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W (A Child) [2009] EWCA Civ 538

Application for permission to appeal by parents against orders arising in adoption proceedings where the child was removed from them shortly after birth as a result of a finding against the father involving non-accidental injury to a child of a previous relationship. Application refused.

The father had been found to be one of the possible perpetrators of a non-accidental injury to a child of a previous relationship even though the child, now suffering from cerebral palsy had returned to live with him and his former partner after leaving hospital: indeed the father continues to have contact with him. The child of the father’s new partner was removed and placed with foster carers mostly on the strength of that finding. When the local authority sought adoption for the child, the parents applied for residence and a stay of the adoption proceedings both of which were refused by Hedley J.

The parents’ applications for residence rested on possible new medical evidence that might challenge the finding against the father. In the High Court Hedley J rejected that claim but in this application the parents argued that he had erred in his use of the applicable burden and standard of proof. In refusing the application, Wilson LJ concluded that the trial judge had handled the evidence and burden properly and followed B (Children) [2008] UKHL 35 but also noted that he had

"considerable sympathy with the proposition set out in paragraph 12 of [the appellant’s] skeleton argument that “the judge in picking one expert’s evidence in a situation in which there is uncertainty, is creating certainty where no certainty exists”.  That argument, if I may say so with respect, shows considerable insight.  All professional lawyers are from time to time concerned that, although a fact has been found to exist only on the balance of probabilities, the court then proceeds to assume, for the purposes of its determination of the proceedings, an immutability in relation to that fact which is quite unrelated to any balance of mere probability.  The fact is that many decisions made in the courts -- and indeed many which we make in the course of our every day lives -- have to be made in circumstances in which there is a minority residual doubt about the facts upon which those decisions are founded."

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Case No: B4/2009/0261

Neutral Citation Number: [2009] EWCA Civ 538
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY, FAMILY DIVISION
(THE HON. MR JUSTICE HEDLEY)
(LOWER COURT No FD08C00046)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday, 20th March 2009

Before:

LORD JUSTICE WILSON

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IN THE MATTER OF W (A CHILD)


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(DAR Transcript of
WordWave International Limited
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The Applicant Mother appeared in person, on behalf of herself and the Applicant father and she was assisted by Mckenzie friend, Mrs Docherty

The Respondents did not appear and were not represented

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Judgment (As Approved by the Court)
Crown Copyright©
 
Lord Justice Wilson:
1. Married parents, living together, apply for permission to appeal against orders made by Hedley J in the High Court, Family Division, Principal Registry, on 30 January 2009.  I am sorry to have been told this afternoon that the father is indisposed today and in effect unable to attend court.  The mother has attended court, with the considerable support of Mrs Docherty, her McKenzie friend; and the mother has been endowed with authority by the father to speak on behalf of both of them in support of the application.  The mother’s submissions were no less helpful for having been short.  She made the submissions primarily by reference to notes made, perhaps, with the assistance of others; and I am very grateful to her for taking on the burden of addressing the Court of Appeal this afternoon.

2. The proceedings relate to their child, who has been given the initial A.  She is a girl who is now aged four.  It is a tragedy, at any rate for the parents, that A has never lived with the father and has scarcely lived with the mother.  For the first four months of her life, A lived with the mother in the home of the maternal grandparents; but thereupon she was placed in short-term foster care pursuant to a series of interim care orders.  In October 2006, notwithstanding the most active opposition of the parents, orders were made which placed A in the full care of the London Borough of Enfield (“the local authority”) and authorised A’s placement for adoption.  Those orders, sought by the local authority, have also attracted the support of A’s Children’s Guardian.  It was shortly after the making of those orders that the contact of the parents with A, which had been supervised, ceased.  In April 2007 Munby J, sitting as an additional judge of this court, refused the application of the parents for permission to appeal against the care and placement orders.  Accordingly, albeit only in March 2008, A was placed for adoption.  The proposed adopters have now issued an application for an adoption order to be made in relation to A and their application is fixed to be heard next month, April 2009.  

3. The applications determined by Hedley J were applications by the parents to put the programme for A which the court had endorsed in October 2006 into reverse.  Thus the parents applied for a residence order in relation to A.  They also applied for a stay of the adoption application; and the judge treated that application as including an application for leave to be given to them to oppose the adoption application, were it not to be stayed.  The parents also applied for variation of an injunction against media reporting of, at any rate, certain aspects of the proceedings relating to A. 

4. Hedley J heard the parents’ applications on 14, 15 and 16 January 2009.  He reserved judgment for a fortnight and then handed down a written judgment, by which he dismissed the applications.  It is against his dismissal of their applications that the parents wish to appeal.  At the hearing before the judge the parents appeared in person; and I get the impression that on that occasion the father was well enough to attend along with the mother.  Again, they had the assistance of a McKenzie friend perhaps, I know not, Mrs Docherty again.  Counsel appeared both for the local authority and for A by her Children’s Guardian and both of them opposed the applications of the parents.  

5. What was the basis upon which A had been taken from the parents, close to birth, and upon which she was later made the subject of a full care order and indeed a placement order?  The primary foundation of the case for removal related to circumstances surrounding another child of the father by a previous marriage; thus those circumstances in no way involved A’s mother.  The whole case is inherently sensitive, painful and worrying; but among its most haunting features is surely the fact that A’s mother, who sits before me today, has, subject to this proposed appeal, lost her child by reference to circumstances which, largely, do not relate to her.  

6. By the father’s previous marriage, to a woman known as K, there were two children, namely X, a girl now aged 11, and Y, a boy now aged ten.  On 30 March 1999, when he was aged about two months, Y was admitted to hospital and was found to have suffered serious brain damage.  Its horrible legacy has been cerebral palsy.  There were no external signs of injury upon Y; neither of Y’s parents provided any history, for example of some accidental incident of a traumatic character, which had occurred that day and which could have perhaps accounted for his brain damage.  The local authority took care proceedings in relation to Y and also to X; and on 6 March 2000, following a substantial hearing, District Judge Bradley, sitting in the High Court, Principal Registry, found that Y had suffered a non-accidental head injury and that, in the light of the evidence of the parents, when considered alongside the evidence of the experts, it could have been suffered only whilst he was in the care of one, or other, or both of them.  The district judge was unable to choose between those three possibilities.  At the hearing before the district judge, the parents of X and of Y had been represented by very experienced junior counsel, soon then to be elevated to the circuit bench.  The pivotal medical evidence before the district judge was apparently that of Dr Nelson, a consultant neuroradiologist.  His evidence was that the constellation of internal head injuries suffered by Y strongly suggested that they had been inflicted non-accidentally within a few hours, or at least within no more than 24 hours, prior to his presentation at hospital.  Thus the district judge found that the threshold set by s.31 of the Children Act 1989 (“the Act”) to the making of care orders was crossed in relation not only to Y but (so my reading of her judgment suggests, although the parents have contended otherwise) also to X.  

7. As Hedley J pointed out in the judgment now under proposed challenge, the sequel to the hearing before the district judge in 2000 was unusual.  I am not clear that X had ever been removed from the care of her parents.  It appears at all events that, shortly after his discharge from hospital in May 1999, Y went back to live with them.  There soon came a time when, notwithstanding the injuries to Y and the responsibility, as found by the district judge, of one or other or both of the parents for those injuries, the local authority were content that both children should continue to reside with their parents.   Unfortunately, however, the parents were soon to separate.  It appears that, following the separation, X and Y have remained living with their mother and that the father has continued to have unsupervised contact with them.   That has led to a very pointed question addressed by the mother to me this afternoon: “If my husband is seeing Y, why are we not seeing A?” 

8. The precipitant to the present round of proceedings in relation to A was evidence which the father and A’s mother collected in 2008 which appeared to cast doubt upon the conclusion of District Judge Bradley in March 2000 that Y had been the subject of non-accidental injury.  The evidence was that of Dr Squier, the well-known and indeed distinguished consultant neuropathologist attached to the Oxford Radcliffe hospitals and, as an honorary clinical lecturer, to Oxford University itself.  By a report dated 30 May 2008 she suggested, following her review of some of the records compiled by the hospital in relation to Y in and after March 1999, that his injuries might very well not have been non-accidental.  She noted the presence of what is nowadays often called the “triad”, namely the constellation of subdural haemorrhage, of retinal haemorrhage and of hypoxic-ischaemic damage; but she expressed the view that all those features might well be explicable as the result of cerebral venous sinus thrombosis rather than non-accidental injury.  She strongly recommended that the brain scans then taken upon Y should be reviewed and that a formal opinion should be sought from an experienced paediatric neuroradiologist.  In September 2008 Dr Squier wrote a second report following her perusal of further notes and reports made in relation to Y in 1999.  She then said that she found no references to, or indications of, a sinus thrombosis; and indeed she ultimately abandoned that hypothesis.  In this second report, however, she offered an alternative hypothesis, namely that it was far more likely that, instead of his having suffered a non-accidental injury, Y had, as the result of some trivial injury during normal handling, suffered a re-bleed following an initial subdural bleed, which is by no means uncommon at the time when babies are born.  

9. The local authority thereupon obtained leave to instruct Dr Stoodley, who, being a consultant neuroradiologist, had the specialism which Dr Squier had identified as appropriate.  In the event it emerged that the brain scans taken upon Y in 1999 no longer existed or at least had been mislaid; but it appears to have been common ground between the two experts that the radiological reports made in 1999 adequately conveyed what a study of the scans themselves would have shown.  It was as to the interpretation of that radiological evidence that Dr Squier and Dr Stoodley were at odds.  For the evidence of Dr Stoodley was that the most likely cause for the constellation of injuries sustained by Y was, indeed, as had been found by the court in 2000, a non-accidental head injury caused by shaking.  

10. At the hearing before Hedley J in January 2009 both Dr Squier and Dr Stoodley gave oral evidence.  I need not review the detail of their evidence because, in my view wisely, the parents, by which of course I mean the parents of A, namely the applicants today, do not in effect put forward as a ground of appeal that, for some reason, the evidence of Dr Stoodley was flawed.  They certainly make that no part of their case in their grounds of appeal or in their skeleton argument.  I should record that, in the course of her oral submissions this afternoon, the mother has just touched upon it and has suggested that Dr Stoodley was unable in the witness box to answer all the questions put to him by her and/or by the father.  Of course, without a transcript of all the proceedings before the judge, and not just of his judgment (which we have), that is an assertion which cannot be made good; but, more relevantly, it is, as I have said, not an assertion which is made in the grounds of appeal upon which I must focus today.  So I need say little about the detail of the medical dispute between the two experts.  It suffices to say that it was the view of Dr Stoodley that a re bleed in the subdural space, following an initial birth-related haemorrhage, was most unlikely.  In this regard he pointed to the brightness of the blood reported on the scans; to the fact that Y had suffered haemorrhages not only at the front of his head but also at the back; and that there was nothing in the evidence collected in 1999 to indicate that Y had had a chronic or birth-related susceptibility to bleeding of this sort.  He pointed to the absence of any suggestion on the part of the father or of Y’s mother in 1999 that there had been any incident in the course of their care of him on that day which might have triggered a re bleed.  And, as Hedley J pointed out, all this was evidence from the type of specialist whom Dr Squier had specifically identified as the most appropriate reviewer of the contemporaneous evidence. 

11. Mindful no doubt of the extreme difficulty which would have confronted them in seeking to establish in this court that the judge had made an appealable error in his evaluation of the factors relied upon by each of those two experts, the parents cast their grounds of appeal on a wider basis and, very largely, within the rubric of paragraph 1 of their grounds of appeal, namely that the judge fell into legal error in his analysis of the applicable burden of proof and standard of proof.  In this regard the judge said:

“This judgment is concerned with one question: can it be shown on the evidence that I now have that the finding made in relation to ‘Y’ was erroneous?  That issue is to be determined on a balance of probability.  I said to the parents at the beginning of this case that they bore the evidential burden of proof but that I hoped that the case would not be determined on that basis but that I could decide clearly the medical issue.”

12. Of course in the courts the phrase “the evidential burden of proof” is quite often used in contradistinction to the “legal burden of proof”.  I do not believe that, in context, the judge’s use of that phrase was intended to raise that distinction.  I believe that, as the parents submit, the judge proceeded on the basis that the legal burden of proof rested upon them and that his use of the adjective “evidential” was intended to convey only that he was seeking to apply a law relating to evidence.  One of the primary foundations of the proposed appeal is that the judge fell into error in that regard and that the burden of proof should have rested upon the local authority to establish both that the injury to Y was not accidental and that A was likely to suffer significant harm for the purpose of s.31(2) of the Act.  With great respect to the parents, I am clear that their submission of law in this respect is erroneous.  I have no doubt that, as the parents asked him to do, Hedley J, albeit not sitting in any appellate capacity, was entitled to allow them to attempt to challenge the findings of District Judge Bradley on 6 March 2000.   Indeed, although there was clearly a degree of further material weighed by the court in the proceedings relating to A in October 2006, including in particular in relation to the respective and very different personalities of the parents of A, I am clear that the previous findings in relation to Y formed a major part of the foundation of the conclusion that in relation to A the evidence crossed the statutory threshold.  In circumstances, however, in which the district judge had made her findings in relation to Y, which had of course had to be established to her satisfaction by the local authority, I am clear that the burden of proof in the proceedings before Hedley J was indeed, as he stated, upon the parents of A to establish that those findings were wrong.   In the event, however, this issue is entirely academic.   In the passage of his judgment which I have read the judge expressed the hope that he would not be driven to determine the case simply upon the basis that the parents had failed to discharge the burden of proof.  In the next paragraph of his judgment he proceeded to explain why that hope had been fulfilled.  For he said:

“I come to my conclusion because on the central issue I find both that [Dr Squier] is wrong and that Dr Stoodley, on a clear balance of probabilities, is right.”

So the judge’s conclusion was not that the parents had failed to establish that the injuries were other than non-accidental; his conclusion was positively that Dr Squier had been wrong so to suggest; and that, by contrast, Dr Stoodley had been right to suggest that the injuries were non-accidental.

13. I have made clear that the judge decided to determine the issues before him on the balance of probabilities.  The parents would wish to argue in this court that he thereby fell into error and that the seriousness of the enquiry both for A and for themselves dictated the adoption of something close to a criminal standard of proof.  Indeed this afternoon the mother of A has drawn my attention to a passage in the judgment of the judge in which he observed that the evidence of non-accidental injury would not in his view have satisfied the criminal standard of proof.   Looking at the sentence again, however, I wonder whether he may have been saying instead that the evidence was not such as to amount to proof against the father to the criminal standard that he was the perpetrator of non-accidental injury.  I need not dwell on those two different interpretations of his judgment further, for these, of course, are not criminal proceedings. 

14. It seems that, in their distress and indignation, the parents may already have approached the European Court of Human Rights for redress in relation to the determination by our courts of the proceedings relating to A and that, following the conclusion of the proceedings in these courts, they may wish again to approach that court.  They do not hide from me in their written argument that they might wish to argue to the court in Strasbourg that the standard of proof adopted by the judge was indeed too low and in breach of their rights and those of A under the European Convention on Human Rights.  But it is the applicants themselves who have helpfully reminded me of the decision -- of which, of course, I am actually well aware already -- of the House of Lords in In Re B (Children) (Care Proceedings:  Standard  of  Proof)  (CAFCASS Intervening) [2008] UKHL 35; [2009] 1 AC 11; and I believe that, in effect, they recognise that, as a matter of domestic law, it is now established at the highest level that factual issues in care proceedings are determined on the balance of probabilities and indeed that, within that balance, there is no sliding mechanism calibrated in accordance with the seriousness of the enquiry.  I have considerable sympathy with the proposition set out in paragraph 12 of their skeleton argument that “the judge in picking one expert’s evidence in a situation in which there is uncertainty, is creating certainty where no certainty exists”.  That argument, if I may say so with respect, shows considerable insight.  All professional lawyers are from time to time concerned that, although a fact has been found to exist only on the balance of probabilities, the court then proceeds to assume, for the purposes of its determination of the proceedings, an immutability in relation to that fact which is quite unrelated to any balance of mere probability.  The fact is that many decisions made in the courts -- and indeed many which we make in the course of our every day lives -- have to be made in circumstances in which there is a minority residual doubt about the facts upon which those decisions are founded.  This important general, almost philosophical point is addressed, in particular, by Lord Hoffmann in Re B (Children) at [2]. 

15. Other arguments raised by the parents, namely their understandable concern that statistics show that a significant proportion of adoptions fail and that, in later life, children who have been adopted not uncommonly resent that they were prevented from enjoying a family life with their biological family, are arguments which no doubt weigh heavily with the parents, confronted as they are with the painful prospect of an imminent adoption; but, with respect to them, they scarcely bear upon the issue determined by the judge.  

16. I should add that, in paragraph 8 of their grounds of appeal, they assert that the hearing conducted by Hedley J did not comply with their rights under Article 6 of the European Convention 1950 in that there was no “Daubert” hearing.  I have only limited understanding as to what a “Daubert” hearing is, and so I asked the mother this afternoon for assistance in that regard.  She frankly said that she could not give me that assistance and that the grounds of appeal had been drafted, at any rate partly, with the assistance of a third party who had suggested the inclusion of that point, upon which she was, therefore, unable to expand.   My own limited research into this interesting reference has led me to the decision of the US Supreme Court in Daubert v Merrill-Dow Pharmaceuticals Inc [1993] 509 US 579.  I have not got access to the report of that case itself, and, as I have explained, A’s mother has not pressed this point this afternoon.  My understanding is that the decision of the Supreme Court was to approve a procedure whereby, where a judge is sitting with a jury in US courts in civil proceedings (which is not a scenario very common in our jurisdiction), it is sometimes helpful for a judge to conduct, without the jury, his own “trial within a trial” into the strength of, and/or relevance of, expert evidence intended to be adduced before the jury.  If my understanding of that case is anything like correct, then the mother will understand why I rule that it has no relevance to the proposed appeal.

17. Notwithstanding my very great sympathy on a personal level for the mother and indeed for the father of A, I am clear, looking at the matter coldly as a lawyer, that the proposed appeal has no real prospect of success; and I refuse permission for it to proceed.  

Order:  Application refused