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Re S (Children) [2016] EWCA Civ 1020

Successful appeal by a mother in care proceedings following a finding of fact being made against her in circumstances in which no party sought that finding, no such allegation was put to the mother in oral evidence and it was not addressed by counsel for any party in submissions.

At first instance, the judge found that, in respect of bruising found on the son (MS) of the appellant mother:

"The injuries were inflicted by an adult striking [MS] on the side of his ear with an open hand.  The court is not able to identify the adult save to say that it was either MH ("the intervener") or the mother."

The relevant findings sought by the local authority had been that (a) the stepfather caused MS's injury, (b) the mother was aware and (c) the mother failed to inform the local authority or the school or to protect MS.

A number of case management orders had been made, each of which recorded the above findings sought as the key issues. The written evidence directed was focussed on those issues. The oral evidence at the hearing was directed to the same: at no stage did the local authority, father, children's guardian or intervener cross-examine the mother on the basis that she was or might be responsible for causing MS's injury. At no stage during the trial did the judge indicate that the local authority should seek any different finding against the mother. In its oral closing submissions, the local authority's position remained consistent – similarly, no other party invited the court to find the mother responsible or that the quality of evidence rendered the identity of the perpetrator uncertain.

Following the oral submissions of the local authority, the mother and the father, the judge raised with the intervener the possibility of including the mother in the pool of perpetrators. Immediately on completion of the intervener's oral submissions, counsel for the mother asserted that this change of approach would not afford the mother a fair trial. The judge sought no further assistance. Oral submissions were completed. The judge reserved judgment.

Judgment

In his draft judgment, the judge made the finding as set out above. No reference was made to the mother's submissions that the mother had not been afforded a fair trial. At the handing down of judgment, the mother's counsel did not specifically ask for further clarification or amplification on the failure to address the submissions on the perceived procedural unfairness of the hearing – but she did include these in the proposed grounds of appeal presented in support of an application for permission to appeal. That application was rejected.

Law

On appeal, the Court of Appeal reminded itself of: the court's ability, in certain circumstances, to make findings not sought by the local authority; the need for oral argument on strike-out applications in civil cases; and, the fact that a court must "adopt a realistic approach of what is expected of an advocate… in the heat of the moment in court", at [37], citing Lord Neuberger in Labroucage v Frey Practice Note [2012] EWCA Civ 881, [2012] 1 WLR 3160, at [31].

On the mother's behalf, it was submitted the trial was flawed by serious procedural irregularity and that merely recalling her to the witness box and "putting" to her the allegation would have been insufficient. Against her, it was argued that, whilst the other parties' cases at first instance was not that such a finding should be made against the mother, from the point at which the judge determined that he would place no weight on particular disclosures made by MS, the finding was both foreseeable and logical. Additionally, it was said that, were she to have been put on notice, there would have been no evidential or other significant difference in the conduct of the trial.

Outcome

King LJ, giving the lead judgment, noted that the mother had been denied a fair trial: everyone is entitled to know the case they face. Also, had she known that she was at risk of a finding, it is highly likely that her legal team would have presented her case differently. In this case, the procedural error was so serious that "the question whether the outcome would have been the same and whether evidence would be broadly similar is really beside the point" (at [48]). As such, the perpetration finding was set aside and remitted to be re-heard – the non-accidental finding, however, could safely remain in place.

Summary by Alex Laing, barrister, Coram Chambers

___________________

B4/2016/1893
Neutral Citation Number: [2016] EWCA Civ 1020

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEICESTER COUNTY COURT
(HIS HONOUR JUDGE BELLAMY)

Royal Courts of Justice
Strand
London, WC2

Thursday, 21st July 2016
 
B E F O R E:

LORD JUSTICE LONGMORE
 
LORD JUSTICE VOS
 
LADY JUSTICE KING

 
IN THE MATTER OF 

S (CHILDREN) 
 
(Digital Audio Transcript of
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Miss L Meyer QC & Ms N Mansfield (instructed by Dodds Solicitors) appeared on behalf of the Applicant
Miss B Gilead (instructed by Leicester City Legal) appeared on behalf of the Respondent
 
J U D G M E N T
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1. LADY JUSTICE KING:  This is an appeal against an order made by His Honour Judge Bellamy in the Family Court at Leicester on 5 May 2016.  The order was made following a finding of fact hearing, the subject matter of which was bruising which had been found on the son of the appellant mother ("the mother") MS, a boy born 29 June 2006.  The finding made was:

"The injuries were inflicted by an adult striking [MS] on the side of his ear with an open hand.  The court is not able to identify the adult save to say that it was either MH ("the intervenor") or the mother."

2. Permission having been granted by Keehan J, the mother appeals against the finding which identified her as a possible perpetrator of the injury sustained by MS.

3. The basis of the appeal is that the local authority has throughout the case sought a finding against the stepfather of MS (the intervener) alone and at no stage was the case presented to the court on the basis that the mother was either the perpetrator, or a possible perpetrator, of the violence that the judge subsequently found to have been inflicted upon MS.

4. The issue before this court therefore is whether, notwithstanding that no party sought the finding made, that no allegation had been put to the mother in oral evidence or dealt with bycounsel in their submissions, the judge was nevertheless entitled to find that mother was within the pool of two possible perpetrators.

The Facts
5. The appellant is the mother of four children, three girls and a boy, ranging in age from 6 to 10.  Their father is the second respondent.  Their stepfather, NH, was the intervener in the finding of the fact hearing although has not appeared today at this hearing.  The court was concerned only with an injury sustained by MS which he, (MS), said had been inflicted upon him by the intervener.

6. There is a long and unhappy history in relation to these children.  To date there have been heavily contested private law proceedings.  As is sometimes the case, the inability of the parents to prioritise their children over their animosity to each other reach such a pitch that care proceedings were instigated by Leicester County Council ("the local authority") on 17 August 2015.  There followed contested interim care order hearings, an earlier fact finding hearing within the care proceedings before, most recently, the hearing with which this court is concerned.

7. It is not necessary for the purposes of this appeal to rehearse the procedural history.  The relationship between the mother and father has been marked by a quite extraordinary level of hostility and both the mother and father have been the subject of criticism by various judges in various judgments.  All the judgments however differ from one with which this court is now concerned, they having centred around the behaviour and the relationship of the mother and father and the impact it has had upon their children.

8. The first finding of fact hearing took place over a period of five days between 28 and 30 September 2015 and the 2nd and 3 November 2015. The mother and father both sought various findings against the other.  The judge promulgated his judgment on 2 December 2015, a matter of couple of weeks before the events with which this court is concerned.

9. At the end of the hearing, in broad terms, the position was (as was confirmed by counsel today) that the mother, whatever her faults   and a number of those have been identified by the judge   is nevertheless a good mother who had not been violent to any of her children.  No doubt it was because of that prevailing view that the children had remained living at home with the mother throughout the care proceedings.

10. On 17 December 2015 the intervener collected MS from school.  When he arrived the Intervener was spoken to by MS's class teacher about MS having had money at school which is against the school rules.  The judge accepted the evidence of the teacher and also of a learning mentor who saw what then happened, namely that the intervener was aggressive and very angry with MS in their presence, pointing at him and calling him a liar. The judge recorded the evidence given that, in the face of the aggression and anger of the stepfather, "the colour had drained from [MS's] face".

11. The next morning, 18 December 2015, MS presented at school with an injury to and behind his right ear resulting in the school safeguarding procedures being activated, including MS being medically examined.

12. The judge was understandably critical of the way in which the matter was investigated that day, including about the way that MS was questioned and records of the events of the day were maintained.  Late that day MS said to a social worker that the intervener had caused the injury. This allegation led to a referral to the Police Child Abuse Investigation Unit and subsequently to the removal of the children from their mother's care.

13. The following day the police conducted an Achieving Best Evidence ("ABE") video recorded interview.  It is accepted by all that this interview, so far as process was concerned, did not on any level comply with best practice of such interviews.  In particular, but not exclusively, there was no pre planning and no social worker present during the course of the interview.

14. MS was clear however that his stepfather (the intervener) had hit him and also in respect of his mother's role in the events of that evening. He said, as was recorded in the judge's judgment at paragraph 49:

15. "MS having said that his stepfather had hit him was asked whether anyone else was in the house at the time.  He described his sister and his mother had been present.  He then goes on to say:  "My dad told my mum to go downstairs."  He then was asked: "Okay.  Where did he tell you that?  Once when he'd hit me.  Okay, so where was she before he told her to go downstairs?  Don't forget my mum said 'I'm leaving'.  My mum told my step dad 'don't hit him, just give him a last chance' but my dad just told her to go downstairs so she went downstairs yeah, then my dad hit me."

16. In the light of the dramatic turn of events since the finding of fact hearing that had taken place in November, the matter was immediately referred back to the same judge for a further case management hearing.

17. On 23rd December the judge made directions in preparation for what was to be a second finding of fact hearing, this time in respect of the injury to MS's ear. 

18. The local authority duly filed their proposed schedules of findings on 12th January 2016, whereby they sought the following:

1. On 18th December MS was medically examined and found to have found an injury to the back of his ear, namely an area of bruising petechial over his right ear, a red mark on the angle and mandible and right arm.

2.  The injuries to MS were caused by his stepfather hitting him with his hands to his head and a slipper to his body. 

3. The mother was aware that MS had been assaulted by NH and that he had sustained injuries as a result. 

4. The mother failed to inform the local authority or the school about the assault or the injury and had failed to protect MS.

19. Subsequent case management orders made by the judge, dated 13th January 2016, 22nd January 2016 and 10th March 2016 each recorded the key issues as being whether the child had been assaulted by his stepfather (the intervenor) and, if so, whether the mother had knowledge of the assault and failed to disclose it.  Written evidence put before the court was directed to these key issues.

20. The finding sought by the local authority as to the perpetrator of MS's injury remained unchanged prior to the finding of fact hearing.  At the commencement of the hearing the local authority notified the court and the parties that they no longer sought a finding with respect to the injury to MS's arm.  The oral evidence before the court was therefore directed to the same key issues identified in all the case management hearings save for the evidence relating to the arm.  This limited change of approach was reflected in an amended threshold document filed by the local authority and dated 20th April 2006. 

21. This case had therefore been subject to "tight" case management, with the keys issues identified at an early stage and the evidence filed directed to those issues. The trial was conducted on the same basis.  At no stage did the local authority, father, children's guardian or intervenor cross examine the mother on the basis that she was or might be responsible for injuring her child. 

22. The mother, for her part, ran a case that the injury was accidental and that due to defects in the social work investigation and the ABE interview no reliance could be placed on MS's disclosure.

23. Mr Verdon QC, on behalf of the father, submits that it was therefore "foreseeable" that, if contrary to her case, the judge found the injury to have been non accidental that there would inevitably be a risk that the judge would say that he could not decide which of the mother or the stepfather had caused injury.  I do not agree.  What the mother knew was that the case was and continued to be throughout, that if the injury was non accidental then the intervener was responsible.  Similarly, at no stage in the trial did the judge invite the local authority to explore or approach the case on the basis that mother should be regarded as a possible perpetrator of the children or, as the case progressed. Neither as he became more uneasy about the quality of the ABE interview and the reliability of MS's allegation did the judge put the parties on notice, at the conclusion of the local authority case, that a logical conclusion of excluding MS's allegations might be that he would be unable to find to the requisite standard of proof that the intervener was the perpetrator, with the consequential risk that the mother, having been in the house at the time the injury was inflicted, might be found to be a possible perpetrator.

24. In their oral closing submissions, the local authority continued to seek the findings as set out in the amended threshold document of 20 April 2016, that is to say that the intervenor was the perpetrator and the mother had known he had assaulted MS and had failed to protect him or to disclose what had happened.

25. The local authority did not invite the court to find that the mother was either responsible for the injury or that, having heard the evidence, she should now be included in the pool of possible perpetrators.  Similarly, no other party invited the court to find that the mother was responsible or, importantly, that the quality of the evidence that had come out during the course of the trial was now such that the identity of the perpetrator had become uncertain.

26. On the contrary, as Miss Begum, on behalf of the children told the court this morning, she had herself drawn the judge's attention to parts of the ABE interview which, in her submission, could only be the truth as they tied in with the medical evidence in a way such that a 9 year old boy could not possibly have anticipated, particularly given that the injury was not wholly typical of that seen in a classic "slap" injury.

27. The evidence concluded on the last day of the trial in the middle of the afternoon.  After a short break submissions started which had been timetabled to last for 2 hours. 

28. It is only after submissions had been completed on behalf of the local authority, the mother and the father that the judge raised with counsel for the intervenor the possibility of including the mother within the pool of possible perpetrators.  Unsurprisingly Miss Meyer QC, on behalf of the mother, rose at the conclusion of the intervenor's submissions and before those of the children's guardian to submit that a change of approach at this late stage of the proceedings would not afford the mother a fair trial process.  Miss Meyer referred the judge to the Red Book and the authority which she said supported her submission that whilst a judge could make findings not sought by the local authority, if it did so, such a departure from the findings must be securely founded in evidence and that the fairness of the fact finding process must not be compromised.

29. The judge's attention was also drawn to the fact that the evidence presented and the cross examination of the mother had not been directed to her as a likely perpetrator and that she therefore had been denied the opportunity to answer this different case.

30. The judge did not seek any further assistance on these issues and reserved judgment.  The children's guardian and counsel went on to make her submissions along the lines I have already indicated.

31. It was against this backdrop that a draft judgment was sent to the parties.  The judge made no reference to the submissions Miss Meyer had made in relation to the fairness or otherwise of the procedure which the court had adopted.

32. The judge found the injury to have been non accidental.  He held, in relation to the disclosures made by MS, at paragraph 142 of his judgment:

"I have come to the conclusion that in the light of the totality of the concerns I have set out, the disclosure made by [MS] in interview on 18th December and in his video recorded interview on 19th December are of no evidential value.  His disclosure should play no part in my determination of how it was that he sustained these injuries.  That does not mean that I am not entitled to make findings in respect of his injuries if there is evidence [which] enables me properly to do so."

The judge found that the injury had been sustained while MS was in the care of the intervener and/or the mother and concluded that there was nothing in the evidence which enabled him to identify the perpetrator on the simple balance of probabilities.  The judge therefore rejected the approach of all the parties and found instead that he was unable to identify the adult responsible for injuring MS, save to say it was either the stepfather (the intervenor) or the mother.

33. The parties sought clarification from the judge about certain aspects of the draft judgment which were in turn incorporated by him in the final judgment.  That judgment and the final judgment make no reference to Miss Meyer's protestations that the trial had been rendered unfair by the very late change of approach.  At the hearing on 5 May when the judgment was handed down, junior counsel for the mother did not specifically ask for further clarification or amplification of the judgment and its failure to give the  giving reasons as to why the judge had not accepted Miss Meyer's submissions.  Counsel had however included them in her proposed grounds of appeal produced to the judge in support of her oral application for permission to appeal made to the judge at the hearing.  The judge refused permission as having no reasonable prospects of success and referred to the fact that the matter had been raised with Miss Meyer.

The Law

34. CPR 52.11(3) provides: 

"3) The appeal court will allow an appeal where the decision of the lower court was –

(a) wrong; or

(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court."  

35. It is submitted on behalf of the mother that she was the subject of a serious procedural or other irregularity as a consequence of lack of opportunity to present a case which sought to leave her in the pool of possible perpetrators.

36. The Court of Appeal considered the extent to which a judge was obliged to adhere to a schedule of proposed findings filed by a local authority in Re G and B Fact finding Hearing [2009] EWCA Civ 10, [2009] 1 FLR 1145 Wall LJ (as he then was) said in this regard: 

"15. I am the first to acknowledge that a judge of Judge Carr's experience is entitled to take a proactive, quasi investigative role in care proceedings. Equally, she will make findings of fact on all the evidence available to her, including her assessment of the parents' credibility; she is not limited to the expert evidence. I am also content to decide the question in this appeal on the basis that a judge in Judge Carr's position is not required slavishly to adhere to a schedule of proposed findings placed before her by a local authority. To take an obvious example: care proceedings are frequently dynamic and issues emerge in the oral evidence which had not hitherto been known to exist. It would be absurd if such matters had to be ignored.

16. All that said, however, the following propositions seem to me to be equally valid. Where, as here, the local authority had prepared its Schedule of proposed findings with some care, and where the fact finding hearing had itself been the subject of a directions appointment at which the parents had agreed not to apply for various witnesses to attend for cross examination, it requires very good reasons, in my judgment, for the judge to depart from the schedule of proposed findings. Furthermore, if the judge is, as it were, to go 'off piste', and to make findings of fact which are not sought by the local authority or not contained in its Schedule, then he or she must be astute to ensure; (a) that any additional or different findings made are securely founded in the evidence; and (b) that the fairness of the fact finding process is not compromised." 

More recently in Re: R Care Proceedings Appeal [2011] EWCA Civ 1795, [2014] 1 FLR 467 Hedley J said in the context of CPR 52.11(3) that the emphasis must be on the word "serious".  The local authority submit that if there was a procedural irregularity it cannot, on the facts of this case, be regarded as having been serious.

37. Finally Miss Meyer QC, on behalf of the mother, invites the court to consider the approach adopted in the civil context of applications to strike out as seen in Labroucage v Frey Practice Note [2012] EWCA Civ 881, [2012] 1 WLR 3160.  That case was concerned with the need for oral argument in a strike out application.  Miss Meyer submits that notwithstanding the obviously different type of proceedings the case is nonetheless informative as to the type of irregularity with which CPR 52.11(3) is designed to remedy.  In particular she relies on paragraph 24: 

"But what a judge cannot properly do, however much he believes that he has fully read and fully understood all the documents and arguments before coming into court, is to dismiss the application without giving the applicant a fair opportunity to make out his case orally. It is vital that justice is seen to be done, but that is by no means the only, or even the main, reason for this. It is also because it is vital that justice is done." 

Miss Meyer also draws the courts attention to Lord Neuberger's speech in Labroucage to answers the submission, made particularly by the father, that although counsel protested at the judge's late suggestion to the intervenor's counsel that this may be a so called "uncertain perpetrator case", the fact that she did not thereafter specifically seek to recall her client or seek an adjournment of the case is fatal to her appeal.  Lord Neuberger, considering the matter, was more sympathetic to the position in which counsel finds themselves in such circumstances saying: 

"31. Of course, it is almost always possible, with the benefit of the transcript of the hearing and a careful analysis of what precisely might have been conveyed by certain words, to suggest, with wisdom of hindsight, something which an advocate could, or even should, have said. However, it is important to adopt a realistic approach to what is to be expected of an advocate (or indeed a judge or a witness) in the heat of the moment in court. Further, as Rimer LJ pointed out in argument, what one cannot get from a transcript is the tone of voice, facial expression, or even gestures of a speaker.

32. On the facts of this case, it seems to me that, unless Mr Taube can come up with any further arguments, it would plainly be wrong in principle, as well as wholly unfair on the trustees, to deprive them of their fundamental right to a hearing of their applications, simply because, with wisdom of hindsight and time to reflect and analyse, it could be said that some advocates in the position of Mr [N] and Mr [F] might have argued harder with the Judge to dissuade him from refusing to hear argument on the strike out applications."

Submissions 
38. Miss Meyer submits that what happened at trial was a serious procedural irregularity, she amplified orally what forensic steps would have been taken on the mother's behalf had it been known that the court was considering departing from the local authority schedule.  A simple recall of the mother to the witness box with it being "put" to her that she had injured MS would not have remedied the defect nor reflected the nature of the need to look at other evidence in the light of the changed case.

39. The local authority, father and children's guardian, for their part tread an uncomfortable path.  Each of their cases at trial was unequivocally that the evidence showed that on the balance of probabilities the father was the perpetrator.  Their case was that whilst the disclosure by MS must be treated with caution due to procedure deficiencies, which deficiencies necessarily effect the weight to be given, nevertheless the compelling and convincing quality of the interview, together with the other surrounding evidence, including what had happened at school the day before, the accepted view of mother as being overall a good mother and the fact that MS's three siblings each said that the intervener hit MS, together should have led inextricably to the findings sought.

40. What they each say now is that while none of them is specifically suggesting that the mother was a perpetrator, nevertheless once the judge decided that he would place no weight whatsoever or MS's disclosures it should have been foreseen by those representing the mother that, absent MS's direct evidence, the logical outcome might be that the judge was unable to find that the intervenor was responsible.  Effectively what was being said was that the mother must pay the price for having run the case in the way in which she did.  On this basis they each submit that the outcome was logical and the appeal should therefore be dismissed.

41. Further, they submit that in reality nothing would evidentially or otherwise have been significantly different had the mother been on notice that she was at risk of being in the pool of possible perpetrators, given that it is accepted that she had never previously been violent and it is broad terms a good mother. 

42. In my judgment, this mother has been denied a fair trial.  Everyone is entitled to know the case they face.  It is for that reason that this judge, well recognised as a judge who regards case management as critical to the efficient and effective disposal of cases without delay, required the parties to reduce their case to writing at the earliest opposition.

43. As matters stood at the end of the mother's submissions the mother understandably believed that she was at risk of the court finding, as it did, that the injury was caused non accidentally, that the intervener had inflicted the injury and that she had failed to protect MS either from it happening at all, or by failing to report the incident to Social Services.  Had she known she was at risk of a finding that she was a possible perpetrator it is highly likely that her legal team would have presented her case in such a way as specifically to pull together all the evidence which pointed towards her exoneration, and would support a submission that there was no real possibility that she was a perpetrator of the injury and therefore not included in the pool of possible perpetrators.

44. This particular procedural route having been adopted by the judge, it was of critical importance that the mother understood why Miss Meyer's submission that the course adopted by the judge had been unfair had been rejected.  Nowhere can the court find any such understanding or reference.

45. Whilst providing the caveat that each case inevitably turns on its facts, in my view, whilst a finding of failure to protect is a serious finding and can lead to children being removed from the care of their parents on a permanent basis, a finding, as here, that there is a real possibility that the mother herself inflicted an injury on one of her children is different and often more serious than a finding of failure to protect, particularly where, until now, the children have remained in the mother's care despite the care proceedings and despite her relationship with the intervener. 

46. Mr Verdon urges strongly that all the evidence needed to be before the judge and the late introduction of the mother as possible perpetrator had no impact on the outcome.

47. These children have been subject to court proceedings in one form or another since May 2011 or early 2012.  One's judicial heart sinks at the prospect of the inevitable delay for the children if the matter has to be reheard.  I recognise that some procedural errors, whilst regrettable, cannot in themselves be regarded as so serious as to undermine the fairness of the trial.  Similarly sometimes the outcome of a trial is completely foreseeable and even inevitable, with the result that a procedural error, whilst on the face of may have been serious, does not even so undermine the outcome or render the trial unfair under Article 6.  In such cases the Court of Appeal will be slow to intervene and order a retrial with all consequent expense and delay.

48. In my judgment, however, in the present case, the procedural error is so serious that the question whether the outcome would have been the same and whether evidence would be broadly similar is really beside the point.  This mother was being deprived of the opportunity to meet a case which, for the first time in all numerous hearings and ups and downs of this family, suggested that there was a real possibly that she had physically assaulted one of her children.  In my judgment, in adopting the course he did, the fairness of the fact finding process was fatally compromised and the appeal must therefore be allowed and remitted for a rehearing.

49. During the course of submissions consideration was given as to the future status of the finding that the injury itself was caused non accidentally.  Unsurprisingly Miss Meyer submits that all findings should be set aside including the medical findings.  On behalf the father, the local authority and the children's guardian it is submitted that it is possible in this case to ring fence the medical evidence and the medical findings.  Having had an opportunity of re reading the judgment in that respect, having heard those submissions, I agree.  In my judgment, the finding that this was a non accidental injury will not be set aside and any future re hearing will deal with the issue of perpetration and not whether or not the injury itself was caused accidentally or non accidentally.

50. Finally, I should say that the intervener   I know is not represented and I do not believe is in court today   will need to be informed of the outcome, if not today, tomorrow, because over the course of the short adjournment I have had an opportunity of speak to Keehan J, the Family Division Liaison Judge for the Midlands Circuit who has agreed to put the matter in for an urgent directions hearing next Wednesday at 10 o' clock.  That is my judgment. 

51. LORD JUSTICE VOS:  I agree. 

52. LORD JUSTICE LONGMORE:  I agree also.