the judgment that your Lordship has handed down, implicitly rejected that argument. It was also argued that an Article 2 investigation is not required where there is only an arguable breach of the Article 2 (inaudible) obligation which suggested that something closer to a probable breach of that obligation was required. Your Lordship, at paragraph 66 of the judgment, implicitly rejected that argument.

If the coroner had not been present to assist on these points, the coroner certainly could not have been sure at the outset that these points would have been clarified before the court. So, in addressing these points of law, the coroner was not only being reasonable, but on some important issues he was assisting your Lordship on points where you held against the City Council.

So, my Lord, the assistance provided by the coroner was analogous to that of an amicus for a great part of the submissions that he made, providing your Lordship with assistance on an area of law which is highly specialised and is highly technical and on which there have been a plethora of recent decisions of this court and the Court of Appeal.

The third argument I raise is that on the particular circumstances of this case no purpose will be served by the order. As has already been indicated, Plymouth City Council indemnify the coroner for costs reasonably incurred. The costs in this case plainly were reasonably incurred, and I do not think it is suggested by my learned friend that the coroner acted unreasonably in attending the hearings at all, after all the coroner was invited to attend by order of Silber J of 10th September this year, and at the permission hearing Ouseley J was asked to give an indication that the coroner's attendance and approach were reasonable and he gave that indication.

The effect of the order in these circumstances would be to make Plymouth County Council Central Funds pay Plymouth County Council Social Services budget. My Lord, this would result in probable detailed assessment proceedings and further costs involved in those proceedings. Under both the overriding objective of the CPR, and under commonsense, it would be a gigantically pointless exercise for the resources of this court to be used to assess costs moving within one unincorporated association, one local authority.

My Lord, one wonders, rhetorically, what the chargepayers of Plymouth would think of their money being spent on costs draftsmen arguing over precisely how much should go from one department to the other in the Supreme Court Costs Office.

My Lord, for those reasons the coroner says that this case is one where the court should not make an order as to costs, either under ordinary principles or under the particular facts of this case.

My Lord, the coroner having stated that he adopted a neutral position, it would be unfair to order him to pay any costs unless it is held that that indication he gave was either superseded or was disingenuous. In my submission it was not. The coroner performed exactly the exercise which Brooke LJ envisaged. My Lord, there is a real danger, if coroners are made to pay costs in these circumstances, that they will be presented in terrorem by other parties and the coroners will refrain from providing exactly the assistance on points of law which, in my submission, has assisted the court in this case.

MR JUSTICE WILSON: Well, they get an indemnity, Mr Hough, so they should not feel too terrorised.

MR HOUGH: My Lord, they may not feel too terrorised where you have a case with all the funds moving within one body, but the coroners are under increasing pressure as to their budgets and some cases in this court involve very considerable costs run up by both private litigants and by institutions of central government. It would be very unfortunate if coroners felt themselves even somewhat terrorised.

Unless I can assist --

MR JUSTICE WILSON: Yes. Can you run past me again what you said that my colleague Ouseley J had said? I rather got the impression that you were saying that the coroner had procured his blessing for a personified role with an advocate at the hearing.

MR HOUGH: My Lord, my instructions are that the coroner asked that -- there was some dispute at that time about whether the coroner was incurring his costs reasonably as at that moment. Because of his concern that he might face a personal liability, the coroner's advocate asked Ouseley J to indicate whether his attendance to provide the court with assistance was a reasonable incurring of costs. Ouseley J indicated that it was. Those are my instructions.

MR JUSTICE WILSON: Thank you, Mr Hough. Miss Ellis?

MISS ELLIS: My Lord, if I can just mention two points to you, and that is that you did correctly identify in the skeleton you were pointed towards, which is the skeleton argument submitted on behalf of the defendant, where the neutrality was allegedly stated, my Lord -- it is my submission that you correctly identified that that neutrality is in connection solely with permission to apply for judicial review and not the overall scheme of the judicial review.

Secondly, my Lord, if I can assist you any further on the implications and ramifications of the consequences of the monies being moved then I am happy to do so -- if I can assist you any further, because I appreciate it is a complex structure within every local authority and this one is no exception there.

I have taken detailed instructions on this point because at first sight it may seem artificial in a way, and, my Lord, it is my submission that that is not the case.

Just to recap, my Lord, it is my submission that it would severely impinge upon the legal services budget and restrict, certainly, their ability to conduct their role effectively and properly. This case is something out of the ordinary, it is not run of the mill, and it is certainly -- my instructing solicitor has never before been involved in such a hearing.

The local authority do, of course, continue to need to put these cases before the court. The practical reality of that is that they are not either going to be able to do so, or are going to have to do so with far junior counsel where senior counsel would be more appropriate.

In summary, my Lord, I would say that the law was there. We read it and we interpreted it and it was the coroner who erred on the law. Accordingly we say that the costs should follow the event in the normal way, albeit that it is sometimes unusual to do so in the judicial review cases. But I would say the facts are there, as I addressed you previously, my Lord, to depart from the usual stance.

My Lord, those are my submissions, unless I can assist you any further.

MR JUSTICE WILSON: Well, you have assisted me a lot, Miss Ellis, thank you very much.